There was a lot of movement late last week in Donald Trump’s ongoing criminal cases in DC and New York, but with very different results. Veteran prosecutors Andrew Weissmann and Mary McCord review last Thursday’s status hearing in Trump’s DC election interference case and break down the new deadlines set in Judge Chutkan’s scheduling order. Then, they dig into the nuance of Judge Merchan’s decision to push back the date of Trump’s sentencing, as well as delaying his ruling on how immunity applies to the case until after the November election. And before winding up today’s episode, Mary and Andrew give their uniquely informed take on the DOJ’s actions regarding Russian efforts to interfere and influence the 2024 election.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hi and welcome back to “Prosecuting Donald Trump.” It is Tuesday morning, September 10th. I’m Andrew Weisman and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So there’s actually a lot to talk about that has happened.
Mary McCord: Do we ever say there’s not? I mean.
Andrew Weissmann: I know, but it seems, well, you know —
Mary McCord: It always seems surprising that there’s this much —
Andrew Weissmann: Yeah.
Mary McCord: — when we think, oh, maybe this will be slow.
Andrew Weissmann: And also the summer had so much political news that —
Mary McCord: Yes.
Andrew Weissmann: — it was kind of nice. You and I both had a bit of a breather in terms of our MSNBC duties. You know, I remember going back on air and Lawrence was like, hey, remember this guy? And I was like —
Mary McCord: Yeah.
Andrew Weissmann: — and I was like, yeah. It was like a little mini vacation. But it really feels like the fall.
Mary McCord: Yeah. And now another one this week with the debate tonight, so.
Andrew Weissmann: Exactly. It’s so funny because it’s like big political news, but like you and I get to like kick back and actually watch it like anyone else. And it means we can have a drink in hand.
Mary McCord: Yes, yes, okay. Important addition.
Andrew Weissmann: Okay. So having said —
Mary McCord: But still this —
Andrew Weissmann: — the stuff that’s going on —
Mary McCord: Yes.
Andrew Weissmann: — what are we going to talk about?
Mary McCord: Well, of course, we will review the status hearing that occurred last week in Judge Chutkan’s courtroom here in Washington, D.C. about what to do post-immunity decision. And we will talk about her scheduling order. We will also talk about Judge Merchan’s decision up in Manhattan to postpone not only the sentencing of Donald Trump until after the election, but also his decision on how immunity should apply to the jury’s verdict in the Manhattan case that he also postponed till after the election. And we will probably have some comments about, is there other different approaches here between these two judges and are there reasons for that, et cetera.
And then there’s something I’m actually really anxious to get to. And I think you are too, because these are things based on our own past careers and our own personal interests that I think are really important. And that is big news out of the Justice Department last week in terms of actions taken regarding Russian influence operations on this year’s election. And I think it’s important for our listeners to understand that and that will really just be a preview. We will do a deep dive into that later.
Andrew Weissmann: Yeah, because there was just so much, but you know, in thinking about the topics, we’re basically going to be covering a court right near you and then a court right near me. So —
Mary McCord: Yup.
Andrew Weissmann: — it’s basically a D.C. and New York date for today’s episode. So with that, should we start with the Judge Chutkan oral argument and then her decision later that day —
Mary McCord: Yes.
Andrew Weissmann: — with respect to scheduling? You know, I think we talked in a previous episode about what the different parties wanted in their joint disjointed filing —
Mary McCord: That’s right.
Andrew Weissmann: — or their disjointed joint filing. And at the time, though, we didn’t have what exactly Judge Chutkan was going to do after she heard from the parties. So we actually have that. And should we start with the sort of bottom line? What is it? Bluff?
Mary McCord: Bottom line up front? Yes, yes.
Andrew Weissmann: You know, the bluff, which is bottom line up front, which by the way, it’s true for not just law, but for many areas where you teach people when they’re writing or when they’re speaking to like, don’t bury the lead.
Mary McCord: Don’t make me read five pages to find out what I really want to know, right?
Andrew Weissmann: Right.
Mary McCord: Tell it to me up front.
Andrew Weissmann: So she actually set a number of schedules for a number of motions. If you remember, the debate was Donald Trump sort of saying, let’s do everything seriatim and take it in bite-sized pieces. And Jack Smith saying, no, we can do it all at once and we can do it simultaneously and there’s no reason to put stuff off. But the bottom line is —
Mary McCord: Hang on. And importantly, Donald Trump was saying, seriatim and we don’t want to hear anything from the government until after the election.
Andrew Weissmann: Yeah. Yeah, yeah, yeah.
Mary McCord: We’ll stop.
Andrew Weissmann: Right, exactly, and he can shut it.
Mary McCord: Yeah, exactly.
Andrew Weissmann: Or shut it down. So without getting into too much detail, basically, Judge Chutkan agreed that there was going to be scheduling imminently on a whole variety of motions, the immunity issue, the scope of Brady, the proper appointment and the validity of Jack Smith as a special counsel. All of that was something that she’s scheduled out. But the key one, which is immunity, and that’s one where the government is going to file its brief at the end of September.
