Judge Chutkan is not allowing any grass grow under her feet after Trump’s DC election interference case was sent back to her courtroom. MSNBC legal analysts Andrew Weissmann and Mary McCord review her hearing schedule set to begin next week, and offer some detail on her denial of Trump’s motion to dismiss the case on selective and vindictive grounds. Then, the fallout from the Supreme Court’s immunity decision continues to echo, as Trump era DOJ official Jeffrey Clark is the latest to try for proceedings against him to be thrown out based on the High Court’s ruling. And lastly, a peek at Jenna Ellis’ cooperation in the Arizona elector case and some listener questions.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It is Tuesday morning, August 6. I’m Andrew Weissmann, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: You know, it’s starting to feel like every minute is a year. I mean, between like the legal news and the political news, it’s like —
Mary McCord: And the Olympics news.
Andrew Weissmann: The Olympics news. You know, I always forget how much I enjoy watching the Olympics.
Mary McCord: Oh, me too.
Andrew Weissmann: And it’s a really good distraction from the aforementioned legal and political news.
Mary McCord: Exactly, right. And actually, before we get to the show today, we do want to tell you about a new way to listen to our podcasts and to other original shows from MSNBC. It’s called MSNBC Premium. It’s a special subscription offering on Apple Podcasts. And when you subscribe, you’ll get new episodes of “Prosecuting Donald Trump” and all of MSNBC’s original podcasts like “How to Win” and “Why Is This Happening” ad free. So in other words, the existing podcasts that you can still get from your other platforms, you would get them without the ads. But then in addition to that, there will be some exclusive bonus content every month. You’ll also get new episodes of “Morning Joe” and “The Rachel Maddow Show” without ads.
Andrew Weissmann: But you can still get all of the —
Mary McCord: “Prosecuting Donald Trump” podcasts anyway.
Andrew Weissmann: Just with ads free.
Mary McCord: Yes, exactly.
Andrew Weissmann: Right. So we’re still going to be available. And speaking of that, we’re going to have a new bonus episode for premium subscribers. It’s coming out this Monday. And for the first offering, it is a colleague of yours now, Steve Vladeck.
Mary McCord: Yes.
Andrew Weissmann: He is a longtime professor, but now a new Georgetown law professor. So Steve is going to join Mary and me for a deep dive into a really interesting topic, which is President Biden’s proposed Supreme Court reforms.
Mary McCord: And you can subscribe to MSNBC Premium on Apple Podcasts right from your phone or whatever device you’re listening on right now, so you don’t miss anything. But let’s jump to today’s episode. Things are gearing back up. Listeners probably know that the Supreme Court remanded the January 6th related case back down to the D.C. Circuit on Friday, which immediately sent it back to Judge Chutkan. So we will talk about the next steps in that case. Boy, the fallout continues. We’ll talk about continued fallout of that immunity decision. Now we’ve got Jeffrey Clark asking for a dismissal of his bar disciplinary proceedings in D.C. as a result of that decision. And of course, we’ve got action on Capitol Hill with the introduction of the No Kings Act, really to respond directly to the immunity decision. And then finally, we will talk about some news that broke yesterday, an agreement to cooperate by Jenna Ellis with the state A.G. in Arizona in the case they are brought against fraudulent electors and those who supported them and facilitated that scheme. And we are really going to try to do a list of questions.
Andrew Weissmann: And, yes.
Mary McCord: That’s our goal.
Andrew Weissmann: We are getting to them.
Mary McCord: We’re going to do it.
Andrew Weissmann: You know, we were actually going over them before the show. And they’re really, really terrific.
Mary McCord: Yeah.
Andrew Weissmann: So we’re going to get through that agenda and then get to the listener questions. So let’s talk about, again, it’s more fallout from the Supreme Court immunity decision. But this is sort of direct fallout because the case is now back with Judge Chutkan. This is normal procedure where the baton goes back from when cases on appeal, it goes back to the district court. And here, Judge Chutkan really wasted no time. And there’s sort of two main things that she did. The first is scheduling. She issued an immediate scheduling order. And the first thing she did is she said she wants to hear from the parties jointly, if possible, in a submission where she said, please state any agreements. You can always put disagreements by this Friday as to what you think the way forward is. What do you think the next steps are? Should there be a hearing? Should there be briefing? What do you think the timing should be? So the parties are going to put something in by this Friday. Spoiler alert.
