There’s been significant action in New York as Judge Juan Merchan denied one of Donald Trump’s motions to dismiss his 34-count verdict- this one based on the Supreme Court’s presidential immunity decision. After a noteworthy amount of speed reading several filings, MSNBC legal analysts Andrew Weissmann and Mary McCord break down Merchan’s rationale, highlighting the specifics of his multi-layered legal reasoning. Then, they turn to another fully briefed pending dismissal motion, this one based on the temporary immunity a sitting president is granted while serving.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, welcome back to Prosecuting Donald Trump. It is Tuesday morning, December 17th. I am Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So, you and I have been reading a lot.
Mary McCord: Yes. Stop already.
Andrew Weissmann: So, all of you do not have to read, but basically there was a lot of reading yesterday, and we’re going to cover that. And then after we did even more reading, there was a decision by Judge Merchan.
Mary McCord: And that’s where we’ll start, yes.
Andrew Weissmann: Exactly. And that has thrown a bit of a wrench into what we had planned. So, for listeners who are sitting there going, “Wait a second, aren’t you going to have your special guest to talk about pardons?” We’re going to do that, but not in this episode because of the new Judge Merchan decision that we want to really talk about and get into the weeds.
So, let’s get right to it. Mary, what’s on our agenda today?
Mary McCord: Yes, we will start with last night’s breaking news that Judge Merchan ruled on the pending motion to vacate the jury’s verdict on the grounds of presidential immunity. And by this presidential immunity, I mean the presidential immunity based on the Supreme Court’s July 1st decision about what types of acts a president can be prosecuted for and what types of acts he cannot. That is different. A separate motion from the still pending motion to completely dismiss the case on the grounds that because Donald Trump has won the presidency and a sitting president cannot be prosecuted, he argues, for official or unofficial acts, that motion is to dismiss entirely the case.
That motion is still pending. It has been fully briefed. It has not yet been ruled on. So, we will kind of pull these apart, but we will start with Judge Merchan’s ruling on the motions that had been briefed for some time that involve essentially whether official acts evidence had been wrongfully admitted in evidence at Donald Trump’s trial and therefore that verdict should be vacated because the Supreme Court, of course, ruled on July 1st that even when someone’s being prosecuted, not someone, even when a former president is being prosecuted for purely unofficial personal acts as in the Alvin Bragg Manhattan case, evidence of official acts may not be admitted into evidence.
So, that’s what that one was about.
Andrew Weissmann: And then we’ll do a little bit more on the pending motion, which is now fully briefed. That was one that we started to talk about last week. And we were waiting for Alvin Bragg’s opposition, which is now in. And we also got a reply brief yesterday, which we read. And you and I have been talking about the fact that we’re not even sure that he was allowed to submit a reply, but he did. So, we’re going to talk about that as well. And we’ll make sure people understand that, again, the difference, because it’s confusing. These are both immunity motions, but they’re really different.
So, the one that Judge Merchan issued, just to do a little bit more of a recap, Mary, on sort of why this is coming up, because I think so many people are going, “I don’t understand. How can presidential immunity even come up?” Because the case here is not about what he did as president. It’s about stuff that happened during the campaign for the presidency in 2016. And that’s because, as you said, Mary, the Supreme Court said, not only are we granting immunity with respect to the acts of the president that are official, they also said, and I think of this as like a bowling ball trying to hit all the pins, they also said, even in a prosecution for unofficial acts, you may not be able to use official act evidence.
Now, just as an evidentiary matter, they don’t want official act evidence coming into the trial.
Mary McCord: And let’s remind people as well, this is the particular part of the decision. You were going to get there. Okay.
Andrew Weissmann: This is, in some ways, the weakest part of the decision, I think, both in terms of reasoning, but they lost one of the justices. That was, I think, the huge —
Mary McCord: It’s exactly where I was going.
Andrew Weissmann: Which is Amy Coney Barrett, in her separate concurrence, says she disagrees that this should be the law. So remember, for this part of the decision, there still isn’t a majority here, but it’s five to four.
Mary McCord: She’s explicitly joined the dissenters on this. She said, “I join with the dissenters that official acts evidence ought to be admissible to prove criminal liability for unofficial conduct.”
Andrew Weissmann: Diehard listeners will recall that this is the issue that Chief Justice Roberts, at the oral argument, sort of denigrated the argument that was being made by Justice Alito, but then in the written decision flips around and says he now agrees with it. So this is sort of, in some ways, the most tenuous part of the decision. It’s basically just a couple paragraphs on this. It’s not terribly well reasoned.
And so Judge Merchan had to deal with whether there were types of evidence that were admitted in the New York criminal case that could be deemed official act evidence that should not have been admitted, and whether it was something that was unrebutted, even if you described it as official act evidence, is it something that would meet the state’s ability to rebut it?
