After Judge Tanya Chutkan ordered a redacted version of the government’s filing on immunity to be released, new information about Donald Trump’s post-election efforts came to light. Jack Smith argues that the allegations detailed in the filing were “fundamentally” done as a candidate, and not in an official capacity. Veteran prosecutors Mary McCord and Andrew Weissmann frame the government’s case, describing the new allegations now in the public sphere and Trump’s continued assertion that this is “election interference.” Then, they review another motion to dismiss brought by Trump’s lawyers, this one referencing the Fischer case.
Also, some exciting news! Prosecuting Donald Trump and Into America have been nominated for the Signal Listener’s Choice Award! And MSNBC needs your help to win. Use the links below to vote for both shows:
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Further Reading: Here is Special Counsel Jack Smith’s unsealed Motion for Immunity Determinations.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissman: Hi, welcome back to “Prosecuting Donald Trump”. It is Tuesday morning, really early Tuesday morning. We’re recording this at 8:30 in the morning —
Mary McCord, MSNBC Legal Analyst: Yeah.
Andrew Weissmann: — which —
Mary McCord: Four people who go to work at like 5:00 and 6:00 A.M. are going to be like, Andrew, that’s not really early, the sun is up.
Andrew Weissmann: I know but I’m a New Yorker. So, one, we get to work late, we stay at work late.
Mary McCord: True.
Andrew Weissmann: But, I mean, you’re a D.C. person, so you’re used to being up really early. By the way, I’m Andrew Weissmann, you’re a Mary McCord.
Mary McCord: That’s right, yes. We both —
Andrew Weissmann: Right.
Mary McCord: — used to have to do FBI directors’ briefings —
Andrew Weissmann: Exactly.
Mary McCord: — very early in the morning.
Andrew Weissmann: And I would —
Mary McCord: And that meant really early, not, you know, fake early.
Andrew Weissmann: I would drag my sorry derriere. Was that for —
Mary McCord: Yeah.
Andrew Weissmann: — trying to be polite?
Mary McCord: Yeah.
Andrew Weissmann: I’d drag it in around like 7:00 A.M. to be ready for the 7:30 briefing of the director and then it would be an 8 o’clock briefing of the attorney general and the deputy attorney general and then the FBI director, those folks would go off to the White House —
Mary McCord: Yeah.
Andrew Weissmann: — and brief the president. And I would just be like, “Oh my God, I can’t believe it because I’m a New Yorker. I don’t function at 7:00.” But, you know, the agents to do the briefing at 7:00 —
Mary McCord: Yeah.
Andrew Weissmann: — they would be in it like, you know —
Mary McCord: Middle of the night.
Andrew Weissmann: — 5 o’clock.
Mary McCord: Yeah, practically.
Andrew Weissmann: Yeah, exactly. And the briefer, which is just an incredible skill, we should actually at one point talk about —
Mary McCord: Yeah.
Andrew Weissmann: — like, the briefer who does the briefing of the director and then the attorney general, they sort of have a reversed schedule. They are sort of —
Mary McCord: Yes.
Andrew Weissmann: — asleep during the day and up at night, and it’s just this unbelievable skill.
Mary McCord: Yeah.
Andrew Weissmann: But in any event —
Mary McCord: That’s not our topic for today.
Andrew Weissmann: — that’s not. And also, I should stop complaining because 8:30 is, like, they’re ready to go home.
Mary McCord: I know.
Andrew Weissmann: It’s like the day is over.
Mary McCord: They’re finished with their day, yes.
Andrew Weissmann: And, Mary, this is breaking news, which is, we just learned that our podcast is nominated for another award. We’ve been nominated for a Signal Award, and it’s one where you can vote for us, and we’ll put in the show notes, a link to where you can vote for us, but it’s at vote.signalaward.com.
And we are nominated in the News and Politics category. If you like the podcast and want to vote for us, we’d really appreciate it. And we also, our sister podcast at MSNBC, “Into America,” has also been nominated for an award. So, if you want to vote for them, they’re also a great podcast to listen to.
So, Mary, it’s so nice to get this in addition to be able to do this every week with you. Okay, I think our producer’s probably going, “Are we going to get to the show?” And I think —
Mary McCord: And this is a big deal today, right?
Andrew Weissmann: Big, big.
Mary McCord: Yeah. We haven’t gotten to talk to each other since Jack Smith redacted filing on immunity, was filed last week.
Andrew Weissmann: I know.
Mary McCord: We both talked on other, you know, media about it, but not to each other, so.
Andrew Weissmann: Not importantly with each other.
Mary McCord: That’s right.
Andrew Weissmann: It’s like, we’ve just been talking to the rest of the MSNBC world.
Mary McCord: Yeah. And PBS, they did that and various other print media, so.
Andrew Weissmann: I do this great radio show here, Brian Lehrer, who is on WNYC. And I always loved doing that show because I’ve been a fan of that show for, I’m too embarrassed to —
Mary McCord: Yeah, don’t say the number of years. You don’t have to.
Andrew Weissmann: Exactly. But it’s like, it actually is always an honor doing that too, I jumped on air. But, anyway, so we’re going to talk about the immunity brief, 182 pages. Anything else?