A few weeks later, Trump is going to issue his opposition. And then about two weeks after that, the government has its reply brief. So it’s going to be sort of fully briefed by the end of October. And then, you know, there can be oral argument. There could be a hearing that was all sort of left to later decision. But that sort of the key scheduling that happened was that it’s going to be briefed in September and October, just like a normal court.
Mary McCord: That’s right. And just for those dates, government’s opening brief, September 26th, Donald Trump’s response and motion to dismiss based on presidential immunity due October 17th. Government’s reply and opposition due October 29th. So like you say, by the end of October, this will be ready for argument and for her to determine ultimately whether she needs any evidentiary hearing.
Andrew Weissmann: So one of the things that came up is this idea of, will we get a brief on the 26 publicly? In other words, will we be able to see what is filed? Because if you remember from our episode dealing with this issue, the government is not just going to address immunity with respect to the allegations in the superseding indictment, but also said it was going to talk about categories of evidence that they anticipate using at trial, because that’s obviously something that also could be subject to the immunity decision. So this gives them an opportunity to really flesh out what they’re anticipating proving at trial. It may not be by names of witnesses, but they’ll be certainly based by category.
Mary McCord: Well, to be clear though, in their representation to the court during the status conference last week, the government attorney made clear that the brief would include things like you said, both in and outside of the indictment and would have a substantial number of exhibits. What he said was those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, which are the FBI equivalent of an interview transcript, documentary exhibits, things of that nature, things that would allow the court to consider both the circumstances and the content form and context, all in the words of the Supreme Court that the court needs to have in order to make its determinations. So if these are grand jury transcripts and interview transcripts, I think we will see the names of the people because to be redacted, I mean, if it’s public, if they’re public.
Andrew Weissmann: Yeah.
Mary McCord: So —
Andrew Weissmann: I’m not sure that’s right.
Mary McCord: — the judge will, let’s put it that way.
Andrew Weissmann: Yeah, exactly. I think the judge will. What I was getting at is —
Mary McCord: Your issue was what’s going to be public. Got it.
Andrew Weissmann: Exactly. So I think, you know, this is great. We’re on the same page. And just so everyone fills in what’s going on in Mary and my head, what both of us are thinking about is the difference between a public filing where we see all of that detail as opposed to something that would be redacted. So the judge sees everything, but the public doesn’t. And I’m thinking at least with respect to certain names of certain witnesses, I think the government’s going to be concerned about keeping faith with the position that they’ve taken before Judge Cannon, before other courts, about the concern about names of certain witnesses not being put out there into the public because of fear of retaliation and harm and undue opprobrium. Which, by the way, even when I used to do big high profile matters and you weren’t really as concerned about violence was a concern. So here you could have —
Mary McCord: I would note the protective order is still in effect though.
Andrew Weissmann: Exactly. So I think that we will get on the first filing, which is on the 26th, we certainly are going to get a substantial amount of information, but we may not get all of the names. If we don’t, I think there’ll be a lot of guessing as to, in the same way that we’ve talked about who the unindicted co-conspirators are in the superseding indictment. And when we get to talk about the Russia stuff in segment three today, there’s a lot of discussion about who those people are because people kind of fill that out. But in any event, I think that we’ll get a lot of information.
Mary McCord: One thing that’s interesting, though, is that particular issue did not come up during the hearing, the issue of whether any part of the exhibits would be filed under seal or redacted. That is not something that was discussed and it’s not something in the order. The court’s order with the schedule did not say you shall file first under seal and then redact and make public what can be made public or anything like that. So this would be on the government’s motion, I think, if they were going to try to keep some of this out of the public view. We certainly know that Mr. Trump’s attorney, I think wants these exhibits out of the public view, and we can get to his argument in a moment. But just to go back to the point I made very briefly about the protective order —
Andrew Weissmann: Right.
Mary McCord: — listeners will recall that way back before this case ever sort of went up through the Court of Appeals into the Supreme Court on the issue of immunity, there had been —
Andrew Weissmann: That would be the Pleistocene years because it’s so long ago that that happened.
Mary McCord: There had been a lot of debate and actually litigation and appeal about what has been called the gag order, right, which I would also refer to as a protective order, which limits the kind of comments that at least Mr. Trump can make and limits any contact with witnesses and things like that about things related to the subject matter of the case. That, of course, though, doesn’t prevent other people, not Mr. Trump, from attacking these witnesses and so on and so forth. So there still is a safety issue there, for sure.
Andrew Weissmann: And under the protective order, the government can designate material as sensitive.
Mary McCord: Right.
Andrew Weissmann: And there’s ways then for either party or even the media to challenge whether it should be kept private or not. So we’re very focused on just how much information. Obviously, on the 26th, we’ll have a good idea of exactly what we get.