And he also had to deal with this issue about whether it was harmless error, meaning that even if there was a mistake, that there was enough proof that he could be confident in the outcome of the trial. That comes up a lot in criminal cases, and we’ll talk more about his analysis. He finds a lot of alternative findings, but he says this is harmless error, and that’s because a defendant is entitled to a fair trial, not a perfect one. That’s sort of what the Supreme Court has said, because rarely are there not some sort of mistakes, but the question for the court is, are they fundamental?
Mary McCord: Would they have changed the outcome? And so oftentimes where the evidence is overwhelming, like Judge Merchan found here, they’ll say, “Even if there were errors,” and again, we’re kind of jumping ahead. Yes, even if there were errors and he concludes there were not, they were harmless.
So before we jump into sort of his multilayered analysis, because like you said, he makes alternate holdings, I do want to make a framing point, because Judge Merchan did. He went through his reading of the Supreme Court’s decision in Trump v. United States and what he takes from that decision about presidential immunity.
And remember, this is the type of immunity that’s not the temporary immunity while a person is a sitting president. This is the type of immunity that it’s a permanent immunity saying for anything a president did that was his official acts, if they were core executive functions, it’s absolute immunity. If they were within the outer perimeter of official acts, it is presumptive immunity, which can be rebutted by a showing that prosecution for those outer perimeter official acts would cause no damage to the authority of the executive, essentially, the authority and functioning of the executive.
So what Judge Merchan does, and he says this, that this is how he’s going to look at this and analyze the allegations here of official acts evidence coming in. He says, “The president of the United States has a duty to the citizenry that is paramount to each and every decision they make. There accordingly exists the greatest public interest in providing the president with the maximum ability to deal fearlessly and impartially with the duties of his office.” And that sentence there was a quote from the Supreme Court’s decision.
He then goes on to say, “This is to ensure that the president can take bold and unhesitating action free from fear of unwarranted reprisal.” Again, a quote from the Supreme Court. But then his final sentence, “But a president is not above the law.” Again, a quote from the Supreme Court’s opinion. And he says, “It is through this lens and pursuant to the guidance provided by the Supreme Court that this court considers the defendant’s motion.”
So he’s saying, “I understand the Supreme Court has said that a president has to be able to have the ability to act without fear that he’s going to be prosecuted later when he is actually engaging in official functions, but he’s not above the law.”
Andrew Weissmann: Yes, and this is where the Supreme Court’s decision on why you shouldn’t be able to use official act evidence, even in an unofficial act case, is so weak because they only give two rationales. And one is if you put in official act evidence, even in an unofficial act case, that the jury somehow won’t be able to hear it without them inflaming their passions and making a verdict based on his role as president. There’s no site for that. It’s just made up. And this is a perfect case for why that makes no sense whatsoever. The whole idea of this is everyone knows this is Donald Trump. He was running for office and he won. So the idea that it’s, oh, it’s going to be the Hobeck’s testimony or a document that’s going to suddenly have changed it. It’s not like they put in evidence that was some policy position that he was taking while president.
So that was sort of ground one. And the other was that if you introduce this evidence, it will somehow influence a president’s decision making because he might be thinking later on, something I do could be evidentiary at a criminal case, which again.
Mary McCord: Against me for a personal conduct. I mean, if any president is thinking that, they need to get busy doing the job that’s in front of them.
Andrew Weissmann: Exactly. It’s so fanciful.
Mary McCord: It is.
Andrew Weissmann: It’s such a weak analysis in the Supreme Court. But Judge Merchan takes this as binding.
Mary McCord: It’s the Supreme Court. Yes.
Andrew Weissmann: One other framing thing that I thought was interesting is this is like super in the weeds, but that’s what we do. He has a footnote saying that although the Supreme Court in the posture of the Trump January 6 federal case sent it back to the trial court for fact finding. And Judge Merchan puts a lot of weight on that sort of like how much this is a factual call and that this isn’t something that the court could unilaterally rule is absolutely immune because there’s sort of a lot of factual context needed.
He says in a footnote, it is not necessary, though, and the court didn’t say you have to have a hearing in all circumstances, because in this situation, Judge Merchan elected not to have a hearing. In other words, he could have opened this up and had both sides put on witnesses to help explain the context of certain things. But obviously here, Judge Merchan thought he had enough in the trial record to make those decisions.
Mary McCord: Right. Because the case that was in the Supreme Court was in the pretrial position.
Andrew Weissmann: Exactly.
Mary McCord: Right. So it’s about the parties get to argue about what evidence should be able to come in and what shouldn’t. And here it’s like it’s already done. I can look at the record. I don’t need a hearing. So I want to get into now the details. But it does also occur to me. People should realize Donald Trump very much did not want Judge Merchan to decide this motion. Now, in fact, in the briefing on the other motion to dismiss the one we’re going to talk about later, he made clear. Don’t decide this because we have a pending appeal to the Second Circuit based on our efforts to remove this case from state court to federal court so that a federal court could rule on these immunity issues and whether any official acts evidence came into the trial wrongfully.
