Former President Trump awaits his sentencing in New York, but he wants the gag order lifted in the meantime. Is that typical? Veteran prosecutors Andrew Weissmann and Mary McCord break down that motion, and the mechanics of sentencing in the lead up to July 11th. They also highlight Attorney General Merrick Garland’s recent op-ed calling for an end to escalated assaults on our judicial system in the wake of Trump’s verdict in Manhattan. Last up, Andrew and Mary scrutinize Judge Cannon’s schedule revisions for several motions in Florida documents case, and analyze the significance of Georgia racketeering case being stayed pending appeal.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome back to “Prosecuting Donald Trump.” It is back to once a week, at least until we have breaking news, which seems to be coming up.
Mary McCord: Could be any moment.
Andrew Weissmann: Exactly. So, it is Tuesday, June 11th, one month from sentencing in the Manhattan case, which is on July 11th. As you all know, I’m Andrew Weissman, and I’m here with the inimitable Mary McCord.
Mary McCord: Good morning.
Andrew Weissmann: How are you?
Mary McCord: You know, I’m pretty good. How are you?
Andrew Weissmann: You know, that’s good.
Mary McCord: This time, you’re the one in a cottage, very rustic looking, with a beautiful view, so.
Andrew Weissmann: It’s true.
Mary McCord: Just another example that we travel with our mics everywhere.
Andrew Weissmann: I know. It’s like the MSNBC kit. It’s a lot of equipment. It’s the burdens of a podcast.
Mary McCord: Poor Andrew. Doesn’t everyone feel sorry for him?
Andrew Weissmann: Yes. Well, you took it all the way to Ireland.
Mary McCord: Yes, I did.
Andrew Weissmann: Okay. So, there’s so many sort of interesting things to talk about. Mary, what’s on our agenda?
Mary McCord: Yeah. So, we are going to talk about what’s been going on in Manhattan, not only the letter request to lift the gag order, but also we want to kind of dig a little bit into, in preparation for the memorandums coming in recommending sentences which will be filed by Mr. Trump’s attorneys and by the DA’s office. What’s that all about? What are the mechanics of that?
Also, we’ll talk about what’s going on at Mar-a-Lago, lots of things happening there, motions hearings coming up, and give a little bit of an overview of what’s happening in Georgia. So, a lot on the schedule. And I really think a good way to start off with talking about New York, Andrew, is by mentioning the U.S. Attorney General Merrick Garland’s op-ed in today’s “Washington Post.” And this is really not something we see all the time from an attorney general.
They write op-eds occasionally on issues of importance. But this one is titled, “Unfounded Attacks on the Justice Department Must End.” And I think it’s something that listeners should read because he talks about all of the different threats of violence coming against prosecutors, the department, career employees, law enforcement, and specifically the conspiracy theories that have been crafted, and these are his words, crafted and spread for the purpose of undermining public trust in the judicial process itself.
And one of the most significant of those has to do with the Manhattan case. That is the false claims that this case brought by the local district attorney, Alvin Bragg, and resolved by a jury of New Yorkers, 12 people in unanimous agreement in a state court that somehow that was controlled by the U.S. Department of Justice. Now, you and I debunked that or we tried to last week on the podcast, but that has spread so much that I read this morning that in polling, 80 percent of Republicans believe that to be true.
Now, polls, it’s a sample size. And overall, Americans polled, the majority did not believe it to be true. But of Republicans, that shows how this message that Mr. Trump and his allies are out there spreading, it is sinking into those who are listening. And that is just so dangerous.
Andrew Weissmann: As you know, that means I have numerous thoughts on it.
Mary McCord: I’m shocked.
Andrew Weissmann: So first, just some factual details, because the sliver, to the extent that this is even trying to be a fact-based attack, and that’s the huge if, because for many people, it’s like facts don’t matter. You really are in Earth 2. But those people who are trying to latch on to something, they point to an attorney named Matthew Colangelo. Matthew Colangelo was one of the trial attorneys in the Trump criminal case.
He was a prosecutor in the New York Attorney General’s office on the civil side. He worked on the Trump Foundation case. So he has experience at that. He also, soon after Biden was inaugurated, he was one of the senior officials on the civil side of the Department of Justice. And then about two years later, he was hired by D.A. Bragg. This is somebody who’s been a career servant. So Mary, maybe I can relate to this more just because I was in the department in all sorts of different positions.
Mary McCord: Yes.
Andrew Weissmann: And I was in the U.S. Attorney’s Office, and then I was on detail to Enron, and then I worked at the FBI. Then I went to private practice. Then I went to the fraud section.
Mary McCord: And then the special counsel.
Andrew Weissmann: Right. So people do lots and lots of different things. It is not unusual to go from a D.A.’s office to the A.G.’s office in New York to then working at the department. They’re just career people. But for his last position in the Biden administration at the Department of Justice, which was a presidential appointment, he’s a career guy. And even then he’s a career guy in the same way that we all know lots of people who have presidential appointments, but you know, they’re just career people. There’s nothing about their background.