Mary McCord: Do you think there’ll be any disagreements? What do you think?
Andrew Weissmann: Yes. Spoiler alerts.
Mary McCord: I think they’re going to agree on everything.
Andrew Weissmann: Yeah. So spoiler alert. Donald Trump will be no long briefing —
Mary McCord: No. No. No.
Andrew Weissmann: — no hearing.
Mary McCord: Stay everything until after the election. I bet that’s what he’ll say.
Andrew Weissmann: This was from the man who said, you know, please set the trial for the year, you know, 20 —
Mary McCord: 2026.
Andrew Weissmann: Maybe I should say 2040.
Mary McCord: Yeah, that would be more likely.
Andrew Weissmann: Okay. So there’s that scheduling where she said, I want to hear from the parties this Friday. That is a filing that we all should be able to see. It should be filed on the docket. And then she said she wants to see the parties. The defendant does not have to be there, meaning Donald Trump does not have to be there for a scheduling conference to decide what should happen. And that is going to happen next Friday. So the two dates are August 9th and August 16th. So we’ll have some updates and presumably a decision on the 16th from Judge Chutkan as to how she wants to proceed, having heard from the parties. So that’s sort of step one. And step two is something we’re going to spend more time talking about. And I’ll turn it over to you in a second. Just the preview is that there was a pending motion that, actually a lot of pending motions, but there was a pending motion that Donald Trump had made that was for dismissal of the case for selective prosecution and vindictive prosecution. They’re slightly different, different legal standards, but they’re similar in kind and generally one sort of goes with the other. And as you recall, during the stay period from December until last Friday, Judge Chutkan could not rule on anything.
Mary McCord: But she was clearly working.
Andrew Weissmann: Oh, yeah, she may have had it already, but on Friday she got the green light and she issued her 16-page decision denying Donald Trump’s selective and vindictive prosecution motion. So those are the big highlights of where we are. But obviously the big issue is going to be about the immunity case and what its import is in terms of the case going forward.
Mary McCord: Yeah, absolutely. And I do want to bring people back because, you know, this case was stayed for a long time, right? Well, actually, before the Supreme Court even took it, it was stayed during the D.C. Circuit appeal. And so it’s been stayed for a very long time. Obviously, she was taking motions that had already been briefed and obviously had her a written and ready to go as soon as she got the case back, which is the opinion you’re talking about. But just for listeners to remember, there were a whole slew of motions to dismiss. And I went through all of them yesterday to make sure there’s now nothing outstanding. And the motion to dismiss on immunity grounds is obviously the one that generated the ultimate appeal to the U.S. Supreme Court. She had also denied at that same time when she denied the immunity motion or the motion to dismiss based on immunity. She had also denied a motion to dismiss based on constitutional grounds that Trump’s prosecution violated the First Amendment, violated the double jeopardy clause, violated due process. That was denied also and that is now done.
She also on Friday in that same short order where she set a schedule for the parties to propose the pre-trial proceedings going forward and also set a hearing, the same ones you just talked about, Andrew. In that short order, she also denied the motion to dismiss the indictment based on statutory grounds. And she denied that without prejudice for the defendant, Mr. Trump, to refile a renewed motion once all of the issues of immunity have been resolved. And what that meant, that motion on statutory grounds, which was the only other motion to dismiss that was still pending besides selective and vindictive prosecution, which she has now denied. That was the only other one that had remained pending and that was basically Donald Trump saying these allegations against me and the indictment are not covered by the statutes that the prosecution is relying upon to charge me. They’re just not within what these statutes covered and so this should all be dismissed.
Now, I think it’s interesting, and you’ll see again, this is about immunity fallout. She’s saying I’m denying that right now, but you can renew it after we make decisions about what are official acts for which you can’t be prosecuted or official acts for which the government has or hasn’t rebutted a presumption of immunity from prosecution, what are unofficial acts for which you can be prosecuted, and are those still things that would be covered by the statutes. The conspiracy under Title 18 of the U.S. Code, Section 371, the obstruction and conspiracy to obstruct official proceedings and ultimately the conspiracy to violate civil rights. So that’s why that is open to being re-brought after all the decisions about immunity.