Mary McCord: So then, you know, and some of the things around that, right, like the briefing over redactions of sensitive material, and also, I would say Mister Trump’s reactions to that brief because I think they’re significant and worth talking about. He is calling this all-election interference, and we need to explain what sort of DOJ guidance is in terms of taking actions in proximity to an election.
Then we will move on to another motion that was filed last week, and this one was by Mister Trump’s attorneys, and this is his renewed motion to dismiss the indictment, now, superseding indictment on statutory grounds.
That is a motion that had been denied by Judge Chutkan right when the case came back to her, but it would have been denied without prejudice to re-bring it again. And that is basically his Fischer motion in light of the Supreme Court’s decision in Fischer on obstruction of official proceedings. Those counts should be dismissed, and we’ll talk about that briefly.
Andrew Weissmann: Yeah. And I think also, there are couple listener questions that we got, that I think will help inform our discussion. And then there also is a decision by Judge Chutkan, we’ll talk about, that got very little play.
You know, it’s the decision that announced that the brief would actually now be filed, and that’s sort of an interesting brief. She had some very choice words for the advocacy that on the part of Trump’s counsel basically saying, “You know, I want everyone to show decorum and stop with a political rhetoric.”
But with that, I love this, this is like D.C., D.C., D.C. Mary, do you want to start us off? Maybe we’ll start first with the brief —
Mary McCord: Yeah.
Andrew Weissmann: — and, you know, your thoughts about it.
Mary McCord: Yeah, absolutely. Remember, this is a brief that the special counsel is filing after a scheduling order was entered by Judge Chutkan, the judge in the District of Columbia D.C., District Court, in response to the Supreme Court’s decision on immunity.
So, this is one that the parties had argued about Mister Trump, and we’ve talked about this before, and his attorneys had said at least three, four times orally and in writing, “You should not let Jack Smith file this brief. We should go in a different order. We should file a motion to dismiss first. Jack Smith should respond to it. And frankly, we should push all this off until well after the election.”
I think in her view and in the special counsel’s view, responding directly to what the Supreme Court said they needed to do at the threshold determine issues of immunity. This scheduling order was put into place. And that’s what resulted in the special counsel filing this very lengthy motion for immunity determinations.
So here is where he is explaining how the charges in the superseding indictment and the evidence of those charges are either not official acts and therefore not immune from prosecution, or if they are official acts, he can rebut the presumption of immunity by proving that prosecution would not pose any danger of intrusion on the functions or authority of the executive branch, the president, right?
Andrew Weissmann: So, Mary, I was talking to somebody this weekend and I was trying to boil down sort of the legal principle, the brief, and basically, what the brief is trying to focus on is, when was Donald Trump acting as a candidate?
Mary McCord: Yes.
Andrew Weissmann: Right? Because if he’s acting as a candidate, it is not in his official capacity, you can be president, but also running for office. And so, that really is the main focus. Is he doing this as a candidate as opposed to something that the president would do?
Mary McCord: Yeah. As the government asserted right on Page 1, working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt through fraud and deceit, the government function by which votes are collected and counted, a function in which the defendant as president had no official role.
You know, the two main sort of themes here, I think, is this was a private scheme done with private actors, private attorneys, private advisers, not people who were actually U.S. federal, executive branch, government employees, because the part of the original indictment that applied to the Department of Justice and Trump’s pressure on the Department of Justice to launch a bunch of election fraud investigations and tell the states that there was fraud in the election, that is the part that the Supreme Court said was absolutely immune. So that’s gone now.
So this motion emphasizes his work with private actors, that’s thing one, private attorneys like Giuliani, private advisers like Steve Bannon, that’s thing one. The other thing is, everything, according to Jack Smith, that he’s proposing in this motion and that is charged in the superseding indictment are things over which a president in his official capacity has no official role. Therefore, they must be done in his private capacity.
Things like how the states determine who the electors for the states will be, that relates to the pressure on state legislators and state officials to send up new slates of electors. It relates to the organization of the fraudulent elector scheme, because as Jack Smith made clear and as Justice Amy Coney Barrett made clear in her concurrence, the slates of electors from the states are committed to the state by the Constitution, that’s something over which the president has no official role.
Andrew Weissmann: And that’s where Justice Barrett said, “Some of these calls, the distinction between official and unofficial, can be difficult,” but she said, “and some are not.”
Mary McCord: That’s right.
Andrew Weissmann: And she’s like, “When it comes to what Trump was doing with the states and the pressuring CEG,” as an example, Georgia, she goes, “that’s clearly unofficial activity.”
Two quick thoughts on what you’re saying, Mary. One is, I’m going to fight the decision, and the other is to say, even if it is something that the president does have a role in, what you’re saying is absolutely right, in other words, that if the president has no role, it’s really clear that, A, fortiori, that it would be clearly not presidential.
Mary McCord: Or it should be.
Andrew Weissmann: It should be, exactly. But even if the president does, in theory, have a role, it doesn’t mean that Donald Trump was acting as president as opposed to acting as a candidate —
Mary McCord: Yeah.
Andrew Weissmann: — when he did it. So, for instance, you could imagine a president who’s concerned about just general election fraud that’s going on in the states.
Mary McCord: That’s official, right? And the Supreme Court told us that.
Andrew Weissmann: Exactly. So, even if it’s sort of in the general area, it’s not necessary for Jack Smith to show that it’s solely things that president could have no interest in means that he has to show that to win.