Mary McCord: Yes.
Andrew Weissmann: I thought, Mary, one thing that might be useful to talk about, because as you noted at the outset, we’re going to be comparing. It was remarkable because we had two very eminent judges made public statements that are pretty different in terms of the cases in front of them. Because Judge Chutkan, at the oral argument of this, was very pointed about saying that the presidential calendar and the election was just not something that she was going to consider.
There was one striking exchange with Trump defense council where defense counsel said, you know, we’re talking here about the presidency. And Judge Chutkan said, you may be talking about the presidency. I’m talking about a four count indictment. And I’m just going to focus on what’s in front of me, and I’m going to go forward, and I’m going to schedule the way I would normally schedule. And you know, whatever happens outside of that happens outside of it.
Mary McCord: I think it is important to do this compare and contrast, but I think we should also talk a little bit about the lead up to that exchange that Judge Chutkan had with Mr. Lauro, who was Trump’s attorney. Because again, coming into this, and we knew some of this based on the filing, but coming into this, Jack Smith’s team wanted to, you know, brief up the immunity issues, happy to brief up other issues at the same time, but they felt like the Supreme Court had given them a directive to deal with immunity at the outset. Mr. Lauro came in pretty hot right off the beginning saying it’s enormously prejudicial to President Trump. He said, I can’t imagine a more unfair protocol for proceeding than having the government lay out evidence even without a witness, but lay out evidence at this sensitive time.
And he makes what he calls a legal argument that there’s no reason to do any of that because we’re going to win on just the communications with the vice president being official acts, being immune because the government will not be able to rebut the presumption of immunity for these conversations, which the Supreme Court did say are within the outer perimeter of official acts, but did say they could go back to trial judge to determine if the government could rebut the presumption that this should be immune by showing that there would be no danger to the authority of the president by going ahead and using these types of official acts in an indictment.
So. Mr. Lauro’s argument is we don’t need to get to any of this government laying out its evidence or anything like that. It would be hugely prejudicial to Mr. Trump and we’re going to win on the vice presidential communications. And he actually goes so far as to say that would tank the whole indictment that the government can’t rebut the presumption. And because the grand jury heard evidence about communications with the vice president, the whole entire indictment has to be thrown out.
Andrew Weissmann: Can I underscore one statement that you made, which is at this sensitive time?
Mary McCord: Exactly. That’s where I was just going to jump to.
Andrew Weissmann: Yeah.
Mary McCord: So that’s the backdrop to this discussion about the timing. And Mr. Lauro says, well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history. And the court transcript, the judge says, ah. And I can just imagine Judge Chutkan thinking, now we are to the heart of your objection, Mr. Lauro. And he goes on, which we can’t ignore, that they’re able to, speaking about Jack Smith’s team, basically load up on what they think this case is about without our ability to meet those factual assertions with the right to cross-examine.
So ultimately, he says, if this case is not thrown out on legal grounds, we want to have a full-blown hearing where we can cross-examine, but not now, not until, as she says later, you want to do this in like 2025, next summer. But this is what gets them to the point of discussion. The court actually says, let’s just discuss what the sensitive time is. I understand there’s an election impending, and I’ve said before, and I say again, that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here.
This court is not concerned with the electoral schedule. Yes, there’s an election coming, but the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to what the election is, that’s nothing I’m going to consider.
Andrew Weissmann: So one thing I think is really useful for people to understand is neither the court nor the government were racing to have this so-called mini trial before the general election. We talked about the schedule that was set. It’s not going to be fully briefed until the end of October. It’s not totally clear how much will be made public in those filings. That remains to be seen. But there’s no way that there is going to be a hearing, a factual hearing before the general election.
Mary McCord: That’s right.
Andrew Weissmann: So the court wasn’t pushing for that nor was the government —
Mary McCord: That’s right.
Andrew Weissmann: — pushing for that. And so just so the sort of idea that the government was sitting there going, I want to have a factual hearing with these witnesses because I’m trying to get this done before the general election did not come up —
Mary McCord: Did not happen.
Andrew Weissmann: — and was not the Department of Justice’s view. Indeed, I always like to point out that Judge Chutkan, with respect to one of the Trump motions that he wants to make, which has to do with challenging Jack Smith’s appointment, she said, you know, wasn’t that a merits motion that was supposed to have been filed months and months and months ago, and you missed the date, and she excused it. And she said, you know what, I’m still going to let you go forward and make that motion, even though it’s not timely at this point. And nor did the government say that.
Mary McCord: Well, with the caveat, I need to interrupt there because she did not say you can straight up file your motion to dismiss on the grounds that Jack Smith was unlawfully appointed, the same issue that Judge Cannon rolled on. She said, isn’t it untimely? Couldn’t you have filed this a year ago?
Andrew Weissmann: Yes.