Mary McCord: Yeah. They’ve got 15, 20 years in the department, right?
Andrew Weissmann: Right.
Mary McCord: In a non-appointed position, in a career position.
Andrew Weissmann: And also, I think people don’t understand. These people work like you and me. I think we’ve worked for every president who oversaw the Justice Department. It’s very much part of the Trump administration of sort of denigrating the idea that people act out of principle and thinking that it’s all transactional, like there’s no such thing as principle. And I think there is some not-so-hidden racism to that point.
The idea is that Alvin Bragg, as the first black district attorney in Manhattan, is somehow not capable of making up his own mind and deciding this case isn’t ready, then green lighting it when he thought it was ready, that he didn’t bring the financial case because he didn’t think it was appropriate. We’ve seen it brought civilly, but not criminally.
Mary McCord: Right.
Andrew Weissmann: So he made all sorts of decisions. He’s gotten all sorts of criticisms for it.
But now it’s like, oh, but this case, it took a white man to have to tell him to pull strings. It is just an insidious undertone, which I’ve seen before and I’ve commented on in connection with other criticisms of Alvin Bragg. You could broaden this out because you have lots of judges and D.A.’s of color who have the same kind of attacks. But it’s really important to note it as a ground.
And then finally, just a quick comment on Merrick Garland. I think it’s great that he is speaking out. But as you know, I have thought that he should have been speaking out earlier and more often. And by the way, I understand completely that you can’t do what Jim Comey did. You can’t talk about the guilt of somebody.
Mary McCord: Right.
Andrew Weissmann: But that’s not what he’s doing here. I think he sets a wonderful model in terms of who he is and how he acts. But there is nothing wrong with the Archibald Cox model of speaking out as a public servant to let people know what you’re thinking and not to have this view that you can’t speak at all.
Mary McCord: Yes. Although I will go back to he has had some press conferences where he has made these points about the threats, too. So, yeah, he has been saying it. And, you know, one of the things he’s taking issue with is the conspiracy theories that this is all about election interference. That’s another conspiracy theory that he’s taking.
And, you know, I would love to see, I know it’s really tough for judges to speak out, particularly sitting judges. But I think that the judiciary system as a whole is under attack and it really would be useful if judges could speak out about it. And we know some have. We’ve talked about them on this program before.
Andrew Weissmann: Absolutely. And Chief Justice Roberts spoke out during the Trump administration about how there aren’t Trump judges and Obama judges. And certainly the court is under such attack for a whole variety of reasons, but particularly because of the conduct of two of its members. And we’re not going to get into that.
Mary McCord: That’s right.
Andrew Weissmann: It’s too much of a detour. But, you know, if you’re talking about the judiciary speaking out, this is like tone from the top.
Mary McCord: Yeah.
Andrew Weissmann: Mary, how does this relate in your mind to the gag order and what should we expect in terms of timing there?
Mary McCord: So Mr. Trump, through his attorneys last week, wrote a letter to Judge Merchan saying trial’s over. Please lift the gag order. It’s not necessary anymore. It was specifically granted because of concerns about the integrity of the trial proceedings and those are done and it should be lifted.
Not surprisingly, Alvin Bragg’s office wrote a letter saying we want to fully brief this. We do not believe that the gag order should be lifted, but we’d like to brief this and we’d like to brief it on the schedule, the same motion schedule that the court already set for other post-trial pre-sentencing motions, which means the briefing would be due on that as well, again, as other post-trial motions on June 13th. So just two days from now and the people, the D.A.’s office will respond by June 27th. And so all of this will happen, of course, before sentencing.
Now, whether the judge will take up post-trial pre-sentencing motions before sentencing, but he hasn’t set any dates as far as I’m aware for any types of motions hearings. And I think partly that will depend on what other motions come in, because obviously we’ll see arguments about this gag order. And I think we’ll see from Alvin Bragg the fact that the administration of justice and the need for this gag order continues beyond the day of the guilty verdict, certainly continues through sentencing. And I think they’ll argue continues through any appeal.
And just to be clear, the danger to witnesses and jurors certainly didn’t end with the end of the trial.
Andrew Weissmann: Hence, what it is that Merrick Garland’s op-ed, which, you know what —
Mary McCord: Exactly.
Andrew Weissmann: — talks about the violence that’s going on. I mean, it starts with talking about someone convicted in connection with sort of acting on the —
Mary McCord: A bomb threat.
Andrew Weissmann: — exactly. Acting on the conspiracies theories. And he clearly says it is fine to have oversight of the department to oversee their mistakes, to make sure that there’s congressional oversight. It’s fine to have First Amendment talk and speech. And he says that’s fine. That’s to be protected by the Department of Justice. But here we have actual violence and threats of violence. And that’s what he’s sort of focusing on.
But to me, they sort of relate. And for those people who are interested, we will put in the show notes a link to the Merrick Garland op-ed in “The Washington Post” so that you can read his exact words and you don’t have to get it filtered through us. So the reason we sort of started with this is because what he is talking about and seeing nationwide is very much a microcosm of what is going to be before Judge Merchan in connection with the continuing need.