The other is, it just shows, the point about DOJ just is so annoying because that’s just a classic example of, of course, the president has a role in speaking to the Department of Justice. They’re within the executive branch. But you could be doing that as a candidate.
Mary McCord: Yes.
Andrew Weissmann: I mean, that’s why —
Mary McCord: Yeah.
Andrew Weissmann: — it is just so outrageous that if you have the president acting as a candidate to say, “I need you to announce a sham investigation because it’s going to help me win the election.” How is that not frigging candidate unofficial activity? And that is what the Supreme Court has categorically ruled as core presidential activity that cannot be considered. So that’s why all of that is out.
Mary McCord: Yeah.
Andrew Weissmann: Mary.
Mary McCord: Well, I hate to jump past the stuff that has to do with Vice President Pence, but something you said triggers me to do that. So we’ll come back to Vice President Pence. But particularly, when we talk about, it could certainly be within a president’s official acts to talk generally about concerns about fraud in the election, right? That’s something the Supreme Court told us, and there could be legitimate concerns, right?
There aren’t from 2020, but there could be theoretically. I think this was brilliant on the part of the special counsel in showing in this lengthy motion that when Trump was reaching out to state legislators and state officials, he only reached out to Republicans.
So, where the state had a Republican governor or Republican secretary of state, he’s reaching out, talking about fraud in the election, “You need to redo this.” He refers to the party many, many times, the Republican Party.
If it’s a state with a Democratic governor or secretary of state like Michigan and Pennsylvania, he was not reaching out to the governor. He was reaching out to selected Republican state legislators, pressuring them to change things.
So, if he believed there was broad election fraud, why would you not be reaching out to everyone saying, “We have a real problem with this election, and it’s not just the election of me, it’s election of everyone on the ballots.”
Andrew Weissmann: Right, right.
Mary McCord: “Democrats and Republicans.”
Andrew Weissmann: And not just at the presidential level.
Mary McCord: Exactly.
Andrew Weissmann: Because remember, there were all sorts of other —
Mary McCord: Down ballot, yes.
Andrew Weissmann: People down ballot. And so, the fact that he was only focused on himself and only contacting Republicans is such a good indicator. And then, of course, as icing on the cake to make this, “This is all so insane and outrageous,” is yet, do have the tape recording of Brad Raffensperger, because if you were really concerned about this, one, you wouldn’t be fighting people who know the data who say, “There’s no problem here,” and two, you wouldn’t be saying, “Find me the exact number of votes to make me win.”
Mary McCord: That’s right.
Andrew Weissmann: None of that is consistent with just general concern about fraud in the election as opposed to, “I just want to win.”
Mary McCord: Yeah. And another way of putting it, and this is what the Supreme Court talked about when it was referring to a civil case where Trump had sought immunity in a case trying to hold him liable for damages for injuries to people, Capitol police officers and others.
The D.C. Circuit there had referred to actions as an office seeker rather than an office holder, being a good way to differentiate.
Andrew Weissmann: Yeah.
Mary McCord: And I think that’s another —
Andrew Weissmann: Yeah.
Mary McCord: — good way to put this. He’s an office seeker in those particular interactions.
Andrew Weissmann: So, Mary, we had a question that came in that had a sort of very interesting way of framing and asking us whether one way to look at this is essentially, would the same actions have occurred if both Trump and Pence were not running for reelection? And I think that is a useful device. It’s not everything, but I thought that was a really smart way to be thinking about the distinction that Judge Chutkan’s going to have to make. That was, by the way, Tracy.
Mary McCord: That’s right.
Andrew Weissmann: So, thank you, Tracy.
Mary McCord: And that does particularly go to the other part of the filing that I just kind of glossed over, which is, there’s a lot of discussion in here about the pressure on Vice President Pence.
And not just the pressure, but the lead up to January 6th, where they had many, many discussions, where Trump is trying to push these different theories of election fraud and Vice President Pence’s repeatedly coming back to him and saying, “Essentially, the evidence isn’t there. Try again next time.” He says at various points, “Look, you’ve rebuilt this party, reinvigorated this party, you can try again another time.”
And then it goes all the way up through, of course, those last few days before January 6th, where he’s really pressuring Pence because Pence is saying, “I do not have the authority to reject the legitimate votes, the certified electoral ballots from the states. That’s not my authority. My authority is ministerial.”
And at every turn, the former president is arguing with him and then going out and saying publicly that Vice President Pence does have this authority. And then, of course, it culminates on January 6th when while former President Trump is watching the assault on the Capitol on television, learning from his advisers that Pence is under threat and the other members of Congress are under threat, we nevertheless have Donald Trump in the afternoon tweeting that if Mike Pence had had the courage to do what needed to be done, the result would be different, which immediately after which Pence had to be evacuated because of people who wanted to hang him.The point with all of that, to go to Tracy’s question, those were —
Andrew Weissmann: Yeah.
Mary McCord: — conversations as running mates, right? Those were conversations as running mates, as office seekers, as candidates, not part of some sort of official, “Let’s have a discussion.” Tracy’s questions asked, “What if their conversation was about troops in Iraq?” Yeah, those are the kind of things that president and his vice president talk about official action. This was all about their running for reelection.