And so obviously, Judge Merchan had this briefing from Donald Trump and he went forward. He rejected that. He said, I am ruling on this. And he does talk a bit about the fact that there were procedural and technical issues with preserving the Second Circuit appeal. And it does not mean the Second Circuit can’t still entertain that appeal and decide whether the case removal to federal court was wrongly denied. Because what had happened is when they removed it to the federal judge, the federal judge, Judge Hellerstein, said, nope, I don’t see any official acts evidence here.
And also, well, that was on his first removal. Actually, there’s been two efforts to remove and yes, all denied. And that’s what’s up on appeal. So just as another point, this is one that Donald Trump did not want Judge Merchan to be deciding at all.
Andrew Weissmann: So one of the first things that Judge Merchan does is he decides what are the actual issues that are preserved. That is a technical term, which is that if you want to complain about something afterwards, absent some category of sort of fundamental error, absent something like that, you have to preserve the claim. Meaning you can’t just let the trial go on. Don’t object to things. It comes in and then later you say, oh, gotcha. I didn’t object to that. I didn’t put you on notice that I had a problem with this coming in.
But now that the trial’s over, you know what? You should have divined what was in my head. And so that is why the courts say you have to preserve your objections. You can’t be a gotcha. There needs to be an opportunity for the court and the other side to be heard at the time. So the question is, which of these things were preserved? And the judge makes a decision that certain things were preserved, meaning that the counsel made an adequate claim that they shouldn’t come in, and many things were not preserved.
The second procedural thing that he did that I thought didn’t come up in this procedural posture, but I thought was particularly smart and also the kind of thing you would expect from the trial judge who sat through the trial, is he points out that many of the things that Donald Trump complains about were offered by him.
Mary McCord: By him.
Andrew Weissmann: Yes.
Mary McCord: Meaning he elicited it during the examination or cross-examination of the witnesses, yes, because he thought it would help him.
Andrew Weissmann: Right. So a good example of that was the testimony of Ms. Westerhout, who worked next to the president and testified about President Trump’s practices. And the reason that the defense rightly tried to elicit, actually didn’t try to, did elicit evidence was that the defense wanted to show that he was busy, that he was multitasking, that he would not have had the time and attention while running the United States of America to be focused on the —
Mary McCord: Writing these checks.
Andrew Weissmann: — de minimis, sort of, exactly, and sort of what’s going on in his business. And the minutia would not be the kind of thing that he would focus on. And so the defense brings out a lot of things that have to do with presidential actions, right? Official actions that the president was taking in the White House. But as Judge Merchan says, you can’t bring that out and then say it was error to allow me to bring out evidence that was going to be helpful, and he argued, exculpatory.
And by the way, he was right to bring that out. That was a good strategy. Those were good arguments to make.
Mary McCord: I think so, too.
Andrew Weissmann: And the jury had to assess it. But I just thought that was, he did that sort of consistently to talk about sort of when Donald Trump himself was bringing out evidence and to sort of discount the issue of, again, you can’t not object or you can’t elicit and then say these are all mistakes.
Mary McCord: Absolutely. I think it would probably be helpful to listeners, and then maybe we take a break and come back and dive into these to remind them of what the things are that Donald Trump is complaining should not have come into evidence.
One of them you already said are the observations of Madeleine Westerhout, who was the director of Oval Office Operations. Say that three times.
That’s hard, Regarding Donald Trump’s preferences and practices in the Oval Office. Others were private communications with Hope Hicks, right, who was the White House communications director. Also, the admission of the Office of Government Ethics Form 278E, which was about reporting on campaign finance issues. Another was the testimony of Michael Cohen regarding his communications with Donald Trump and others about the presidential pardon power. Also about a pressure campaign on him, him being Michael Cohen, you know, not to reveal that anything about Stormy Daniels and these payments of hush money to Stormy Daniels. And also his testimony, Michael Cohen’s, about conversations with David Pecker about a related federal election commission inquiry about, again, recall that in some cases David Pecker was involved in the scheme of covering up compensation, not to Stormy Daniels, but to Karen McDougal, another person who had alleged a sexual encounter with Donald Trump.
And then finally, the last thing complained about were five sets of social media posts. I think they were maybe all Twitter posts.
Andrew Weissmann: Yes, tweets. They were all tweets.
Mary McCord: From 2018 on Donald Trump’s official White House Twitter account. But they were things like attacking Stormy Daniels, attacking Michael Cohen. They weren’t really related to presidential functions.
Anyway, so those are the categories of things that Judge Merchan then had to go through and say, to your point, which of these were preserved, which had been objected to either before trial or during trial. And for most of them, he says, you didn’t preserve this.