Andrew Weissmann: Yeah. And there is also the Fischer case that we talked about. Essentially, the judge is saying, let me see what remains and after everyone’s been heard and we have a hearing and there’s no reason to decide something in the abstract.
Mary McCord: The Fischer case being the Supreme Court case about obstruction of an official proceeding, which, as we’ve talked about before, we think will apply very differently when we’re talking about Mr. Trump —
Andrew Weissmann: Yeah.
Mary McCord: — because it applies to things that are well beyond any violent assault on the Capitol and include the fraudulent elector scheme, for example.
Andrew Weissmann: So I wanted to take just a couple of minutes just to explain what selective and vindictive prosecution means just in the big picture, not getting too in the weeds just because it’s the kind of thing, Mary, you and I know so well from litigating these matters. So selective prosecution, it is required for the defendant to show that somebody similarly situated to the defendant was not prosecuted. That’s sort of step one. And again, there’s lots of nuance to that. But the second part is that the decision to prosecute this person was done with a discriminatory reason, so like based on race or assertion of constitutional right, something like that. It is a very, very hard standard to meet. And then let me just talk about vindictive prosecution, because it’s a very related concept. Vindictive prosecution is when the government is alleged and then shown to have taken action against a defendant because of their assertion of a right. So where it comes up at times is somebody is charged with crimes A and B and the defendant makes motions, appeals and maybe win something, maybe doesn’t win. And then after the appeal, there’s more charges brought, and the defendant can say, wait a second, you’re retaliating for just my litigating.
Mary McCord: Well, try having a due process right to do.
Andrew Weissmann: Exactly.
Mary McCord: Constitutional right.
Andrew Weissmann: And as you can imagine, the courts say the government can’t do that. But there are many legitimate reasons why you might bring those new charges, because you might have continued the investigation, for instance, and found new evidence. So again, it’s a hard thing to show. And I had just two quick thoughts on that one sort of in the weeds with respect to this judge and one about Judge Cannon. So Judge Chutkan said there just is no showing, no evidence whatsoever with respect to either of those claims that Donald Trump is not similarly situated to anyone who has not been prosecuted, leaving aside that there was no showing of discriminatory purpose or animus whatsoever and goes through the timeline here. And in many ways, when you look for a similarly situated person, you can look for all sorts of factors, including leadership position. So clearly thinking of all of the hundreds of January 6 people who attacked the Capitol and the charges here, which she has to accept as true for the purposes of the motion of his role sort of at the top of that conspiracy. So it’s quite devastating. And she also takes to task the effort by Donald Trump to reframe the indictment as simply charging him for bringing legal actions questioning the validity of the 2020 election. She said that’s not at all what’s charged. In fact, it’s explicitly stated that is not what is being charged. It is joining a criminal conspiracy to do that.
Mary McCord: I think in many ways, that’s what’s the most remarkable about her opinion, because honestly, the claims of selective and vindictive prosecution were such a stretch by Mr. Trump and his team. And on the vindictive side, essentially, they were relying on one or two statements made by President Biden about seeking accountability and that kind of thing and hoping there would be accountability for Mr. Trump that, you know, is really what was driving their claim and that’s just not anywhere close to proving even the predicate to get discovery or further hearings, because they wanted a hearing as well on this claim of vindictive prosecution. But she starts right on page two, saying at the outset, court must address, as it has before, defendants improper reframing of the allegations against him. And she says he declares that the indictment amounts only to a government theory that it is illegal to dispute the outcome of an election and work with others to propose alternate electors. And then she says that description mischaracterizes his alleged conduct. Defendant is charged with knowingly making false statements in furtherance of criminal conspiracies and for obstruction of election certification proceedings. And then she quotes from the indictment what you were referring to, Andrew —
Andrew Weissmann: Yeah.
Mary McCord: — which is actually when the indictment itself says defendant had a right, like every American, to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means. So she’s really just drawing that line right at the beginning. I’m not going to buy into your false narrative about this. I have to correct it because that’s not what’s charged.
Andrew Weissmann: Right. And one thing to note is she’s very careful. She’s not saying that’s what happened. She is not making a fact finding.
Mary McCord: That’s right.