And personally, as we’ve talked about, it’s hard to see how there isn’t still a continued need, particularly with respect to jurors. All of that, as Mary, as you said, and just so people understand, is the position we’re waiting to hear from Judge Merchan as to whether he wants briefing and whether the schedule proposed by the D.A. is the one that he will set or not. So right now, the gag order is in place, presumably, and we’re waiting to hear from the court as to what briefing he believes he needs.
Mary McCord: I mean, at this point, we’re two days away. So I suspect the D.A. is going to file in accordance with what they proposed and he’ll accept briefs because that’s a motion schedule, he said. But we’ll also see, we’ll be able to talk next week about any other post-trial motions, such as a motion for a new trial making allegations of evidentiary and other errors.
Andrew Weissmann: Yeah. So this is a perfect segue. Why don’t we take a break? And when we come back, we’re going to talk about sentencing. And just so everyone knows the schedule there on June 13th.
Mary McCord: It’s the same schedule, 13th.
Andrew Weissmann: Oh, yeah, yeah, yeah. You’re right. It is.
Mary McCord: Yeah.
Andrew Weissmann: So June 13th, same date. We’re going to hear from Donald Trump as to what he proposes. News flash, it’ll be zero.
Mary McCord: Yeah.
Andrew Weissmann: And then I think it’s two weeks later on the 27th, we will hear from the state. We don’t know yet whether those will be publicly filed. And we’ll talk about that. But when we come back, what Mary and I wanted to talk to you about was sort of give you the architecture of sentencing and how it works and what the general considerations are before we get next week into the weeds of how it applies in this particular case.
It’s things that Mary, you and I think about sort of, it’s so second nature. And I think in some ways I haven’t seen people on cable news and in op-eds talking about sort of just the general structure of sentencing. So I thought it’d be worth taking a few minutes to do that. We’ll do that right after we come back.
Mary McCord: Sounds good.
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Mary McCord: Well, as promised, we will now talk a little bit about the sort of ins and outs of sentencing. And I want to start with one comment, Andrew, and then throw it to you. As everyone knows, we spent most of our careers in the U.S. Department of Justice following sort of federal sentencing guidelines and the U.S. Code when it comes to sentencing factors.
And the U.S. Code is way more explicit about all the things that the judges are supposed to consider when they impose sentencing. And there’s also a whole set of U.S. sentencing guidelines that for a while were mandatory. Then the Supreme Court ruled they couldn’t be mandatory, they were just guidance. But there’s still something that judges will always rely on.
And part of the process in sentencing federal court is the probation office, the pre-sentence report writer will interview the defendant, kind of like a probation officer interviewed Mr. Trump yesterday, and will write up a recommendation. And part of that recommendation will include application of the federal sentencing guidelines.
The U.S. government’s sentencing memo always also includes a calculation of the federal sentencing guidelines. The defendant’s brief and sentencing memo will always include a calculation. And then they’ll argue about whether it should apply or not apply and how it should apply and those kind of things. That’s different in the New York state system.
There is one thing in the applicable statute that provides some guidance, and that is in the New York Penal Code. Of course, we know and I think we’ve discussed that for a Class E felony, like these are, all 34 of these are Class E felonies. The maximum term of imprisonment is a sentence of up to four years per count. And in many felonies in New York, you have to do what’s called indeterminate sentencing so that you give a range with a minimum and a maximum. And by you, I mean the judge gives a range with the minimum and the maximum.
There is an exception, though, for Class E felonies, and that is, and I’m just going to read it, the court having regard to the nature and circumstances of the crime and to the history and character of the defendant. So if the court then, considering those things, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.
So we’ve talked before about how it does not have to be a sentence of imprisonment, but it also doesn’t have to be this minimum maximum thing. But to do that, the court has to consider, and this is where there’s a parallelism, of course, to the federal statute, the nature and circumstances of the crime and the history and character of the defendant.
Andrew Weissmann: Yeah. So what that means is that as the judge actually told the jury in this case, as part of a curative instruction, he can, if he considers those factors, he can go anywhere from zero to four per count. And he could, I mean, technically, he could run the four years as a maximum, you know, consecutively.
Mary McCord: Consecutively.
Andrew Weissmann: So it would be four times 34. I don’t do math in public, but that’s not going to happen. I mean, nobody does that. The other is that when it goes to zero, there are all sorts of things that the judge can fashion. He can fashion probation. He can have community service. He can have fines. There also are maximum fines. They’re very low here.
And so there’s also the question of when any sentence would start, which is a very important issue here. That’s sort of a real second issue, not just what the sentence is, but when it would start. And there’s also this issue of you can have a sentence where it’s intermittent. So sometimes people are told you’re under house arrest from this time to this time, or you are going to serve weekends and then work during the week, but you have to show up in prison for Saturday and Sunday. So there’s just a whole wide range.