Ordinarily, that would be enough to say, I’m not going to even entertain your argument that that was air. But because he wanted to belt and suspenders his ruling, he said, even for the unpreserved objections that he’s making now, I am going to go ahead and analyze them all on the merits. And that we can talk about when we come back after the break.
Andrew Weissmann: That sounds good.
(BREAK)
Mary McCord: Welcome back. Well, as promised, now we want to talk a little bit about the merits, Judge Merchan’s decisions on the merits. And I think listeners may recall during the trial, our coverage of the trial and after the Supreme Court’s immunity decision, as we speculated about what Donald Trump might argue was official acts evidence that shouldn’t come in.
The thing that I think we honed in on as maybe being the evidence that was most important to the trial of those things I just mentioned before the break was testimony from Hope Hicks, frankly, about in her role as communications director, how to sort of respond as this information about Stormy Daniels was breaking in the news.
And so, Andrew, what did Judge Merchan have to say about that?
Andrew Weissmann: So we actually a while ago talked about this and previewed that the Hope Hicks piece was, I think, at least in my mind, was sort of the most problematic in terms of Donald Trump’s claims and what the state was going to argue about this. So people will recall that Hope Hicks, while she testified about things that were happening during the campaign, did have testimony about the conversation with Donald Trump while he was president when the Stormy Daniels information suddenly came to light. And so she was communications director and the president was able to talk to her about essentially the argument is her job of how to deal with this in terms of communications.
Having said that, what some of the testimony is about is sort of reminiscing backwards to a time when he was candidate. And one of the most damaging things was Hope Hicks testimony saying that Donald Trump said to her, you know, it’s great that this came out now and not before the election.
Well, that’s not something that is helping her do her job. That’s just reminiscing about going backwards and his own opinion about whether it was good or bad that as to when it came out. And obviously, from the state’s point of view, it was a good statement because it showed his sort of motive.
The other was she testified about a claim that Donald Trump said to her that Michael Cohen had said to the president, I’m doing this all on my own. And her view was essentially that does not sound like Michael Cohen.
Mary McCord: That’s right.
Andrew Weissmann: Her view of her opinion of Michael Cohen, that’s not coming from the president. That’s just her view. That’s not an issue. But the issue of her statement that the president said Michael Cohen did this on his own was one of the things that Donald Trump in this motion claimed shouldn’t have come into evidence because it’s official act evidence.
And here on pages 19, 20, and 21 of the opinion, the one that we were speed reading last night, he found that this was, and again, to your belt and suspenders point, he found that this was not official act evidence that it was. Here’s the quote on page 21. The defendant’s argument that these communications fall at least within the outer perimeter of his authority also fails.
The testimony was most certainly palpably beyond any actual authority the defendant possessed in his capacity as president. That’s his holding. But then he says even, this is like an alternative holding which is that even if this court were to fund that communications do fall within the outer perimeter of his presidential authority, it would also find that other non-privileged trial testimony provided ample non-motive related context and support to rebut a presumption of privilege and that defendant was acting in his personal capacity and not pursuant to his authority as president.
And then he makes the finding that’s required by the Supreme Court’s decision that the introduction of this evidence poses no danger to the intrusion on the authority and function of the executive branch.
Now, I do think that that statement, which is on pages 21 to 22, it doesn’t expand on that. It’s just a pronouncement. It’s his finding on it. Personally, I would have preferred to see a little bit more on that. But he’s the court, so he can just say this is my finding. And he obviously gives lots of context before that.
Mary McCord: Well, yes, I was just going to say, if you go to the paragraph before the one you read, even though he doesn’t say this is part of my finding that the presumption is rebutted, that there was no danger of intruding on the functions of the president. He sort of explains in a previous paragraph, right, he says, “Conversations and meetings with the White House communications director about personal matters involving an alleged affair and a sexual encounter that occurred prior to taking the office of the president of the United States are undoubtedly not the greatest public interest the Supreme Court contemplated when it wrestled with protecting a president’s ability to deal fearlessly and impartially with the duties of the office.”
Andrew Weissmann: Which, by the way, is hysterical.
Mary McCord: It is.
Andrew Weissmann: That is about as snarky as you can — I mean, it’s not snarky, but it’s like —
Mary McCord: It’s factual.
Andrew Weissmann: Yes, it’s factual, but it’s also like, that is sort of judicial words for, “You’ve got to be kidding me.”
Mary McCord: That’s right. How could that possibly be official, right? And, you know, he previews before he even starts to break down Hope Hicks’ testimony, Madeleine Westerhout’s, and the other things, he sort of previews that’s the way he’s thinking when he says, “Given what this case was about, which was personal conduct,” right, the falsifying of business records to hide reimbursement to a porn star that was paid to her to keep her shut up — that’s why we call it hush money, he says, right before he then breaks down all of the different categories of challenged evidence, he says, “It is therefore logical and reasonable to conclude that if the act of falsifying records to cover up the payments so that the public would not be made aware is decidedly an unofficial act, so too should the communication to further that same cover-up be unofficial.”