Andrew Weissmann: She is taking the allegations in the indictment and saying your characterization, Donald Trump team, of what is charged is incorrect. But that’s very separate than her saying, and now I’ve had a hearing and I’m making a factual finding. I think that’s a good segue to the fact that this same motion was made before Judge Cannon. Judge Cannon ruled on a very similar motion made by Walt Nauta, a co-defendant in that Florida case, and said, as was obvious, that there is no selective or vindictive prosecution. But notably, Judge Cannon did not rule on Donald Trump’s —
Mary McCord: That’s right.
Andrew Weissmann: — motion, and she easily could have, but she didn’t, I think, want to give the public that sort of like that win to the government and have this public document saying, no, Donald Trump has not been selectively or vindictively prosecuted, which, by the way, is really clear. But it’s just notable to me that Judge Cannon took the time to decide that motion with respect to —
Mary McCord: For the co-defendant.
Andrew Weissmann: — a co-defendant.
Mary McCord: Right.
Andrew Weissmann: But not decide it for Donald Trump. And yet, as we’ve talked about, is the outlier judge, one out of nine who issues your decision on the first day of the RNC convention saying the case is dismissed. I mean, the confluence of facts is so bad for the rule of law. And it’s so bad for judges who’ve been appointed by Donald Trump, who are really good judges who are now tarred by that kind of conduct on her part. But anyway, you can tell that Judge Cannon —
Mary McCord: We’re getting triggered. We’re getting triggered.
Andrew Weissmann: Trigger Avenue.
Mary McCord: Okay.
Andrew Weissmann: Okay.
Mary McCord: So, this is a good time, I think, for us to take a break. And when we come back, we will get back into some of the continued fallout from that immunity decision.
Andrew Weissmann: Yeah, I actually find there’s like a really interesting tie between the selective prosecution arguments and claims that we just talked about and what we’re about to talk about involving Jeffrey Clark. It’s fascinating. I have a theory that I’m going to float and I want to hear, Mary, like what you think and why it’s wrong.
Mary McCord: All right.
Andrew Weissmann: Okay.
Mary McCord: Cliffhanger.
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Mary McCord: Welcome back. Before we get to Andrew leaving us hanging on a cliff to fall off, I got like one finger. I’m going to just frame up where we’re at with this Jeffrey Clark stuff. So Jeffrey Clark, of course, was at the Department of Justice. He was the person who Mr. Trump wanted to make and arguably did make his acting attorney general for a matter of hours right before January 6th, somebody that had been very willing to buy into Mr. Trump’s claims of election fraud and to pressure states to look into this. And in fact, Jeffrey Clark was at the Department of Justice proposing to send letters to state legislative officials and secretaries of state, particularly, for example, in Georgia, saying you should really be looking into this election fraud. We think there’s a basis for that, et cetera. This, though, is something people will recall from our extended discussion of the immunity decision, that the one thing that the Supreme Court decided that can’t really be re-reviewed down in the lower court, well, can’t be reviewed in lower court, is that with respect to Mr. Trump’s communications with his own Department of Justice officials, that’s within the scope of his official acts, and he is absolutely immune for prosecution based on any sort of pressure on DOJ to actually pressure others to investigate bogus claims of election fraud.
So, Mr. Clark, meanwhile, in addition to having been charged in Georgia, he also has faced disciplinary proceedings in the District of Columbia, where he has his bar license, right. And these are proceedings, and we’ve talked before about lawyers have to pass a bar in any state in which they practice and they are subject to disciplinary proceedings for violating the codes of professional responsibility and committing other ethical violations and certainly for committing crimes. There has been ongoing for some time now these disciplinary proceedings in D.C. before the Board on Professional Responsibility of the D.C. Bar. There was actually an evidentiary hearing or trial where people like other former DOJ officials, Richard Donohue, et cetera, testified. And the recommendation of the board was that Mr. Clark be suspended from the practice of law for two years. Now, he has a right to take that on appeal to the D.C. Court of Appeals, and he will do that and has done that. But in the meantime, before that appeal is fully briefed, he, like so many others, is trying to take advantage of that immunity decision and has filed a motion, not a motion. He’s filed a supplemental brief before the board saying these whole proceedings against me should be thrown out. This court has no jurisdiction.