Andrew Weissmann: So, I wonder if we should take a quick break and then I have a couple of thoughts on what you were saying and then we can continue the conversation because I think the Pence stuff is really —
Mary McCord: Yes.
Andrew Weissmann: — the interesting part of this brief because it’s so new because obviously. he did not testify in the January 6th committee hearings. And so, this information rightly, you know, everyone has been very focused on, and I think there’s a few more things to tease out. And then we’ll move on to Judge Chutkan’s decisions and other filings before her.
Mary McCord: Yeah, that sounds good.
Andrew Weissmann: Mary, welcome back. By the way, in case people heard birds while you were talking, that’s from me. And so, I have two birdfeeders and I —
Mary McCord: I do too. But I told my birds to please be quiet right now because we’re recording. And mine are so well-behaved.
Andrew Weissmann: I have rude birds.
Mary McCord: They felt strongly. They felt strongly about this filing, and they wanted to say something about it.
Andrew Weissmann: They wanted to chirp in.
Mary McCord: Oh gosh, okay, all right. We’re just too funny this morning.
Andrew Weissmann: Okay, too early. It’s like, okay, dad joke over. So, turning back to something serious, with respect to Mike Pence, I wanted to focus on two things you said and really focus on the time period of January 6th. So, one, I thought, just to pick up exactly where you left off, the brief was quite pointed about a couple things that Donald Trump sort of explicitly threatened and said to Pence, “Because you’re not going along with this, I’m going to have to attack you publicly.” And that led to his staff alerting the Secret Service to the danger that would be entailed with that. And then, of course, we’ll get to the point that there, in fact, was on January 6th threats to, quote, “Hang Mike Pence,” unquote.
Mary McCord: Hang Mike Pence, yes.
Andrew Weissmann: So that was explicit. They also were extremely pointed that after Mike Pence had said to the then president that he disagreed and could not go along with this, that Donald Trump issues a tweet and they say is a, and this is a quote, a lie that says, “That Mike Pence agrees with me that he has the authority,” so they’re very pointed.
Mary McCord: Yes.
Andrew Weissmann: I always thought that was an incredibly strong point for both a criminal case that’s obviously really good for showing intent, but it’s also really good for showing that this is unofficial —
Mary McCord: That’s right.
Andrew Weissmann: — candidate action, which is now necessary. So very, very pointed. And when I was looking at the brief and hearing about all of the details that they have for what happened on January 6th, essentially you have this struggle where people at the White House are trying to get Donald Trump to act in his official capacity.
Mary McCord: Right.
Andrew Weissmann: That he is acting in his unofficial capacity as a candidate with a single focus of just wanting to win as a candidate. And you have these people pleading with him to act as an official.
And so that it is actually a story of, he wouldn’t take on the responsibility that you should have as president. And that just, to me, in many ways, this issue that Judge Chutkan has to address about official versus unofficial really gets at the fundamental tension that the problem was that he was not acting in any way in a presidential way, that he was acting in a personal way. And that the pleading with him to issue a tweet to get the people to stand down was —
Mary McCord: Yeah.
Andrew Weissmann: — to say, “You are –”
Mary McCord: “Be the president.”
Andrew Weissmann: “– president.”
Mary McCord: “Be the president.”
Andrew Weissmann: Exactly. And so, that just sort of came out loud and clear. The other final point, and, you know, this is one where I think we’re going to be agreeing is, there are places where the brief makes clear that Jack Smith is not going to be introducing evidence on something because he thinks it’s official.
And explicitly, in the brief says, “We are not intending to introduce, for instance, the then president’s tweet saying, okay, stand down,” because they agree that that is something he did in his official capacity finally as a president.
And that’s where one of our second question we got was really interesting saying, “Isn’t it possible at a trial that Donald Trump would sort of open the door because he would introduce that?” And the answer to that, I thought, was, yes.
Mary McCord: Yeah.
Andrew Weissmann: Donald Trump will introduce, “Well, look,” he said, “stand down,” and, of course, he can introduce that if he wants to.
Mary McCord: Yes. In other words, there’s no prohibition by the Supreme Court’s opinion that Donald Trump can’t waive immunity and introduce evidence of official acts. So then the question would become, under sort of the rules of evidence and due process in a trial and fairness, when a defendant waves a right that they have, including a constitutional right to enter certain evidence in at trial, the concept there that you use, just for listeners, open the door, that can open the door to the government being able to introduce other evidence in order to put that evidence, the defendant introduced into context so that it wouldn’t be misleading.
And so, that’s what you’re talking about. And, yes, I mean, I think that’s the case because if he waves immunity for any certain thing and tries to take something out of context, the government can come to the judge and say, “Your Honor, you know, in fairness, to paint a big picture, we need to be able to put in X, Y, or Z.”
Andrew Weissmann: Right. And that comes up in our trials that we did all the time —
Mary McCord: Yes, yes.
Andrew Weissmann: — where the defense wants to make an argument, and it’s usually like, “That’s right, but we get to respond.”
Mary McCord: That’s right.
Andrew Weissmann: You don’t have a right to make an argument, but not have the other side respond. That’s true for whether it’s the government or the defense.
Mary McCord: That’s right, yeah, absolutely.