So he’s basically saying, “Nobody’s even arguing that what he’s charged with here is official, so communications about that thing he’s charged with, falsifying business records to cover up these payments, how could that be official? That’s unofficial too.” And I think that carries through most of his analysis.
Andrew Weissmann: Absolutely. One of the other things he said is, “All four instances of Hope Hicks testimony that are complained about, all four instances relate to pre-inauguration intimate interactions between defendant Donald Trump and two different women and the ongoing effort to conceal those interactions post-inauguration.
Defendant’s attempts to sweep these communications under the protections afforded by the ‘take care’ and ‘vesting’ clauses” — those are the clauses that say that the president should take care to make sure that the Constitution and the laws are upheld.
He says, “those protections afforded by the ‘take care’ and ‘vesting’ clauses is unpersuasive, and defendant has not referenced any constitutional authority upon which he was acting for any of the four communications with Ms. Hicks.”
This in some ways, Mary, it’s like, you know, we’re doing sort of this biblical exegesis that’s required by the Supreme Court decision, and we’re going through how Judge Merchan does it, but this is one where, you know, my Brooklyn is coming out.
Mary McCord: Yes.
Andrew Weissmann: It’s sort of like, come on.
Mary McCord: It is very come on. Yes, it is very come on. Without going, I think it would actually bore listeners to go through every category here, honestly.
Andrew Weissmann: Or bore more.
Mary McCord: Yes, hopefully we haven’t bored them too much, because it is very in the weeds. But essentially, he goes through then Westerhout’s testimony, Cohen’s testimony, the tweets, and he’s like, “all of these, unofficial, unofficial, unofficial, and even if they were within the outer perimeter of official, introduction of that evidence poses no danger of intrusion on the authority or functions of the executive.”
Okay, so you lose on the merits, but that’s not all. Then he does another alternate holding, which of course you previewed, Andrew, which is that even if I’m wrong about any of these categories of evidence, and even if, you know, some of this disputed evidence was evidence of official acts under the auspices of the Trump decision, the errors were harmless. And he goes through harm beyond a reasonable doubt, which is the most stringent type of review when it’s a constitutional violation.
He goes, and even though there are lesser forms of harmlessness for non-constitutional errors, he applies the most stringent form of harmlessness, which is harmless beyond a reasonable doubt, and says essentially, and goes through the evidence, that the evidence was overwhelming about the actual 34 charged crimes. And he goes through that evidence and says, because that evidence is so overwhelming, these, you know, individual bits of evidence that came in over the course of this multi-week trial, none of those was so material to the jury’s verdict or material to any of the elements of any of the offenses charged that there’s a reason to believe that it actually would have affected the verdict.
So the error, any error, was harmless beyond a reasonable doubt.
Andrew Weissmann: So this was a resounding, resounding win for the prosecution. But Mary, as you said, we’re about to now turn to the pending motion, which very confusingly is also about presidential immunity. But that is about this temporary presidential immunity that has been recognized by the Federal Department of Justice that a sitting president cannot be charged while he is president. I say he because obvious reasons.
And so there’s this temporary immunity. Donald Trump, as our listeners know, has made the motion that because he is now during this transition period and he’s soon to be the president, that the case should be dismissed, not put on hold for four years, but should be actually dismissed in the same way he says that Judge Chutkan, with the approval of the Department of Justice, has dismissed the federal action. Of course, that was dismissed without prejudice. And I don’t think that is mentioned at all in Donald Trump’s brief.
But why don’t we turn to that after a break? Because, well, we’re not going to go back over the Trump motion because we did that, but we’re going to talk about what Alvin Bragg said and then briefly discuss Trump’s rebuttal to that. And that motion is still pending. And so it’s really important for people to know that because there’s been some misreporting on that. It’s really important for people to know that there’s still this other thing out there.
And conceivably, that could lead to if Judge Merchan were to agree with Donald Trump to this case being dismissed with or without prejudice or just the sentencing being put off and the case sort of being on hold.
Mary McCord: Well, that leads us to the options that were posed. So let’s not spoil it for people.
Andrew Weissmann: Yes. Okay. But anyway, so this is that issue of like what are the various options and what could happen is all things that that we don’t know the answer to now. But presumably we’re going to get a new decision from Judge Merchan on this pending motion that, as I said, was completed in the sense of all the filings have been made as of yesterday because that’s when Donald Trump put in his reply brief.
So we’ll get a decision on that. But when we come back, we’ll start breaking that apart to get to what the DA has said and how Donald Trump responded.
Mary McCord: Sounds good.
(BREAK)
Andrew Weissmann: Okay, now we’re going to turn to the pending motion, and I’m not going to spoil any more. So what does Alvin Bragg say?