And as the immunity decision makes clear, I can’t be disciplined based on my conversations with the president that are within the president’s official acts. And so this entire disciplinary proceeding should go away. He makes other arguments, too, based on another Supreme Court case that we haven’t even talked about on this podcast called Jarkesy, which has to do with in certain SEC civil enforcement proceedings, a defendant is titled to a jury trial as opposed to just a hearing before judges. So he makes an argument that he should have a jury trial as well. But we’re going to set that aside for now because that would take up way too much of this episode.
Andrew Weissmann: Yes.
Mary McCord: And the main thrust of this is, hey, me too, me too, me too. If Trump’s immune, I’m immune. And as we’ve said before, presidential immunity does not mean immunity for everyone else. But nevertheless, here he is making that argument. Okay, now got one little pinky holding on to the edge of the cliff, Andrew.
Andrew Weissmann: So let me just read some of what Jeffrey Clark says about the immunity decision because he quotes from this. And I think it’s useful because it really goes to the pernicious nature of the immunity decision. And it deals with the part of the decision that you said, Mary, where the court said that President Trump, when he’s dealing with his attorney general, those are core functions of the executive and that even if it’s related to conversations with the attorney general about sham investigations, which was the allegation and the indictment. So he cites this. He says, I’m quoting now, “the allegations against President Trump relating to his discussions with DOJ officials about whether to send the draft letter to Georgia officials and whether to replace the acting attorney general with Mr. Clark.” And now he quotes from the decision, the immunity decision, “plainly implicate Trump’s conclusive and preclusive authority,” unquote, because the executive branch has, and again, a quote, “exclusive authority and absolute discretion to decide which crimes to investigate and prosecuting.”
And here’s the key part. This is, again, in quotes, “including with respect to allegations of election crime.” And the Supreme Court also said that the president may discuss potential investigations and prosecutions. And here’s, again, the money quote, “with his attorney general and other Justice Department officials to carry out his constitutional duty.” So you see the problem, which is that although the court was deciding what the president can do when he’s dealing with underlings in the Department of Justice carrying out his orders, or at least arguably carrying them out, what is the level of immunity? Is it within the core functions? And also, how would you go about even using that evidence and proving it in court? Would you have to use official act evidence, which the court also said you can’t use? So Jeffrey Clark is saying that decision really protects him because he was just carrying out the president’s bidding here in terms of what he was doing.
Mary McCord: And I would say and I know you want to tie it, but I would say that also he’s essentially —
Andrew Weissmann: Yeah.
Mary McCord: — and I think this is one of the problems with the capacious language that the Supreme Court used in that opinion is because their rationale for not only immunity, but also the bar on using official acts evidence to prove unofficial acts is essentially that it would interfere with the independence of the executive branch and the carrying out of the president’s core constitutional authority. So that opens the door for underlings, not the president, to say the damage, the harm would be just the same.
Andrew Weissmann: The same.
Mary McCord: So I should get the benefit of the same immunity.
Andrew Weissmann: Right. And you would have to open the door to the kind of evidence that you don’t want to include. And just to make it clear, the allegation here is that Jeffrey Clark’s, the letter that was being sent was false.
Mary McCord: False.
Andrew Weissmann: That’s the allegation is that they wanted to just like the Ukraine first impeachment, Donald Trump wanted the specter of an investigation.
Mary McCord: Right.
Andrew Weissmann: He wanted the specter of an investigation about Georgia. He wanted the specter of an investigation about Joe Biden from the Ukraine authorities, even though there was no basis for it, as I think as the president said, like, just make the claim. I’ll take it from there.
Mary McCord: Right. And this is where the testimony of people like Richard Donohue, who was the acting deputy attorney general, Jeff Rosen, the acting attorney general at the time, you know, they’re saying we don’t have any evidence of election fraud significant enough to change the outcome. So it is false to put in a letter to state officials that we do.
Andrew Weissmann: Exactly. And I know most listeners are going, how can that possibly be part of the core function? But just to be clear, that is in the immunity decision. And so the quotes that Jeffrey Clark, you can’t fault him for taking the Supreme Court decision and saying, I want to apply it here. To me, the way I think this relates to what we were just talking about with respect to Judge Chutkan is something that I was really concerned about when I read the immunity decision, which is how is this not overruling the entire body of law about selective prosecution? Selective prosecution law is the court overseeing the Department of Justice with respect to how it is instituting and bringing cases. We just talked about —
Mary McCord: Yes.