Andrew Weissmann: So, Mary, did you want to talk about a statement that got lots of play on the news because it certainly is evocative of sort of Donald Trump’s mindset with respect to Mike Pence, and that is that on January 6th, and I’m sure as our listeners know, when this is all going on, and the brief says that Donald Trump is watching Fox News, he is tweeting, the point is, there, he’s very aware of what’s going on and all these people are coming in saying, “You have to make it stop, you have to make it stop,” and somebody comes in, according to Jack Smith, and says, “This is what people are saying about Mike Pence and he’s in danger.” And he,” according to the brief responds, quote, “so what”, unquote.
Mary McCord: Yeah. So, this guy is a huge play in the media because it does seem so cavalier. This and a couple of other quotes from the filing where Trump is indicating to family members or others that it really doesn’t matter if there’s real fraud. You know, it’s all about just getting the result that he wants, which is to remain the president. And, you know, I think these are important and go to sort of the corrupt intent of the president. But it is really interesting. To me, those were not the biggest deal things of this 165-page filing, like those were things that the media’s going to jump on because it sounds really awful, and it is awful. And it does certainly show, I think, more of his personal involvement in those statements and things like that as opposed to his official presidential involvement, so I think they’re very relevant.
But I also think these are things where we’ll see what Judge Chutkan says about some of these things, because the Supreme Court did say as part of his ruling that in determining whether something is an official act or not, you can’t inquire into the motive.
And certainly, there’s a lot of things in this motion that show, I guess I’m going to put a different word on it, purpose, right, because the Supreme Court in one breath says, “You can’t look into motive,” but in the next breath said, “It might be different and it might separate official from unofficial to know whether a president was acting as a candidate,” which would be private and unofficial or as president, which would be official and presumptively immune. But as we see in this, sometimes you have to look at the purpose of the statement. One could argue the motive to determine if it’s as a candidate or in his official capacity. I think it shows also one of the problems with the majority’s decision because they’re very clear that the factual development about capacity of those actions, candidate or non-candidate, is important to making the decision.
Yet, when you start to see what do you have to tease out, what do you have to look at to make that determination, certainly, it wouldn’t surprise me if Mister Trump’s team doesn’t come back and says, “This is all the stuff that the Supreme Court says you can’t dig into.” And we will be hearing from Mister Trump in early November, November 7th, I guess, and we can get to where the court gave an extension of time, but not the full extension that was sought by the Trump team.
Andrew Weissmann: So, one of the things that’s interesting is that so-what statement, which, again, I’m not faulting people for latching onto it, because it really does, I think it’s so shocking.
Mary McCord: It is.
Andrew Weissmann: If you just stop for a minute and just think the president of the United States is told that his vice president, who is his selectee, who’s worked with him for four years is in physical danger, and in physical danger that he himself helped exacerbate and is not in any way thinking about his safety, I mean, it beggars the sort of imagination to think, I mean, how could that be, you would have that reaction for anybody at the White House, let alone anybody at all —
Mary McCord: Yes.
Andrew Weissmann: — where you just heard that they were going to be hanged. But somebody who was your close confidant, the second line to the presidency of the United States, the idea that you would just be like, so what.
Mary McCord: Yeah, it’s shocking.
Andrew Weissmann: You know, a lot of people talk about sort of the narcissism of Donald Trump, but the idea that you don’t have not an ounce of empathy, I mean, assuming that this is all proved and accurate is shocking. So, I understand why it is reached. But one of the things that’s really interesting is this statement comes at Page 142 of this very long brief. And that’s because one of the things that Jackson says is these statements that on January 6th that have to do with internal conversations with White House staff, they’re largely not going to offer.
Mary McCord: That’s right.
Andrew Weissmann: And so this is, by way of context, it is not totally clear that this is something absent opening the door that will actually be offered.
Mary McCord: That they would introduce. That’s right.
Andrew Weissmann: Exactly. So, there were places in the brief that, from a legal perspective, are really kind of not yet sort of ripe for Judge Chutkan because the government’s saying, “We’re giving you context here as to what happened, but we’re not actually planning on offering this.” That would be true, for instance, as we just talked about, the tweets where finally, Donald Trump says, “Okay, you should leave.”
Mary McCord: “Go home.”
Andrew Weissmann: Because they hear the government says, “It’s not that those aren’t relevant, it’s that those are clearly official acts.”
Mary McCord: Right.
Andrew Weissmann: So I can’t offer those based on the Supreme Court decision. It gives you a sense of just how odd and truncated the Supreme Court decision is that you can’t tell the full story.
Mary McCord: Right. And, you know, on that context, to the extent people are thinking, “Well, I thought this was all a brief about, you know, what he can be prosecuted for and what he can’t,” the Supreme Court said, “You have to look at context and form and substance to make the determination official or unofficial.” So, I think what Jack Smith is trying to do is, again, say, “You know, with respect to all the things that are charged, here are some of the reasons why you can know that these are done as office seeker and not as office holder.” But again, that brings up this question of motive, purpose, et cetera, which Judge Chutkan will have to deal with. The last thing I wanted to talk about substantively on this is that I thought there was a really powerful legal argument. And remember, this motion not only sets forth in pretty significant detail, but not as much detail as apparently the appendices that we haven’t seen yet, pretty significant detail, sort of the factual development here, but it also has a legal argument. And with respect to the pressure on Mike Pence, this is something that the Supreme Court said, “Because presidents and vice presidents talk all the time, we’re going to call that an official act.” And now, the question is whether, and I think that’s wrong by the way, because as we’ve just been discussing, if they’re talking to each other as running mates, that’s just not an official act. Nevertheless, that’s what the majority said. And so, they said, “That’s at least presumptively immune.” And now as part of the remand, Judge Chutkan left to determine whether prosecution for those official acts would pose any danger of intrusion on the authority of functions of the executive branch. So, Jack Smith addresses that head on in his legal argument.