But I think the big picture, one of the things that’s important about what you read about the safety valve that allows the judge to go under one year is that it gets at the two basic building blocks of sentencing. And that is offense characteristics and offender characteristics. And by offender characteristics, it’s things like, is this the first time offense of the person? Is this something that they’ve never engaged in crime before or have been convicted of crime? Are they otherwise somebody who’s done tons of charitable work? Is this aberrational conduct in the scheme of things? They’re all things about the person.
Mary McCord: And oftentimes going back to like your family and upbringing, particularly in violent crimes, they’ll look at was the person, the defendant, you know, abused as a child and things like that. They’ll go into mental health issues if there are any.
Andrew Weissmann: Absolutely.
Mary McCord: Physical health issues if there are any.
Andrew Weissmann: Drug history. I mean, things that are not excuses. It’s not like you’re not culpable, but they are mitigators that the court can consider. And so there’s a whole range of things about the person. And then the second is issues that deal with the offense. So obviously, a murder is going to be more serious than a brief battery, which didn’t result in permanent harm.
But then there are lots of things. What’s your role in the offense? Were you a leader in the offense? Were you recruiting other people to participate in the offense? Was it a long-term plan? In other words, not just a spur of the moment, but something that happened over a long period of time? What am I missing, Mary, as to other offense characteristics?
Mary McCord: Yeah, those are all important was you did talk about sort of like the leader. And, you know, that’s not necessarily relevant if it’s a purely sort of individual crime. But here, remember, we’ve got the underlying offense here in terms of the purpose for the fraudulent business records as charged was a conspiracy to violate New York election law. So we necessarily have other people involved.
Andrew Weissmann: Another one, abusive position of trust.
Mary McCord: Yes.
Andrew Weissmann: These are all things that are delineated at the federal level and are argued by analogy at the state level. So if you are a doctor or a lawyer or you have a fiduciary duty and you’ve breached that, that can be considered an aggravating.
Mary McCord: Or a public official.
Andrew Weissmann: Yeah. As you notice, I’m trying to not totally relate it to what we’re going.
Mary McCord: Yeah, okay. Yeah.
Andrew Weissmann: Exactly. Or a public official because remember, most of these 34 acts, the president himself was signing checks for many of these from the Oval Office. Now, he is not doing it —
Mary McCord: Yes, while president.
Andrew Weissmann: — while president, but not in official capacity.
Mary McCord: Right. Still personal, but yes.
Andrew Weissmann: So that could be another sort of an offense characteristic. And then things like what kind of statements you’ve made, whether you’ve accepted responsibility, whether you cooperated. Now, just as we’ve said, there’s nothing wrong with going to trial and what’s called blowing trial and then preserving your right to appeal. And that doesn’t mean you’re required to say at sentencing and you can be penalized.
Mary McCord: I did it. I was guilty. Right. Yeah.
Andrew Weissmann: Oh, I’m so sorry, but you don’t get points off.
Mary McCord: That’s right.
Andrew Weissmann: Whereas when you accept responsibility, you do in the federal system get points off. One final thing is that the court is trying to figure out how to treat likes alike. That goes back to Aristotle. And the big issue is how do you determine who a like a person is? But in this situation, you do have Michael Cohen, who in his plea, he pled to count seven and eight in his federal plea. Remember, he was charged federally for this.
Mary McCord: Yes.
Andrew Weissmann: And those two counts, he was sentenced to three years on each count to run concurrently. So somebody who was, I think, quite clearly a lower level participant in this crime already got three years. And I’m not saying that means that Donald Trump should by necessity at least get three, but I’m just thinking about that —
Mary McCord: What the comparators are, yeah.
Andrew Weissmann: Exactly. And that is something that the federal guidelines say is supposed to be considered against just guidelines is making sure there isn’t sentencing disparity between like people. In many ways, the sentencing guidelines, lots of common sense, but it’s trying to sort of articulate for a judge and for the parties to know how to sort of assess and argue to the judge. What are all the sort of factors so that you are being careful in the way you’re thinking about it?
Mary McCord: Yeah. The reason for the guidelines originally is because of sentencing disparities across the country. Right.
Andrew Weissmann: Exactly.
Mary McCord: There are judges that notoriously sentence very, very harshly. Judges that notoriously gave probation for like the same types of crimes, right.
Andrew Weissmann: Exactly.
Mary McCord: And so Congress thought, you know what, we need to like get some consistency here. And I totally agree with that because it’s it seems incredibly unfair, you know, that your sentence should just depend on sort of the vagaries of what judge you get. And so the guidelines were that attempt and effort. And even without those kind of guidelines in New York, like you said, I think we’ll see both parties coming in with relevant comparators and making arguments about whether, you know, Mr. Trump’s crimes are more or less like these comparators and, you know, what the sentences have been for those.
And it’s interesting to flag Michael Cohen because, of course, like you just indicated, he was charged with federal crimes sentenced under the federal code as opposed to state. So we’ll see how those comparators shake out when we see the sentencing memos.