Andrew Weissmann: — are they similarly situated people and are you acting improperly and in a discriminatory way? How is that whole body of law, which, by the way, just to be clear, the Supreme Court did not in its decision say it’s overruling. But how is it going to square the two? And one way to square it is to say, well, no, in this circumstance where you’re violating these sort of this separate constitutional provision. But if that’s the case, then the fact that you’re instituting a sham investigation of somebody, how is that not a violation of due process? But they said that it isn’t. So there’s a huge tension that I think the Jeff Clark motion gets at in terms of selective prosecution and how it’s going to survive, because even this Supreme Court, I don’t think is going to say we’re just getting rid of selective prosecution as a theory. I mean, their whole idea is that they are trying to denigrate the Department of Justice when they don’t like a prosecution. So it’s hard to see, though, theoretically how they’re going to deal with that problem. But I do think Jeffrey Clark, as much as I deplore what, assuming it’s proved and obviously the board found that he did do this and was reckless in the way he did it, but assuming that’s valid, you know what he did is so incredibly deplorable. But as a legal matter, he is right to raise this issue and it does point to a real tension and flaw in the Supreme Court decision. So anyway, Mary, that was my big picture.
Mary McCord: Yeah.
Andrew Weissmann: By the way, one of the reasons I’m going on and on and on about this is I’m waiting for you to tell me. No, no, no, relax, don’t worry.
Mary McCord: Well, it’s an interesting concept. And I want to make sure I’m following you because you’re saying it’ll do away with selective prosecution as sort of a theory that a defendant could bring an argument there being selectively prosecuted. I’m actually thinking, doesn’t it just then essentially almost give a bunch of potential defendants the ability to say now this is selective because this other person, the president of the United States, is not going to be able to be prosecuted for these things that I’m going to be prosecuted for.
Andrew Weissmann: Yeah, I think that would be harder because they’re not really similar situated, right.
Mary McCord: Yeah, I agree.
Andrew Weissmann: But I mean, it certainly is an unfairness.
Mary McCord: There is an unfairness, yeah.
Andrew Weissmann: But sometimes that unfairness, as a friend of mine used to say, one of my mentors, life’s full of tough choices, you know, like there are lots of things that are unfair. But anyway, I really do think for our listeners, I know that the Jeffrey Clark thing is not a criminal case. I know that it’s coming up in the connection with a bar proceeding. But it’ll be really interesting to see because this is the kind of thing that Jeffrey Clark will get to take to a court to review how they’re going to deal with this issue. And obviously, Mark Meadows and other people who have been criminally charged will be making the same kind of arguments.
Mary McCord: Yeah. I do think that, and they are, you know, they already are. We talked about Mark Meadows last week —
Andrew Weissmann: Yeah.
Mary McCord: — and it’s going to keep coming. The floodgates keep opening or opening wider, I suppose. But at any rate, last point I was going to make on this is that it can’t be that that decision about presidential immunity is going to then immunize the entire executive branch of the United States for bad and illegal behavior or else we are really, really in trouble.
Andrew Weissmann: In trouble. In trouble is the Mary McCord polite term.
Mary McCord: Yeah. I’ve tried to not use, you know, foul language on our PG rated.
Andrew Weissmann: In deep doo-doo.
Mary McCord: Yes, exactly. The rule of law is dead, if that’s the case. So we can come back to that some other day.
Andrew Weissmann: Okay. So, Mary, should we break? We have a few things we wanted to just quickly cover, but then get to our listener questions.
Mary McCord: Yes, we should. But after I say one more thing, which is that there is another type of fallout from this, which we teased at the top and which we will talk about a lot more on our episode with Steve Vladeck, our premium episode, which is one of the responses is this bill, the No Kings Act that’s been now introduced in Congress, that would essentially deprive the U.S. Supreme Court of appellate jurisdiction to enforce immunity for a president for violating the criminal law and also deprive the court of reviewing the constitutionality of the No Kings Act, a very interesting comment. Exactly.
Andrew Weissmann: Well said. So we’ll definitely get it. That is total preview for Monday. Should we take our break?
Mary McCord: Okay.