Mary McCord: But then she says, I will let you file a motion for leave —
Andrew Weissmann: Yes.
Mary McCord: — to file a motion to dismiss, which is not the motion to dismiss.
Andrew Weissmann: True.
Mary McCord: It’s a motion to ask the court to allow you to file the motion to dismiss and explain why you’re doing this so late. And she could deny that leave.
Andrew Weissmann: She could.
Mary McCord: She probably won’t —
Andrew Weissmann: Right.
Mary McCord: — but she could. The point is she didn’t just say, fine, go ahead, file the motion.
Andrew Weissmann: Yeah, yeah, yeah.
Mary McCord: I’m splitting hairs here.
Andrew Weissmann: Yeah. So one thing that I thought was interesting that I think may have surprised you, it certainly surprised me. We talked last time about how the government said, hey, we’re ready to go immediately and file our brief.
Mary McCord: Yeah.
Andrew Weissmann: And so that came up because you and I thought, oh, they must have written it, we would have written it and —
Mary McCord: Yeah.
Andrew Weissmann: — they’re ready to go. Well, so Judge Chutkan says, so when can you file? And they said, well, we need two, well, maybe three weeks.
Mary McCord: Right.
Andrew Weissmann: So, I have to say —
Mary McCord: I was a little surprised. I was.
Andrew Weissmann: I was surprised. I was just like, what? Like three weeks? I really felt like, Michael, thinking Michael Dreeben who is —
Mary McCord: Yeah.
Andrew Weissmann: — in charge of the legal process. I was like, really? Three weeks?
Mary McCord: It’s funny too, because first he said, well, we have to write it. And then he says, well, we have started writing it, but we have to finish writing it. And yeah, no, I thought, oh, well, you and I got that wrong. Okay.
Andrew Weissmann: I know.
Mary McCord: We’re not perfect. We’re not prescient. We try.
Andrew Weissmann: Yeah. But I have to say, I actually thought if you’re going to represent to the court that you’re ready to go, that’s not exactly three weeks. I was surprised. Anyway, that is such a good segue to turning to coming up north —
Mary McCord: Manhattan.
Andrew Weissmann: — to Manhattan to talk about what Judge Merchan did with respect to not just the sentencing, but also the immunity motion that is before him. And —
Mary McCord: That is fully briefed.
Andrew Weissmann: Exactly. And so we’ll talk about that after the break.
Mary McCord: Sounds good.
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Mary McCord: So welcome back. Meanwhile, in Manhattan, it was sort of an emergency request that Judge Merchan put off everything. As you’ll recall, he had already put off ruling on immunity, I guess once, from the dates originally scheduled, both the decision on the immunity motion and the sentencing, and now he was asked to put everything off until after the election, and he agreed to do so. He did so in a letter to counsel, which is one of these interesting things about state court. Very few things are done in federal court by letter, but in state court it seems a little bit more common. And he pointed out that in particular that Alvin Bragg, the district attorney, had not really opposed things being delayed and had even made some statements in his own filing that the court at least took to support or suggest reasons why the court itself might want to decide to delay both the ruling and the sentencing.
And so the court then determined, and this is where I want to get your take, Andrew, that in accordance with certain of the grounds submitted by the defendant and the reasons for adjournment provided by the people, that is by the district attorney, coupled with and here’s how he phrases it, the unique timeframe this matter currently finds itself in, the decision on, and it’s called a the 330.3 motion. That’s the motion on immunity, to reverse the verdict of the jurors on the grounds of immunity.
And the imposition of sentence will be adjourned to avoid any appearance, however unwarranted, that the proceeding has been affected by or seeks to affect the approaching presidential election in which the defendant is a candidate. That’s the substance of the court’s ruling in this couple of page letter. And then he sets new dates. He says he will rule on the motion to set aside the jury verdict and dismiss the indictment on November 12th. And sentencing on the matter, if necessary, will be November 26th. So obviously after the election. So Andrew, that is a different approach than Judge Chutkan saying, I’m not going to be affected by the election schedule. What’s your take on all of this?
Andrew Weissmann: Just so people understand the dates and because I’ve been on air trying to explain this and I think people are sort of missing a lot about what’s going on because everyone just seems to forget about the fact that there was a pending and there still is a pending immunity decision and just says, wait —
Mary McCord: Sentencing, right.
Andrew Weissmann: — how do we put off the sentencing as if, wait, the sentencing was gonna happen on the 18th. Now it’s not gonna happen until over two months later, November 26th. But the second part, which Mary, you focused on, which was that there was an immunity decision that he said he was going to issue on September 16th. That’s now put off until November 12. And I think it’s to understand what he’s doing, you have to understand the immunity decision —
Mary McCord: Right.
Andrew Weissmann: — that is in front of him. And the way I look at this is, and I’m not trying to say that this is intent, but it is the effect of what he has done. There was a lot of skirmishing because of the fact that the immunity decision, as we talked about, was coming only two days before the scheduled sentencing date. And if you remember, Donald Trump had made a motion to essentially have an increased gap.