Andrew Weissmann: So, Mary, when I started, this is how old I am. It was before the sentencing guidelines. And it’ll give you a sense of, for people listening, what Mary’s talking about. When I was clerking in our district, which covered JFK Airport, we had a lot of drug couriers. And there were, for some judges, sort of very standard sentences for cocaine and for heroin amongst sort of liberal versus conservative judges.
For instance, if you’re one of these sort of low-level drug dealers involved with cocaine or heroin and you’re in front of a conservative judge in the Eastern District, you might get 10 years. That was sort of a routine sentence. But if you then just happened to get what was sort of a so-called liberal judge, you would routinely get three years. And the same defendant, this goes back to the pens at the end of the day, and it’s like they compare notes and it’s like the same amount of drugs, the same sort of criminal history.
We had so many of these cases. And the only distinguishing feature was the judge they got. And so, Mary, to your point, that was the harm. That was the disparity. That was the effort of the sentencing guidelines to try and reduce, not eliminate, but reduce that disparity. And certainly it goes back to our first topic, which is this idea of the need for a gag order continuing for what Judge Garland, I still call him Judge Garland because that’s what he was for so many years.
Mary McCord: Yes.
Andrew Weissmann: This is one of the first anecdotes that you were told when you arrive in the Eastern District of New York as a beginning AUSA. And there was a organized crime defendant who was being sentenced by a very elderly judge, a judge who ultimately died, I think, when he was over 100.
Mary McCord: Oh my goodness.
Andrew Weissmann: And he was sentencing the defendant. And as you know, Mary, before your defendant’s sentence, the judge turns to the defendant and says, is there anything that you would like to say? They hear not just from the lawyers.
Mary McCord: Right.
Andrew Weissmann: And the defendant basically was incredibly rude, you know, just no acceptance of responsibility and then turned to the judge and said, you know what, judge, you can do what you want because at the end of the day, I’m going to be getting out and I’ll be pissing on your grave.
Mary McCord: That is a lesson in what you don’t say, but I can’t wait to hear what the sentence was.
Andrew Weissmann: Well, this is what the judge said. Ordinarily, sir, that’s the thing that you say after you’re sentenced.
Mary McCord: That’s right. Not when you are right now trying to be throwing yourself at my mercy, right?
Andrew Weissmann: Yes.
Mary McCord: That’s a odd way of doing it.
Andrew Weissmann: The reason I raise that is because Donald Trump is in the process of, in many ways, doing that exact thing, which is saying things that are just goading the judge and basically —
Mary McCord: And the whole system, right? Undermining the whole system.
Andrew Weissmann: Exactly. And saying, do it, do it.
Mary McCord: Rigged trial.
Andrew Weissmann: Go ahead, do it. What I will say is, by the way, this is where judges like Judge Merchan, the judge who had this case, judges put all of that aside. People think yes, judges are human, but sentencing is something that I think everybody who knows any judge knows just how seriously they take this and how dispassionately they view this.
So the fact that you say that is somewhat put aside other than you think about it in terms of a complete lack of remorse. So with that, let’s take a break. And then there’s a bunch of stuff in Mar-a-Lago.
Mary McCord: Yes.
Andrew Weissmann: And then briefly, we can discuss a few little things that are happening around the rest of the world.
Mary McCord: Exactly. Be back in a minute.
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Andrew Weissmann: So, Mary, there actually is a lot going on in the Mar-a-Lago case. I know there’s no trial date. I don’t think anyone thinks there will be a trial date. But that doesn’t mean there aren’t interesting things to focus on. And I know now that the New York case, the sort of the day-to-day is over, and we’re sort of awaiting sentencing issues. I know you’ve been delving deep into those. So what should we know about?
Mary McCord: Yeah. So there’s several things that are coming up. There’s a series of hearings coming up starting on June 21st. And the judge put out a scheduling order last week about this. So she’s going to hear, as listeners know, Mr. Trump’s team filed many, many different motions to dismiss the case against him. Some of those she’s ruled on, mostly in ways where she put off a final ruling until the trial. And we’ve talked about some of those and the problems with that, because it means it’s something that Jack Smith can’t necessarily appeal before trial.
And once a jury is sworn, it makes it much more difficult to do anything like that. Impossible, really. But there are others that she hadn’t ruled on yet. And one of those, which I would say is a frivolous motion, but has gotten a lot of attention, is a motion to dismiss the indictment on the grounds that the special counsel, Jack Smith, was unlawfully appointed. And what’s interesting about this to me is that she has scheduled, and Mr. Trump filed this motion based on two grounds.
One, that his appointment violated the appointments clause of the Constitution, which requires that for certain officers that the nomination by a president be made and confirmation by the Senate, right? That’s for certain officers. Inferior officers, that doesn’t apply to. Employees, that doesn’t apply to. So one argument is that the appointment violated the appointments clause.
Another argument is that the appointment violated the appropriations clause because of the funding of Jack Smith. So what’s really interesting to me about these motions is that this stuff’s been ruled on, right?
Andrew Weissmann: Wait.
Mary McCord: And as you know —
Andrew Weissmann: Wait, you’re preaching to the choir.