Andrew Weissmann: Right.
Mary McCord: And he makes the point essentially that because the president has no official power over the counting of the electoral votes, then that, you know, what the president’s doing, it can’t intrude on his authority and functions because he has no official authority and functions over the counting of the ballots. And even the vice president who does have a ministerial role to open the certificates and have them be counted by the Congress on January 6th, he also, as vice president, part of the executive branch, has no official role in making sort of the decision about who wins that count. So, because they have no official roles, it can’t intrude on the authority and functions that the executive branch to prosecute for that. And, in fact, Jack Smith goes a little further and said, “It would disturb the foundational principles of the Constitution to sort of give that role or, you know, provide immunity for that, where the president has no role.” And I just want to read this one paragraph because I think it’s, you know, back to the legal part, very powerful on separation of powers. The defendant’s charge conduct directly contravenes these foundational principles, right, the foundational principles of separation of powers. He sought to encroach on power specifically assigned by the Constitution to other branches to advance his own self-interest and perpetuate himself in power contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the executive branch. Rather, it would advance the Constitution’s structural design to prevent one branch from usurping or impairing the performance of the constitutional responsibilities of another branch.
Andrew Weissmann: So well said. And it’s really clear that Jack Smith is thinking Supreme Court.
Mary McCord: Oh yes.
Andrew Weissmann: That this is definitely going back to the Supreme Court for whatever Judge Chutkan decides one side or the other will be appealing, maybe even both with disagreements as to what she decides. And what you just read is very much sort of thinking about what is going to be argued on this point —
Mary McCord: Yes.
Andrew Weissmann: — to the Supreme Court. Yes, Mary, should we take a quick break and then go to the new renewed Trump motion and some things that Judge Chutkan has done in terms of scheduling and handling that?
Mary McCord: Sounds good.
Andrew Weissmann: So, Mary, some commentators have, or at least one commentator, and certainly, Donald Trump has said that the mere filing of this brief is itself election interference, and that Judge Chutkan and Jack Smith are engaged in election interference by, on her side, permitting the filing, and by Jack Smith, actually filing this. What’s your take on that?
Mary McCord: Yeah. And, you know, I don’t want to give Trump’s claims too much airtime and we’re not going to play them. But, I mean, this is a heavy, heavy theme now of all of his rallies, all of his statements, public statements to media and his social media posts that this is weaponization of the government, which, of course, he’s been saying for a long time, and that this is all election interference. And again, these are the parts of these false narratives that can provide the justification for political violence, and these are things that I find very worrisome. But just to level set on DOJ policy, right? Merrick Garland, earlier this year, put out his guidance to the Department about taking steps close to an election. That guidance actually word-for-word is part of the guidance that is in the Department of Justice manual that applies to all Department of Justice lawyers and prosecutors. And that is that partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors, and these are the keywords, may never select the timing of public statements, attributed or not, investigative steps, criminal charges or any other action in any matter or case for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party, right? So, a lot of people talk about a 60-day rule, you can’t do anything within 60 days of election. That’s not an official rule. What I read to you is the official rule. Sometimes a rule of thumb that prosecutors will use is, we’re not going to bring criminal charges against somebody who’s running for election within 60 days or we’re not going to do a search warrant within 60 days of an election. They use it as a rule of thumb, 60 days, some will think 90 days. But the rule is, you can’t do something for the purpose of affecting election. What happened here with this filing is Judge Chutkan and the special counsel were doing exactly what the Supreme Court told them to do. The Supreme Court said, this case is being remanded for the district court to determine in the first instance after legal briefing and factual development, whether there’s anything in this indictment that can be prosecuted that is not immune. And they said, “This must be done at the outset.” They did not say, “And whatever you do, don’t have any of this legal briefing until after the 2024 election.” They said, “This is what you are to do.” And I don’t know about you, but I’ve been involved in plenty of cases that came back to the lower courts after remand, and you do what the higher court told you to do, and you do it.
You know, normally, the first thing that happens after remand is you go in front of the court, you get a scheduling order for briefing. That’s exactly what happened here. And then you do that briefing. It would be actually much more unusual if Judge Chutkan had said, “We’re going to hold on any briefing for five months after the Supreme Court’s ruling before we started it. I mean, that would be highly unusual.
Andrew Weissmann: That would be taking the —
Mary McCord: That would be —
Andrew Weissmann: — political scene —
Mary McCord: Yes.
Andrew Weissmann: — into account.
Mary McCord: You’re absolutely right. And so, just as a matter of what they’re doing, they’re responding to the Supreme Court. And then with respect to, you know, is this something that would violate the rule, again, this is not the Department of Justice taking a step for the purpose of affecting an election or giving an advantage or disadvantage any candidate or party.