Mary McCord: Yup.
Andrew Weissmann: So he said, I have appellate rights. The state had basically said it had sort of not conceded it, but said —
Mary McCord: They didn’t push back. Right.
Andrew Weissmann: — sort of suggested that might be right. And you and I had talked about how this is a novel issue. It’s not clear whether there are those appellate rights. And it certainly is the kind of thing that an appellate court would weigh in on about whether there was appellate rights. So there was this concern. And then while this motion before Judge Merchan was pending, Donald Trump went to federal court to try and remove the case again, which we talked about, to Judge Hellerstein, and to seek leave to do that.
Mary McCord: Speaking of seeking leave —
Andrew Weissmann: And Judge Hellerstein —
Mary McCord: — kind of like what we were just talking about.
Andrew Weissmann: Exactly. And so we talked about how it was defective, but then Judge Hellerstein ruled on that he’s not going to give them leave, and now Donald Trump has appealed that to the Second Circuit, again, sort of focusing on this time period. But I think the key to understanding what Judge Merchan is doing is that I do think he is thinking about the electoral campaign and the general election. And the reason I say that is he didn’t have to put off the immunity decision.
Yes, you could decide I’m going to put off the sentencing. I’m not saying it’s the right thing or wrong thing, but like that’s something where he can say as he has, you know what? I want to make sure that people don’t view this whatever sentence I impose, they don’t view it if it’s a favorable to Donald Trump, they don’t view it for the election. If it’s unfavorable, that’s not, so I’m gonna put it off. But he didn’t have to move the immunity decision. He didn’t say that he couldn’t decide it and he needed more time. Note to self, by the way, I’m always sort of interested that he isn’t asking for and no one has talked about a hearing.
Mary McCord: Yeah.
Andrew Weissmann: Because I can imagine actually why you might want to hear from certain witnesses on this. I’m not saying before the election or after the election. It’s sort of surprising to me that hasn’t come up, but that’s an aside.
Mary McCord: Yep.
Andrew Weissmann: So I think by moving the immunity decision until after the election, he has in effect made it very difficult for an appellate court up to and including the Supreme Court to reach into this case —
Mary McCord: Right.
Andrew Weissmann: — because he’s not giving them anything —
Mary McCord: There’s nothing to appeal.
Andrew Weissmann: — to reverse. Right.
Mary McCord: That’s right.
Andrew Weissmann: Exactly. So I guess the key is I, like you, Mary, both of us were very skeptical that the sentencing on the 18th —
Mary McCord: Right.
Andrew Weissmann: — would go forward. And in part because —
Mary McCord: That’s right.
Andrew Weissmann: — of this immunity decision, if it was decided on the 16th, there would need to be some time for that to be heard on appeal or at least the issue of whether it could be heard on appeal coming forward.
Mary McCord: And notably, appeal could be both ways. I mean, if a decision went for Mr. Trump, it could have been Alvin Bragg appealing.
Andrew Weissmann: Yeah, absolutely. And so this basically means that at the time of the general election, there is this conviction that stands, there’s going to be litigation about it. Also, if that litigation is unsuccessful for Donald Trump, there will be a sentencing on it. I think the sentencing is a lot cleaner if you know whether he is president or not president because I think in terms of how a court’s going to think about that, in terms of whether he can serve immediately, whether he’s just like a normal citizen and not the president, I think it’s something that you don’t have to think about, oh, let me think about what the options are.
Mary McCord: That’s right.
Andrew Weissmann: We’ll actually know, presumably at the time, knock on wood.
Mary McCord: Well, that’s true. It’s going to take a little time —
Andrew Weissmann: Right.
Mary McCord: — to count these ballots.
Andrew Weissmann: Yes. Right.
Mary McCord: But still, November 26th —
Andrew Weissmann: Right.
Mary McCord: — that’s, you know.
Andrew Weissmann: I mean, absent conspiracy theories, we should know. So I really think that this had the effect of keeping a political Supreme Court out of the process pre-election. Because you could imagine a situation, just thinking through this, where the Supreme Court reached in and said, this is a case that needs to have a retrial because it was unfair to the president and or throwing out the indictment, which as you pointed out is one of the things that Donald Trump seeks because he thinks that even the grand jury process has been tainted. And so this sort of removes all of that one way or the other. The Supreme Court was going to weigh it and say, there’s no issue. It’s valid. I mean, well, basically it just says we’re keeping the status quo until after the general election.
Mary McCord: That’s right. And this is where I would really contrast status of both cases and I’d say that somewhat explains the difference between Judge Merchan and Judge Chutkan.
Andrew Weissmann: Completely.