Mary McCord: To the choir. I mean, you worked for special counsel Robert Mueller. Robert Mueller, these same arguments were made. They were rejected. They were made back during previous special counsels and independent counsels, and go all the way back to independent counsel in a case called U.S. v. Nixon. Now, yes, you notice I changed my verbiage from special counsel to independent counsel because this has evolved over the decades.
Andrew Weissmann: Yeah.
Mary McCord: But literally, there have been decades of some version of an independent or special counsel being authorized by Congress, being appointed by the attorney general. The old Independent Counsel Act had a different means of appointment, but it was not nominated by the president and confirmed by the Senate. It was a different appointment process. Every time it has been upheld as not being a violation of the appointments clause.
Andrew Weissmann: So obviously, the Mueller investigation, all of those challenges were defeated. Two quick factoids. Notably, you don’t see Donald Trump or any Republican saying that the appointment of the special counsel who is currently prosecuting Hunter Biden, that that is unconstitutional. And you don’t see the same thing being made with respect to Rob Herr, who is the special counsel who is investigating the current president.
So, you know, it’s selective. It’s like, oh, only that special counsel? And this is one you can’t distinguish. I mean, it’s in for a penny, in for a pound.
Mary McCord: That’s right.
Andrew Weissmann: So, that’s one factoid. The second is a little factoid about Chief Justice Roberts, that he worked with the Senate on, as I understand it, with a proposal when they were getting rid of the independent counsel law, which people thought had too many downsides and too much independence.
Mary McCord: Right.
Andrew Weissmann: And they came up with a proposal that is really, really, really similar to the special counsel regulations. In other words, having this process of a special counsel involved essentially as part of the Department of Justice —
Mary McCord: Yes.
Andrew Weissmann: — as internal rules. And as Daphne Friedrich, a judge that we talked about, I think, last —
Mary McCord: Yes, mmhmm.
Andrew Weissmann: — last episode, who’s appointed by Donald Trump, that she ruled on this issue and saying that these are constitutional. She said, these are just internal rules to the department. The attorney general is free to follow them or not follow them any day of the week. And the special counsel is clearly just a subordinate officer beholden to the attorney general.
Mary McCord: Attorney general.
Andrew Weissmann: And doesn’t even have to follow any of these rules. And I guess I said two facts, but I’ll give you a third, which is when I was working for Special Counsel Mueller, I have to say, at least in the way it operated, I have never had more oversight from the department than when we worked for Special Counsel Mueller. We never were more scrupulous in following the justice manual. There was complete and total oversight with respect to everything, much more than when I was in the U.S. attorney’s office or was in main justice in the fraud section.
Mary McCord: Okay, now you’re raising things. We’re going to have to talk about in a whole another episode. I mean, are you suggesting that these special counsel regulations don’t really provide any independence at all or any? I mean, they talk about the attorney general shall not have day to day supervision and you’re suggesting something a little different.
Andrew Weissmann: Yeah.
Mary McCord: Yeah.
Andrew Weissmann: Yeah. So, let’s just say, I’m just saying in my experience that there were a lot of meetings with the acting attorney general member Rod Rosenstein until Bill Barr came in —
Mary McCord: Because Jeff Sessions had recused himself. The first attorney general under Donald Trump.
Andrew Weissmann: Properly.
Mary McCord: Yes, properly.
Andrew Weissmann: Exactly. He got in a lot of trouble for that.
Mary McCord: Yeah.
Andrew Weissmann: For following the law.
Mary McCord: Yeah. He got fired for that, basically. Can I say a few other things about this motion?
Andrew Weissmann: Yes.
Mary McCord: We just made our points about why we think this frivolous. That said, Judge Cannon, these cases other than U.S. versus Nixon, which is a Supreme Court case, all these other cases like about Mueller. These were the D.C. courts and their federal courts. But the federal courts in D.C., the D.C. circuit. She’s in the Southern District of Florida. Her appellate court is the 11th Circuit. Eleventh Circuit, I don’t think, has ruled on this before. So she could at least say I don’t have any binding precedent here so I want to hear the arguments from both sides.
And there is an argument made by Mr. Trump that the U.S. v. Nixon case arose in different contexts and is limited by its facts. And moreover, what the court said there was dicta, meaning it’s not a load bearing part of the decision. Therefore, it’s not binding precedent. So there are arguments that can be made to why she has a free hand to hear this all over again.
One of the things, though, that I find fascinating is that she did allow several amicus briefs. That is a friend of the court brief. We’ve talked about those before. That’s not so fascinating to me. I’ve filed amicus briefs at the district court level. It’s not the ordinary course. They’re much more frequent in the Supreme Court and in the appellate courts. But they do happen sometimes.
But the amicus briefs, even the ones in support of Mr. Trump, are completely all over the board, like they’re not even consistent with each other. One of them argues he is an officer. He had to be appointed, nominated by the president and confirmed by the Senate. The other one says he’s not an officer. He’s a mere employee. Therefore, he can’t have the authority that he has to bring these cases. So it’s like even your amicus who are trying to support you, Mr. Trump, don’t even agree on what the argument is.