They’re following a judicial ruling. They’re following a scheduling order. They’re not doing something on their own to get out there. Jack Smith, didn’t say, “I’m going to give a big speech about Donald Trump,” and nor are they doing something like a new search warrant or new charges. So, as DOJ has said before, you know, that rule applies when you’re talking about DOJ taking some action that they could wait to take. Here, we’re talking about an ongoing case that we are put in this position of timing by virtue of the timing of the appeal to the Supreme Court and the Supreme Court’s decision. So, I understand how people say, “Wow, this is really powerful stuff coming out,” just whatever, “30 or 35 days at the point when it was filed before the election,” but this is what the Supreme Court said to do and they’re doing it. So, that’s my response.
Andrew Weissmann: Totally agree with everything you said. And two quick thoughts. One is, this continues Donald Trump’s penchant for attaching adjectives and adverbs, labels.
Mary McCord: Yes.
Andrew Weissmann: But not addressing substance. And I have to fault the media for covering the label as opposed to the substance. There is a question, is it election interference or not, I’ll turn to that in a second. I totally don’t think it is. But it does not address in any way, shape or form the substance of the filing.
Mary McCord: Right.
Andrew Weissmann: This is going to get to the issue that Donald Trump has every right and could avail himself of filing a response to this. It’s not like it’s taking him by surprise. He’s had the discovery. Now, he has the brief. He could file something, and he could file something before the election.
Mary McCord: In fact, the original scheduling order —
Andrew Weissmann: Right.
Mary McCord: — was having him file before the election. Yeah.
Andrew Weissmann: And he asked to put it off, and Judge Chutkan agreed that his filing doesn’t have to be made, it turns out until after the election. But he has every right to have responded substantively, but he’s not because it’s easier to just address adjectives and adverbs, not the substance of what is being alleged. In other words, did he not say this to Mike Pence? Did he not do these actions? If he’s free to undermine this/ There are questions of credibility. Whatever it is that he wants to say, he’s free to do. And so, his response is just, it’s apples and oranges, it doesn’t get to the substance of it. And then big picture, as I think when we were on air over the weekend, as I like to say here in New York, this is unbelievable hutzpah. The whole goal of Donald Trump and his team, and I am not faulting his legal team, I’ve been a defense lawyer, was to delay this forever and to have this case put on hold past the election and to have no filings whatsoever. And so, what’s really going on is it’s unfair that we haven’t been able to succeed completely. We’ve put off the trial, so the trial will never see the light of day, but we should just make sure the public never gets facts about this case until after the election. And the Supreme Court played along really, really well and delayed this for eight months. But could you just play along a little bit further because it’s just so unfair that the public should actually have to hear anything. So, the idea that this case by all rights, was supposed to happen in March, March 4th was the initial trial date. There would’ve been a trial. Donald Trump could have been acquitted. We don’t know what would’ve happened, but there would’ve been a public accounting. We would’ve joined the rest of sort of so-called Western democracies that have figured out how to hold political leaders to account, instead of being, I think sort of showing that our judicial system is not up to the task. And this idea that this is election interference, because you’re actually getting some facts out, is really, to be blunt, sort of ass backwards in terms of what it means in terms of, so, I’m sorry, I’m not going to trigger a soapbox.
Mary McCord: Are you triggered? I feel like we’re on Trigger Avenue.
Andrew Weissmann: It’s just so antithetical to what our justice system’s supposed to be. And again, I just want to make sure people understand. I’m not saying, whatever the verdict is, the verdict is.
Mary McCord: Right.
Andrew Weissmann: I mean, it’s a very high standard. Maybe the government can prove it, maybe they can’t. But the public has a right to a speedy trial that has been denied here. And the idea of, like, just having some adjective and say, “This is election interference,” is so detrimental to the fundamental principles of what I think this country is about. So, anyway, that’s my morning tirade.
Mary McCord: Yeah. Well, I mean, when you look back to a year ago or more than a year ago, you know, before things went up to the Supreme Court before those delays, I think, you know, based on the schedule Judge Chutkan had set and even when certain issues went to the D.C. Circuit, like having to do with the gag order, remember them saying, “This case will long be over before we get close to the election, and we are so far from that.”
Andrew Weissmann: So, Mary, do you want to take us through Donald Trump has done, as you noted, this new Fischer motion? We wouldn’t get into all the details because it’s not fully briefed, but what’s his contention here? How does the new Fischer decision affect what he’s saying should happen here?
Mary McCord: Sure. So, folks will remember Fischer is a case where one of the January 6th rioters challenged his charges of obstruction of official proceedings saying that the provision of law relied upon really only applies to sort of obstruction of a record or a document or a tangible object. And that those who violently attacked the capital, you know, weren’t altering a document or hiding a document or something like that. So, the Supreme Court’s ruling was that the part of the statute being relied upon there that uses the otherwise clause, right, otherwise obstructs official proceeding, is not just any other means. It’s at least somewhat constrained by the language of the first part of statute. But importantly, it didn’t say what Donald Trump is saying that it now says. He seems to be going back to, it has to do with actually obstructing, impairing the availability of a record or document or object. What the Supreme Court actually said is, “It is also possible to violate the provision of the statute that is charged here by creating false evidence rather than altering evidence. It also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond records, documents, or other objects enumerated in the first part of the statute, such as witness testimony or intangible information.” So what Donald Trump is doing is coming in now. He’s still hanging pretty heavily on, “It’s got to involve a document record or object.” He sort of ignores the Supreme Court’s ruling that it can apply to other things like creating false evidence. And why am I talking about creating false evidence? Because of the —
Andrew Weissmann: Yeah.