We talked about Donald Trump’s argument, give a quick overview of it. What is the DA’s argument? What is it that he says legally? And then what are the various options that he proposes as acceptable from the DA’s perspective that he thinks Judge Merchan should consider?
Mary McCord: Right. So first off, he comes in with, look, Donald Trump wants this case dismissed immediately, as in right now. And he’s not yet the sitting president. And Donald Trump argued it should be now because he’s the president elect and under the Presidential Transition Act, which is a statute. There’s all kinds of transition-y things happening right now so that he can be ready to take office.
And Alvin Bragg says, fact is, the only thing that’s been said about this, which is said by the Office of Legal Counsel, is that you cannot indict or prosecute a sitting president. It didn’t say anything about someone who is not yet the sitting president, and that should just be rejected. And, you know, he kind of goes through why it doesn’t make sense at this point and why the rationale even of the Office of Legal Counsel, that goes by OLC, which is based on other Supreme Court decisions, Supreme Court decisions about things like immunity from civil liability. We’ve talked about those decisions, Supreme Court’s decisions about not being immune from having to produce evidence, even if you’re the president.
That amalgamation of case law out there, in Alvin Bragg’s view, does not support dismissal before somebody is a sitting president. He then also says there are also important differences, even while a president is a sitting president, from the situation that was encountered, for example, by Judge Chutkan in the January 6th-related federal prosecution or Judge Cannon in the Mar-a-Lago federal prosecution, because both of those cases were pre-trial.
And here he’s pointing out the obvious, that this case is now post-trial. There’s already been a guilty verdict. The reasons and rationale for that OLC opinion, which is binding on Jack Smith because he was a federal prosecutor, a special counsel appointed by the federal government, that those reasons are very different when we’re talking about an already completed trial that is a state court prosecution.
In fact, I mean, this is how he describes it in the introduction. Even after the inauguration, defendants’ temporary immunity as the sitting president will still not justify the extreme remedy of discarding the jury’s unanimous guilty verdict and wiping out the already completed phases of this criminal prosecution.
And he goes through things like having the opprobrium of an outstanding indictment hanging over the head of a sitting president for four years or even eight if it was not a second term. That really, any opprobrium, like that already happened. We already had this trial. He was already found guilty. It’s not really going to be worse if there’s something like a sentencing still pending or the verdict having been found while Donald Trump is president now.
Andrew Weissmann: It sort of doesn’t make any sense to me logically, because if you even analogize, as we talked about, to the federal case, the January 6th case, that was dismissed without prejudice.
Mary McCord: That’s right. It’s still hanging over his head that it could be re-brought, right?
Andrew Weissmann: Exactly. So that’s the case. I find more persuasive the argument that civil cases can be brought while you are president. You have to respond to subpoenas in a criminal case or civil case while you are president. Those can be different in kind and in terms of how intrusive they are. The sort of civil versus criminal, by the way, not something that was terribly persuasive on our first issue of Trump immunity.
But this issue, unless you were just going to say everything should be dismissed with prejudice that can’t ever be brought, which is basically not temporary immunity.
Mary McCord: That’s what he wants.
Andrew Weissmann: That is permanent immunity.
Mary McCord: That’s what Donald Trump wants.
Andrew Weissmann: It is also inconsistent with the position he took in the January 6th case where he agreed that it should be dismissed without prejudice. So to me, this issue of what’s hanging over your head, that’s going to happen in the January 6th case anyway. I mean, many people think it may not be much of a sort of Damocles over his head, but as a legal matter, that is in fact something that exists because it’s dismissed without prejudice. Here, there’s already been that jury verdict.
It’s not like he, yes, he can do the appeal, but you could decide this gets stayed for four years. And the idea that, well, it shouldn’t be pending over his head, that’s what it means to have temporary immunity and not permanent immunity unless the Supreme Court is going to upend the entire doctrine and say this temporary immunity is actually permanent immunity because we don’t want anything worrying the pretty little head of the president.
And that’s where there is something to be said for the Bill Clinton case where it’s not like that case was a minor civil case. That was a case which involved sexual harassment, abuse, and I think worse. So it was quite significant even though brought in connection with a civil case, it led to a criminal investigation by Ken Starr and was part and parcel of, by the way, that was a case that Brett Kavanaugh was a part of.
Mary McCord: An investigation that he was part of, right.
Andrew Weissmann: Exactly. So that idea that this is something that can overtake a presidency and their time and attention, I’m not sure that that holds up.
Mary McCord: Right, right.
But there’s another point there too, and that’s why that was allowed to move forward, right, in the Supreme Court, Clinton v. Jones saying this can go forward. That was also just like the Alvin Bragg case, all about personal conduct, right?
Andrew Weissmann: Exactly.