Mary McCord: Judge Merchan, this is a case that has already been tried. We already have jury verdicts. He recognizes as we’ve just been discussing and you laid out so well, Andrew, like sentencing and especially where the D.A. is not pushing to move forward more quickly on sentencing. Sentencing of someone who is the presidential nominee just, you know, a short period before the election. I can totally understand why a judge would say warranted or not, and he says, you know, it would be unwarranted here, but I don’t want to do anything that could be perceived as being affected by or seeking to affect the presidential election. A sentencing could do that.
Judge Chutkan is in a very different place in her case. This case is still very much in the pretrial proceedings. We’re not even to the sort of final pretrial proceedings before trial. We’re still in the preliminary motions to dismiss type of proceedings. It’s a case that’s been delayed because of the interlocutory appeals. And it’s one where, you know, there’s no action she’s going to be taking that would have that same kind of impact on the election.
She’s ruling on legal issues that the Supreme Court told her to rule on at the outset. There was nothing in their opinion, by the way, that suggested. And you know, because of all this great deference we’re giving to the president or a president, including a former president, this should all probably be put off. There’s nothing in the Supreme Court’s decision that suggests any of that. This is being remanded for you to make these decisions at the outset.
So I think they’re just in a very, very different posture and she’s been clear since even before the appeals, you know, she is not going to be considering the campaign schedule, the election schedule. He is a defendant in her courtroom as you indicated earlier. What she’s got in front of her is a four count indictment returned by a grand jury and he needs to be treated respectfully given the constitutional rights that all defendants are afforded, but not preferential treatment because of his status. And so I actually think they’re very explainable and not in conflict with each other. I think they’re just in very different times in their cases.
Andrew Weissmann: I think that’s right. I do want to point out the Trump argument before Judge Chutkan is, I mean, I basically completely agree with you. And it’s a way of understanding it. You can have very different views about whether you’re supposed to consider the general election or not, depending on the circumstances of the case. The Trump lawyers argument was that a filing with additional material that goes into additional evidence would have that prejudicial effect. But as we’ve spent a lot of time talking about it, it remains to be seen just how much of that would be public. And it’s also a very different thing than a public sentencing —
Mary McCord: That’s right.
Andrew Weissmann: — with a pronouncement by a court of what they think the severity or lack of severity is of the crime. In other words, just to be clear, the sentencing could be one that people who think that Donald Trump should go to jail and serve lots of time could be disappointed with. Conversely, people who think that it was all unjust and, you know, could be very upset because he’s sent to jail. I mean, it can cut both ways. And so it is a matter of very different degrees. But I just want to make sure people understand that Donald Trump’s counsel tried to fit into that mode when he was saying, but here is some evidence that could come out and that would have an effect on the election.
So with that, should we turn to a topic that I know you and I, we’re going to reminisce about? And I think the issue here for both of us and everyone who’s listening can sort of assess how well Mary and I do because this for me, it goes back to the Mueller investigation and looking at Russian interference. Mary, you were the head of the National Security Division. So this is really dear to our heart. So the key issue here is how much we’re going to be able —
Mary McCord: Yes.
Andrew Weissmann: — to remain focused and get through this. We are going to have a longer episode to go through a lot of what DOJ —
Mary McCord: Yes.
Andrew Weissmann: — and other agencies did last week, Treasury, State Department.
Mary McCord: That’s right.
Andrew Weissmann: But as you can see —
Mary McCord: Yeah.
Andrew Weissmann: — I’m already —
Mary McCord: We’re just trying to get to break.
Andrew Weissmann: — going way over.
Mary McCord: — and we’re like, let’s keep talking about it. Okay.
Andrew Weissmann: Exactly. So let’s go to break.
Mary McCord: Okay, let’s do that.
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Andrew Weissmann: Welcome back. Okay, Mary, I’m going to try to not be triggered and be calm and organized. Last week was a very, very busy week for your former colleagues at the National Security Division, but also, as I mentioned, for the State Department and the Treasury Department for lots of activity. And lots of it is in black and white so that people can read lots about this because I know, of course, Donald Trump is out there saying all of this is fanciful, but it’s very, very concrete.
But why don’t we start with what are the key things that you think people should take away from? What were the various activities that happened last week, both within the Department of Justice and outside of the department?
Mary McCord: Yeah, to the extent people are saying, wait, this is a podcast about prosecuting Donald Trump. What is the relevance here? I mean, the relevance, frankly, is that this Russian influence on our elections, this isn’t new this year. We can go back to 2016. Russia, are you listening? The Mueller investigation because of this criminal investigation into whether Russia was improperly influencing the election and whether others, including in the United States and including, frankly, former President Trump, were involved in any type of conspiracy regarding that and so many other things. And that quote there, Russia, are you listening?
That’s from Donald Trump when he was campaigning into 2016, calling on Russia to find the lost e-mails of his opponent, Hillary Clinton. So we’re going back in time and when we do our episode, we’ll deep dive back in time. But what happened last week? Well, a number of different things. One, I think has been kind of lost on people because they don’t really understand this wasn’t an indictment. But a major thing to me was the seizure of 32 different internet domains that had been used by the Russian government and Russian government sponsored actors to engage in a foreign malign influence campaign. And I love this.