Andrew Weissmann: And some of them say, and if you rule in our favor, everything has to start again and it’s all void. And another says, no, no, no, you don’t have to start again. You can just —
Mary McCord: That’s right.
Andrew Weissmann: — you can just appoint a U.S. attorney —
Mary McCord: Change of going forward.
Andrew Weissmann: — and move, it goes forward. So it’s basically a smorgasbord of things to do.
Mary McCord: Yes.
Andrew Weissmann: I have no confidence whatsoever that she will issue a well-founded and well-reasoned decision. One of the reasons I say that is one of the things that she just recently ruled on yesterday has to do with various technical things about motions made by all three defendants and whether the counts are duplicative of each other, whether they adequately state a claim, whether the indictment has some surplusage, meaning language that is not necessary.
And there’s lots of little pieces there. But there’s a little gift basket for Donald Trump in this, which has no site to any support, meaning there’s no legal support cited for this. This is on page seven of her decision. And I’m going to quote from it, which she says, I am going to instruct the jury, quote, “to determine unanimously which means, if any, each of the two defendants charged in counts 34 and 36 used to commit the alleged crimes,” unquote.
Now, people might be going, what does that mean? And it’s the part where it says unanimously which means.
Mary McCord: Means.
Andrew Weissmann: So this is black letter law. The methods and means that a defendant uses is not something that has to be determined unanimously. You can rob a bank with a gun or a knife or a fake gun. Those are all means by which you rob a bank. You could use a Chevy or a Cadillac —
Mary McCord: As your getaway.
Andrew Weissmann: — as your getaway car. Those are means. Those are not what are called elements of the crimes.
Mary McCord: Right.
Andrew Weissmann: The elements have to be unanimous. And sometimes there’s discussion about what is or is an element or isn’t —
Mary McCord: Right.
Andrew Weissmann: — and that’s important. And there has to be unanimity. But it is black letter law that unanimity does not apply to means. And yet the thing that I just read is what I would call —
Mary McCord: Yes.
Andrew Weissmann: — white letter law, which is it is wrong.
Mary McCord: Oh, gosh. Yeah.
Andrew Weissmann: But it is in black and white.
Mary McCord: So we will see more briefing on that. We will see at the time if there is ever a trial scheduled in this case, we will see Jack Smith filing a motion for the jury instructions and making all the arguments that you just alluded to, Andrew.
Andrew Weissmann: It’s funny. I just thought of you and there’s a footnote. It’s like footnote three.
Mary McCord: Yes.
Andrew Weissmann: Oh, let’s turn to footnote three because footnote three is going to have some cases. And I was really interested because I was like, I want to read the cases because I didn’t think that that was the law.
Mary McCord: Where is she getting this?
Andrew Weissmann: And then footnote three, there’s not a single case cited. And I was like, Mary is going to have like a cow or kittens or a combination of them.
Mary McCord: No, it’s just I guess, you know, the law, according to Judge Alieen Cannon. So, there you go. Yeah, we’ll see, more to come on that. The other thing she did in that particular order is you mentioned surpluses. She struck from the indictment a paragraph that listeners will probably remember because it was a paragraph alleging that there was a time up at Bedminster.
That’s a paragraph in which it was alleged that in August or September of 2021, Trump met in his office at the Bedminster Club with a representative from his Political Action Committee and commented about an ongoing military operation in country B that was not going well. This is after Mr. Trump was no longer president, by the way. This is again, 2021.
Andrew Weissmann: Yeah.
Mary McCord: And then showed that PAC representative a classified map of country B, told the PAC representative that he should not be showing the map to the PAC representative and don’t get too close to it. And the PAC representative, of course, did not have any security clearance or need to know that classified information.
She struck that from the indictment, saying essentially it’s surplusage. It’s not necessary to the charged crimes and to the extent that it was included there because it’s evidence that the special counsel is going to seek to admit at trial under Rule 404 B. Remember, that’s the rule by which you can put in other bad acts if they’re pertinent not to your propensity to commit crime, but if they’re pertinent to things like knowledge and intent and motive, those types of absence of mistake.
She says that’s something you’ll have to file. There’s a procedure for that. You’ll have to file a 404 B motion. The defense will get a chance to respond to that and I’ll be able to rule and I may not be able to rule on that until trial. So, I don’t know, kind of a weird thing to me. Why bother striking it at this point just to say I’ll take it up later whether we’re admitted into evidence, but that is what she has done.
Andrew Weissmann: That’s not like the worst thing in the world.
Mary McCord: No, it’s not.
Andrew Weissmann: But technically —
Mary McCord: Just weird.
Andrew Weissmann: — that’s kind of wrong because like it only is struck if it’s not going to be 404 B and it’s also sort of if the indictment is not evidence anyway and if the indictment is not going to go back to the jury, then there’s no real reason to strike it at all or to rule on it. And so it’s only really surplusage if she’s going to say that it is something that I’m not going to allow.
But the thing that I think she is wrong about is that you do have in indictments, when you have a speaking indictment, you do include things that are sort of expansive about the conspiracy.