Mary McCord: And so that’s another point that Alvin Bragg makes. Now, there’s a part here that I found not persuasive on this point about personal conduct. He tries to make a distinction between the January 6th case, the federal January 6th case, and this Manhattan case involving fraudulent business records to cover up hush money payments and says this case is all about personal conduct. The January 6th case, and then he says, as originally charged, was about official conduct.
I think Jack Smith would quite vociferously dispute that because as we all know, Jack Smith has, you know, I mean, obviously he argued before it ever went to the Supreme Court that that case was all about unofficial conduct. He even, after the Trump v. United States Supreme Court presidential immunity decision was issued, re-indicted the January 6th case, excluded the one category of actions that the Supreme Court had decided were official conduct. That was the communications between Donald Trump and his Department of Justice about instituting, you know, sham investigations into election fraud. That was off the table. The Supreme Court said that’s official conduct. And then Jack Smith argued that everything else was done in Donald Trump’s capacity as a candidate, not as an office holder, and therefore was unofficial conduct.
So I thought that was a little sloppy on Alvin Bragg’s part, and I think he was trying to kind of get the benefit of trying to make a distinction here. But I would say both of these involve unofficial conduct. But nevertheless, it is more clear, obviously, that pre-presidential payments of hush money to a porn star, you know, and falsifying business records to cover up those payments, that is so outside anything official that it is an easier argument that it’s all personal.
Andrew Weissmann: Yes, I mean, I totally agree with you. It’s an argument he didn’t need to make. And in fact, to me, the better way to do it, because Donald Trump keeps on sort of trying to wrap his arms around the Office of Legal Counsel and the Department of Justice’s agreement to dismiss the January 6th case without ever saying they agreed to dismiss it without prejudice. That’s the piece that to me just makes the position here where they’re saying it should be dismissed with prejudice.
So, yes, I mean, to me, that would have been the clearest argument that you’re taking inconsistent positions and that they’re essentially just arguing for complete presidential immunity. That just can’t be the law. And I just, even with this Supreme Court, they would really have to change what temporary presidential immunity means.
It’s not beyond them to do, but I really do think that there’s no current Supreme Court law that would justify that. There are other ways of the Supreme Court to get to if they don’t think this case should be extant, but this is not the strongest of the Trump arguments.
Mary McCord: I think just to crystallize that, and then we’ll move on to what the options were, is like that idea there would apply no matter what that crime was. Right? So let’s assume it’s a violent crime in, you know, pre-presidency violent crime under this theory. Oh, well, once you’re in the president-elect and you’re going to be the sitting president, that whole thing has to be dismissed. That just can’t be right.
Andrew Weissmann: For good. For good.
Mary McCord: For good and forever. And that just can’t be right.
Andrew Weissmann: So what are the options?
Mary McCord: Okay. So Alvin Bragg, of course, says, you know, we do understand, though, that there are issues regarding maintaining these criminal proceedings that whatever’s left, which at this point is just ruling on, well, at the point he filed this, it was still ruling on the presidential immunity motion was still pending. That’s no longer pending. Right. What’s really pending now still is sentencing.
He says there’s a few options the court would have. One, just entirely stay this proceeding until after President Trump’s term. And that could mean stay the sentencing and the sentencing occurs after that term. It could mean you have the sentencing now, but you stay any kind of execution of that until after the president’s term.
And that’s partly where he goes through that rationale of this is not really like having a pending indictment and a trial and that way it drains the resources because all that’s left here is sentencing.
Although, of course, at the time he wrote this, he also thought the presidential immunity motion was still pending and it’s no longer pending because that happened afterwards.
Option two is, and this is where he gets quite creative. Yes. Which is abate this prosecution, meaning stop it, but don’t vacate the verdict so that you leave outstanding there that there was a jury verdict that Donald Trump was guilty of 34 felony counts and then have kind of like an asterisk. I would say this is kind of like when somebody breaks the home run record, but it was found that they were on steroids. So then they get an asterisk that they broke the record, but they were on steroids.
Andrew Weissmann: Great analogy.
Mary McCord: So it’s like you would leave the verdict and then you’d have this asterisk. He never got to have his appeals done because the whole prosecution was abated. It was stopped in its tracks. And, you know, maybe he’d have won those appeals, but we maintain that verdict.
Third option is various limitations could be put on sentencing so that if the sentencing was now or even later, the court wouldn’t take into account things that take place during Donald Trump’s presidency. Those would just be off the table. In other words, he would only be sentenced based on things that are known to the court now, even if he weren’t sentenced for another four years. The judge could decide this is not the type of case for which a sentence of incarceration is needed and just sentenced to a non-incarceratory sentence.
Andrew Weissmann: In other words, not going to jail.
Mary McCord: That’s right. Not going to jail.
Andrew Weissmann: So the one that Donald Trump harps on mostly for a sort of for press purposes is this issue of abatement, because the support for that that Alvin Bragg has is that that comes up when a defendant dies in certain state jurisdictions.