Mary McCord: — fraudulent elector ballots that were sent up to the Capitol. And he says a few things. He says, first of all, once you take out all of the immune official acts that Jack Smith wants to rely on, there’s not going to be anything left in support of these charges, right? So, essentially, it feels like this motion is not filed at the right time even though this is a time that was scheduled based on his request to Judge Chutkan, because it feels to me like he kind of needs to wait until after the decision about official acts. But he’s saying, once —
Andrew Weissmann: Yeah.
Mary McCord: — you make that decision, there’s not going to be anything left here to prove this up. He also says, there was no actual evidence impairment, and this is the point I was just making, and physical movement of the electoral college certificates doesn’t support these charges. Remember the superseding indictment talks about how the legitimate certificates were having to be rushed out of the joint session of Congress when the violent attack was going on, and that those types of things are not things that can support this offense. And at the bottom, he’s saying, I’m not responsible for that. He actually has to use your term hutzpah to start off his motion by saying, “Nancy Pelosi accepted responsibility –”
Andrew Weissmann: Yes.
Mary McCord: “– for the attack on the Capitol. I’m not responsible.”
Andrew Weissmann: So that maybe is the final thing to talk about, which is, Judge Chutkan in rejecting Donald Trump’s last-ditch effort to not have the immunity brief filed by Jack Smith issued a written decision denying that. And it’s wonderfully written, that’s very clear, goes through all of his arguments and rejects them as to why the brief should be filed about why only certain redactions should be made and not other redactions, because Donald Trump’s just sort of saying essentially, “Don’t file it or redact much more,” and the judge rejects that. But at the end of her decision, she basically says, “This is going to be me,” and not sounding like Judge Chutkan, says, “Cut it out.”
Mary McCord: Yeah.
Andrew Weissmann: Meaning, “I don’t want this rhetoric. You’re officers of the court and, you know, behave yourselves.” And, you know, that’s in high profile cases, political cases. There’s just enormous pressures. And again, I’m not going to single out one side or the other on this. It is very useful for the judiciary to be holding everyone to a high standard in terms of how they comport themselves because, as we have said it repeatedly, you are an officer of the court is a profession, you are not a hired gun for your client, and what you file is not a political piece of paper, it is a legal brief, and that is your responsibility as a lawyer and your obligation to the court. So, she is reminding everyone of that at the end of her filing. I can’t say that the motion that you just talked about, Mary, about Fischer completely comports with her admonition —
Mary McCord: Yeah.
Andrew Weissmann: — about that.
Mary McCord: Yes. She’s saying, future filing should be directed to the issues before the court, right, that when there are unsupported accusations of government, bad faith, and partisan bias, not only is that focus on responsive and unhelpful to the court but is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in the case. The defendant has had an opportunity to make his case that his prosecution is improperly motivated. Because remember, he did move to dismiss the indictment on grounds of selective and vindictive prosecution. You know, this is consistent with things she has been saying all along. You may recall, even, you know, a year ago before the case even went to the Supreme Court at one of the hearings, she essentially asked Mister Trump’s lawyer like, “Look, who are you making your arguments to, because it doesn’t sound like you’re making arguments to me? It sounds like you’re speaking to a different audience here.” And that’s what I think we continue to see in Mister Trump’s filings. And when he actually writes his attorneys in a filing, in the first page of a motion, that Nancy Pelosi has taken responsibility and his responsibility for January 6th, that’s not serious legal argument.
Andrew Weissmann: Mary, it is so nice to talk to you about this after being on air and doing all sorts of bits and pieces on this and to have a sustained conversation about the filing.
Mary McCord: Yeah.
Andrew Weissmann: I really appreciate it.
Mary McCord: Yes, me too. And, you know, I’ve been sort of looking forward to this. And then when you get to the time —
Andrew Weissmann: Met too.
Mary McCord: — you have so much to say, like, we could go on a few more hours if our producers would let us and the listeners would listen, but we wouldn’t.
Andrew Weissmann: Right.
Mary McCord: I would also say to listeners, I don’t know about you, Andrew, but, you know, yes, 165 pages may seem daunting, but, of course, you know, it’s double-spaced and there are inch margins, like you can read it in a few hours and it’s worth reading.
Andrew Weissmann: Exactly. You can really see this online and read it for yourselves. It is really readable in terms of what happened, and it’s educational in terms of, you know, if you’re wanting to know what exactly Jack Smith is alleging happened here, and you have a sense of the source of the material, although, as you said, the appendices —
Mary McCord: Parts are redacted.
Andrew Weissmann: — are not out yet. But in any event, in case you haven’t had enough listened to Mary and me, you can actually go to the —
Mary McCord: That’s right.
Andrew Weissmann: — primary source and not the secondary source, which is us. Thank you, all, for listening. Remember, you can subscribe to MSNBC Premium on Apple podcasts, and you can get this show and other MSNBC originals ad-free.
Mary McCord: And to send us a question, you can leave us a voicemail at 917-342-2934 or you can email us at prosecutingtrumpquestions@nbcuni.com.
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