They call it, you know how investigations at DOJ and FBI have code names. And this is called Doppelganger, which I think is brilliant because at the heart of this seizure of these internet domains is the fact that the Russian government and these Russian entities were using these domains as cyber squatted domains. That means they gave them names that looked like legitimate news sites, washingtonpost.pm, I think, as opposed to washingtonpost.com.
Andrew Weissmann: Yes.
Mary McCord: And other similar reputable, you know, websites that they just changed those last two letters so that it’s not.com, but could be very confusing to people. So they called it cyber squatted. And the point here, what they were doing is they were then channeling people through different social media posts and other direct advertising to these cyber squatted domains, which were pushing out all kinds of false information, misinformation designed in particular to influence this election. And what’s so fascinating is taking a look at the exhibits to this lengthy affidavit in support of the seizure and seeing in incredible detail the efforts to use these sites to influence the election.
In fact, these exhibits show what was sort of the goal of these various operations, the goal of these cyber squatted domains, including, and this is a direct quote, to secure victory of a U.S. political party, A candidate. Candidate A, or one of his internal party opponents at the U.S. presidential elections to be held in November of 2024, and to bring candidate B confidence rating down. And to target swing states, et cetera. But now, of course, I’m getting into details.
Andrew Weissmann: Yeah. So in addition, because we’re going to go back down —
Mary McCord: That’s right.
Andrew Weissmann: — into those details, but one really terrific thing was a very proactive effort to take down domain names. There also was what I will call sort of a active measures indictment —
Mary McCord: Yes.
Andrew Weissmann: — but it’s like active measures 2.0.
Mary McCord: This reminded me so much of the indictment that you and your team brought.
Andrew Weissmann: So active measures was the sort of nickname that we had for a Russian indictment brought by the Mueller team for a Russian team located in St. Petersburg that was disseminating information that was false to promote Donald Trump’s candidacy, denigrate Hillary Clinton. During the primary, it was to promote Trump over his rivals to denigrate Hillary Clinton and to promote her rivals like Bernie Sanders. So very, very targeted about defeating her and promoting him. And it was using Russians, but also unwitting Americans.
Mary McCord: Right.
Andrew Weissmann: This is version 2.0, fast forward from 2016 to 2024. They learned. And they learned how to be more effective —
Mary McCord: That’s right.
Andrew Weissmann: — which was using still a very small amount of money. The allegation is about $10 million —
Mary McCord: $10 million.
Andrew Weissmann: — to get people who are established influencers. And they were actually paid quite a lot. They were —
Mary McCord: They were.
Andrew Weissmann: — it was like to do one video, they would pay–
Mary McCord: Like $100,000. Yeah.
Andrew Weissmann: Exactly. $100,000 for a YouTube video. Mary, we should be —
Mary McCord: Yeah, exactly.
Andrew Weissmann: — asking for a lot more so —
Mary McCord: Maybe we should start doing videos. Okay.
Andrew Weissmann: Yeah. And another person is paid $400,000 a month. And these are established known influencers who are now going to essentially be on the payroll of Russia, whether witting or unwitting. The people who have been doing this have gone on record saying that they did not know. Just to be clear, I’m not saying they did or didn’t. They are saying they didn’t know. There is some record evidence that suggests that they certainly knew about the Russia component, but let’s leave that aside —
Mary McCord: Right.
Andrew Weissmann: — that they’re saying they didn’t. But in any event, whether they knew or not, their question is, Russia is doing this, and they did it in a way that was more likely to be disseminated to a larger audience. And so that was sort of a separate piece where there were two people indicted for that who were participating in this. There were also, just to give a quick overview, sanctions that were put in place by the State Department. There was a reward put in place of $10 million for information about Russian interference and hacking. There was an indictment of people working with people who are on the sanctions list.
Mary McCord: Right.
Andrew Weissmann: And that was a separate indictment of Mr. Simes and Mr. Simes’ spouse. So a whole series of actions and I just wanted to make two comments that are on the wave tops. One is that in 2016, the government and the Obama administration was criticized for not taking action when they knew that Russian interference was going on because they were afraid of it being viewed as political and weighing in favor of one candidate or the other. And they were criticized because it wasn’t protecting the electorate. And to be clear, the issue of Russia interference is an apolitical issue that you would think Democrats and Republicans would both get behind. And in fact, the issue of whether Russia did this, it’s beyond peradventure.
Mary McCord: Oh, yes.
Andrew Weissmann: It happened. And there is a Senate report on it that is bipartisan.
Mary McCord: Yes.
Andrew Weissmann: People like Marco Rubio signing off on it. It is in black and white by Republicans and Democrats. The issue that became politicized was whether Donald Trump or his campaign were in cahoots with it.