So Alabama is an example that when someone dies, they have this process where you essentially have this asterisk where it’s like there was a conviction, but the person died. So they never really got all of their appellate rights.
By the way, federal law, very different. If you die before your case is complete, in other words, all the appellate review has not been completed. The case is dismissed and thrown out. That happened to me years ago in the Enron case when Ken Lay, the former chairman of Enron, after the jury came back and found him guilty, but before sentencing, he died. So the case was dismissed. And that’s the federal law. This is now a question of what to do under New York law.
Donald Trump makes a lot of sort of what I’ll say is the performative part of that saying, oh, this is like your dream that Donald Trump would die. And this is why you’re proposing that. So there’s a ton, a ton of hyperbole and invective in the reply brief that was filed yesterday.
I mean, there were some perfectly valid arguments for defense. I’m not saying that I had agreed with them, but there were perfectly good legal arguments that were made. But you really, again, had to wade through language that was surprising.
Mary McCord: Yes, it’s inappropriate, really, in a court of law. And I find it really troublesome because, as you said at the top of the episode, this is a person who’s going to be the deputy attorney general.
Andrew Weissmann: If confirmed.
Mary McCord: If confirmed, I’ve litigated on behalf of the federal government for decades. And in my current position, my team litigates like government attorneys, which is we don’t use that kind of hyperbolic language. We try to stick with facts and law, make our arguments, make them persuasively. But I found, like you, that it detracted from the good points that he had to make by throwing all that kind of really heavy political baggage into his briefing.
Absolutely. So we will await that. I don’t think I’m going to make a prediction, other than to say, I guess I’d be surprised if there was a sentencing before January 20th. And the reason for that is just mechanically, there’s just too much that would have to happen. And the defense is entitled to prepare for sentencing.
And even though they’ve had a lot of time, it’s not like they’ve been told, this is the sentencing date and here’s all the material that you need to be able to get in. And it’s the holiday season.
Mary McCord: And they’re going to appeal the ruling last night of Judge Merchan denying the motion to vacate the verdict on presidential immunity grounds.
Andrew Weissmann: Exactly.
Mary McCord: Now, granted, most appeals are post-sentencing, just to recap here. But again, on the issues of immunity, the Supreme Court has at least suggested that those are things that —
Andrew Weissmann: It’s an issue.
Mary McCord: It’s an issue. That’s right.
Andrew Weissmann: And even the motion that’s pending could be potentially the kind of thing that they say should be appealed. So the idea that this, even if the judge wanted to go forward, which I suspect he won’t, given that he knows that.
Mary McCord: That’s right.
Andrew Weissmann: He knows that there’d be all of these things. So I do think that in all likelihood, there will not be a sentencing before January 20th. But the remaining issue is, will the judge decide that this case is going to sort of be dormant but pending in the background during the presidency?
And the one thing that seems very clear, at least at this moment, is that the President-elect of the United States is somebody as to whom there are 34 felony convictions under New York law. And as somebody who has been in law enforcement for over 20 years and collectively, Mary, we’re talking about decades and decades and decades. I’ve also been a defense lawyer.
This is, as a matter of process, it so undermines the rule of law. And I think that’s part of the reason that we’re seeing so much in the news about pardons of people who have no business being pardoned. Proposed nominations of people who seem to be not just maybe not qualified, but running sort of antithetical to the institution, whether it’s law enforcement or intelligence. It’s this whole idea of the rule of law having this real breakdown, I think sort of emanates from much of what you see Judge Merchan dealing with in the opinion that we just talked about in the first part of the episode today. And then the motion that we’re waiting to see his decision on.
Mary McCord: Yes, I couldn’t agree more. I mean, I would have never guessed that we’d be in this situation where someone pending sentencing on 34 counts is about to put his hand on the Bible and take the oath of office as the President of the United States.
Andrew Weissmann: Well, on that uplifting note, Mary, it has actually been great doing the speed reading of all of this and going through it.
Stay tuned, everyone, for next week when we will go back to what we had said and we’ll cover pardons. Everyone should have a great holiday season in spite of all of what we talked about.
Mary McCord: Yes, in spite of all this, that’s right.
Andrew Weissmann: And just to end maybe on an uplifting note, the decision that we talked about from Judge Merchan is really well crafted. To me, it really upholds the rule of law, just its longevity and what happens to it remains to be seen. But the New York criminal case in many ways is a bright spot in terms of process and speed and due process and lawyering on both sides. I mean, it’s sort of like the way our system should work.
And that’s by the way, regardless of what the outcome was. I mean, the jury could have come out differently. And we know it was argued and handled well by the lawyers and by the judge.
Mary McCord: Yes, that’s right. That is the essence of the rule of law.
Andrew Weissmann: Well, thank you all for listening. And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free, including our recent premium-only episode about our national security apparatus.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Katie Lau and Rick Kwan. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.
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