Mary McCord: Yes.
Andrew Weissmann: And whether you call them sort of technically 404 B or something that’s intrinsic to the conspiracy.
Mary McCord: Yes.
Andrew Weissmann: You do that. The New York criminal case is a good example of that —
Mary McCord: Yes.
Andrew Weissmann: — where they lay out what happened with the doorman. They lay out what happened with Karen McDougal.
Mary McCord: In the statement of facts supporting the charges there, yes.
Andrew Weissmann: Exactly. And so because they don’t really have speaking indictments, but it’s like that would be the kind of thing that you would include in an actual speaking indictment. So it’s not the thing I got the most wrapped around the axle on. But again, I just was struck by that it was so naive and it just showed such, I thought, such an effort to try and find something wrong here and she seemed so inexperienced.
Mary McCord: You know how I took it? I took it because she has a bunch of other paragraphs that I didn’t read that I took it that she doesn’t like speaking indictments. She makes clear indictments don’t have to be speaking. And this is true. Indictments can be super bare bones. They can just be the count’s charge. Now, when it’s conspiracy, it’s a little bit different, but not all of these are conspiracies.
The obstruction stuff is different and you’ve got to spell it out. But oftentimes, prosecutors will do a speaking indictment so that they’re providing more context to the charges. That’s for the benefit of the judge. And it’s also for the benefit of the defendant to have a better idea about what he’s really being charged with, because oftentimes if you do a bare bones where you just literally list the charges and you just parrot the words of the statute, the defendant will come back and say, I can’t understand what I’m being charged with. You have to give me more facts.
And he’ll ask for something called a bill of particulars to explain what are the facts around this. So —
Andrew Weissmann: Don’t you think listeners are sitting there going, wait a second, let me just understand. If you just do a bare bones indictment, the defendant goes, I need to know more.
Mary McCord: Yeah.
Andrew Weissmann: But if you do a speaking indictment, they’re like, wait a second, I want to know less.
Mary McCord: That’s too much. That’s great. Or that I want the public to know less. I think that’s the key there.
Andrew Weissmann: Exactly. Exactly.
Mary McCord: I want the public to know less.
Andrew Weissmann: Yeah.
Mary McCord: And I think that’s where she was maybe weighing in just a little bit. Okay, let me just preview something we’re going to do, I hope, next week, because the other motions hearing, she said, is on the motion to suppress evidence. And this is a motion to suppress —
Andrew Weissmann: Oh, yeah, yeah.
Mary McCord: — a bunch of the evidence on grounds that the original search warrant was, you know, omitted important information. And it’s almost, to be honest with you, laughable, the things they say that were omitted and require a hearing. And then they also really want to re-litigate the decisions made by other judges to pierce the attorney-client privilege because of the crime fraud exception, which we’ve alluded to at various other times in this podcast and we’ll talk about a lot more.
And basically re-litigate the decisions to have Mr. Trump’s attorneys, who were advising him back at the time of the subpoena for classified documents, have those attorneys testify. Those attorneys did testify in the grand jury. And this is really an effort to get their testimony suppressed on grounds that, you know, crime fraud exceptions should not apply. So really interesting in the weeds legal stuff that I look forward to geek out and talk about next time.
Andrew Weissmann: Mary, Georgia, quickly.
Mary McCord: Georgia, the Court of Appeals there, which has taken up the appeal on the lower court’s ruling about the disqualification of Fani Willis. As you know, the lower court gave the ultimatum. Either Fani Willis, you get off this case or Nathan Wade, the special counsel you had hired, should get off this case. Special counsel got off this case. That is something that is up on appeal.
And the Georgia Court of Appeals said they would take that up. And they did, after saying that, they are staying the case while this appeal is pending, which means Judge McAfee, at least with respect to Mr. Trump and those who made the motion for disqualification and took that appeal, that criminal case has now stayed against them.
Andrew Weissmann: So, Mary, while we’ve been talking, there is a verdict, I should say three verdicts with respect to the three counts in the Hunter Biden case, all guilty, not surprising. And then we can talk next week a bit about this, because it’s probably less interesting in terms of the specifics of the case. But I think it’ll be interesting in terms of the rule of law and the contrast between Joe Biden and Donald Trump, as well as the role of jurors in both the Hunter Biden case and the Donald Trump case.
So it’ll be sort of make for some interesting comparisons, to say the least. But with that, I definitely think there’s a lot. Essentially, this is like a two-ring circus right now. There’s a lot going on that’s important in the New York case and the Mar-a-Lago case. It just —
Mary McCord: Gives us lots of things to talk about. That’s what it does. It gives us lots of things to talk about.
Andrew Weissmann: Yes, it does. And lots of things that are innervating to talk about.
Mary McCord: Never a dull moment.
Andrew Weissmann: Exactly.
Mary McCord: Yes.
Andrew Weissmann: Okay. So with that, Mary, so nice to see you.
Mary McCord: Same. See you next week.
Andrew Weissmann: Thanks so much for listening.
This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Katherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.