Mary McCord: That’s right.
Andrew Weissmann: But that’s a very separate issue. And Donald Trump, because he wanted to say, I won without this interference, was trying to politicize the fact of the interference. But whether it’s Russia or China or Iran, and whether they’re helping Democrats or Republicans should be an apolitical issue. And then the second thing is the goals here are really similar to 2016 because it still is very much a pro-Trump effort. But when you read the underlying documents, and again, I’m not going to go down deep. It’s all about the Ukraine war.
And that is the linchpin for when you read sort of what people were saying and doing in Russia and why they were doing it. It all came down to undermining our American faith in Ukraine and spending the money for it. And the promotion of Donald Trump over at the time, Joe Biden, was because of the war. Everything was focused on that. It wasn’t sort of a love of Donald Trump qua Donald Trump because of policy issues. It was because he was going to end the war in Ukraine in a way that was favorable to Russia.
Mary McCord: Yes, absolutely. And I think the other key point and part of the reason I really wanted to talk about this today is that this happened in 2016 too, although I would agree that, you know, it’s more sophisticated now. This whole scheme, in its various permutations, many of them are about getting Americans to do this to each other, right? Using Americans, creating personas that look like Americans talking about our policy toward Ukraine or toward Russia, using Americans to sow racial division.
And I would point up that again, in one of the exhibits to the doppelganger seizure, one of the campaigns, a guerrilla media campaign, was specifically designed to increase the polarization of Americans. It talks about it is important that U.S. political party B that in that political party, they’re referring to the Democratic Party, are people of color and supporters of affirmative action and reverse discrimination, i.e. infringements on the rights of the white population of the United States.
While U.S. political party A, referring to the Republican Party, are the victims of discrimination by people of color. And the idea of this campaign is to capitalize on what they’re perceiving as this division between the parties, race-based division, and stoke that type of thing by having topics that talk about things like the risk of job loss for white Americans if a Democrat wins, that there will be privileges, and I’m reading from the document, for people of color, perverts, and disabled. Those are the things that they’re wanting to get Americans to be talking about by seeding this into the internet, seeding it into the platforms where people have this kind of discourse and debate and really drive that polarization.
So these are things that, like you said, should be apolitical, that we should all be offended that a foreign government would want to manipulate us in that way. We have our own ability to, you know, consume information, make decisions for ourselves about our politics and our choices for president and other elected offices in this country. And we should be doing that without that kind of interference.
Andrew Weissmann: And we’ll do more on that because there’s a lot of discussion about having that targeting focus on battleground states.
Mary McCord: That’s right.
Andrew Weissmann: And then specifically on certain communities.
Mary McCord: Yes.
Andrew Weissmann: The Hispanic community is specifically targeted. American Jews are specifically targeted. But just to pull back that everything you said, Mary, is totally right, but it’s in the service of the Russian war effort.
Mary McCord: Oh, that’s right.
Andrew Weissmann: I mean, the idea is all of this goes to —
Mary McCord: Their ultimate goal.
Andrew Weissmann: The ultimate goal is if Donald Trump wins, it will help the war effort. And if the Democrats win, at the time that this was going on, they were focused on Joe Biden, it would equally be true of Kamala Harris, that you’d have a strong NATO and you have strong support of Ukraine. So it’s all very focused on that win. And so from a Putin war effort, this is just the taking the war effort underground to the United States in a way that gets at critical military support for people who are listening who think about what is going on in Ukraine and the fight for democracy and in our lifetime, seeing, you know, true heroes. This is everything we’re talking about undermines the election, but is really targeting those people and the democratic values in that country.
Mary McCord: Yes. And just to bring it back where I talked about one of the things that Trump had said back in 2016, Russia, are you listening? And his refrain, this campaign has been to Putin, do whatever the hell you want, right? He has made that clear.
Andrew Weissmann: That’s a quote.
Mary McCord: That’s a quote.
Andrew Weissmann: Do whatever you want. Just to be clear, that is Mary quoting.
Mary McCord: So, you know, these are reasons for Putin and the Russian government to undertake this effort. And I think the extent and the depth of detail is something that every American should understand. And that’s why we’re going to devote a whole episode to it. I’m really looking forward to doing that.
Andrew Weissmann: Okay, Mary, this was really great because it was great going from some minutiae and the small bore of exactly what’s happening with scheduling, but connecting it up to larger big picture issues —
Mary McCord: Yep.
Andrew Weissmann: — that we’re facing as a country. I unfortunately think that what we’re dealing with in terms of foreign interference is going to be with us for good. And not just Russia, but other countries as well.
Mary McCord: Yes.
Andrew Weissmann: More on that as we go forward.
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Mary McCord: And don’t forget also to send us a question. You can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni.com.
This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Catherine Anderson, her last week with us. Thank you so much, Katherine.
Andrew Weissmann: Thank you.
Mary McCord: Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC audio and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.