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Mary McCord: Welcome back. Before we turn to listener questions, and I have to keep this very brief because Andrew is definitely going to make sure we get to listener questions.
Andrew Weissmann: I know.
Mary McCord: So Jenna Ellis, as folks know, was one of the attorneys that the Trump campaign used post-election in 2020 to file all kinds of frivolous lawsuits challenging the election results in various states. She’s actually been disciplined in some of those states, but she was also very involved in other efforts, including, you know, fraudulent electors scheme and other just general schemes to try to push the legislators in different states, Georgia, Arizona, elsewhere, to send up fraudulent slates of electors, et cetera. She has been charged, of course, and pleaded guilty in Georgia in return for her cooperation. Pleaded guilty to, I think, just a misdemeanor.
And now we’ve heard that in Arizona, where she was also charged, that she has entered into a cooperation agreement with the Arizona attorney general, by which she’s not even having to plead guilty to anything at all. She’s getting all the charges, and I think there were nine charges against her dismissed in return for her cooperation there. Now, there are a number of defendants charged in Arizona, not as many, I guess, as in Georgia, but not Mr. Trump. This is a case where lots of others got brought into it, but not Mr. Trump. People like Giuliani, Boris Epstein, et cetera. So, that we will see what comes of that, if and when that prosecution actually starts getting to a stage of trial proceedings and how and in what ways she might be offering testimony there. But I will say, and we can talk about this longer on another day, that I think for Andrew and me, as longtime career prosecutors, we’ve been a little bit surprised at how favorably —
Andrew Weissmann: Lenient.
Mary McCord: — lenient, yes. Yes. The favorable deals that some of the state prosecutors have made with defendants in the cases against him, very favorable in Georgia and actually, you know, was even called not a crime of moral turpitude so that it wouldn’t affect her bar there. I mean, all kinds of things. And then not even having to plead guilty to anything in Arizona. So she better produce.
Andrew Weissmann: Yeah. I mean, when you decide what to offer somebody, there are all sorts of factors. How serious are the charges? What is the quality of the information the person is giving? At what stage are they cooperating? Is it really early on where you need to get a toehold and the information is really valuable? Have they pled guilty somewhere else and they’re going to be held accountable elsewhere? All of those go into the complicated decision about whether to charge somebody, what to require them to plead to if they want to cooperate. Obviously, the person doesn’t have to plead to anything. They can go to trial, but in terms of what you as a government prosecutor want to offer. And, you know, it’s very fact specific. But in this situation where especially the Georgia case, all of these are under this sort of first time offender rules in Georgia, where if you’re sort of good for the next year, essentially, it goes away. It’s like it’s not even on your record. And as you said, the judges recommended that it’s not a crime of moral turpitude so that you’re not sort of disbarred and lose your law license. So you do look to see whether the person is really, really cooperating in exchange for what it seems like a very lenient deal. With that, is it time?
Mary McCord: It’s time.
Andrew Weissmann: Okay. Maybe I’ll read the first one and then paraphrase it and then turn it to you. We can go back and forth. So the first question we got is really interesting and it’s one that we’ve gotten from various people. And the question is, is impeachment null and void since impeachment is a mechanism provided within the Constitution to address accountability for high crimes and misdemeanors? Does the Supreme Court’s broad immunity decision for the president basically eliminate the possibility of any accountability through impeachment proceedings? That’s the question. Mary, what do you think?
Mary McCord: No.
Andrew Weissmann: Wow. Yeah. Okay. This is great because usually with lawyers, my answers are usually, well, it depends.
Mary McCord: Yeah. But this is one where I do think it is pretty conclusively a no. And it would have been nice for the Supreme Court to say sort of more on this, but I actually think that their entire decision in many ways about immunity from criminal prosecution is based on a notion that there is a political remedy, which is impeachment. And the problem with that is that in today’s world, that remedy is just basically not available because of the partisanship now on Capitol Hill. I mean, if Congress, you know, was unable to actually have a successful impeachment conviction after January 6th, it’s hard to imagine when they would be able to agree. And remember, with respect to the impeachment trial after January 6th, the House had voted to impeach. Those articles impeachment were sent to the Senate where a trial was held.
A majority of senators, including a number of Republicans, did vote to convict, but it has to be a two-thirds vote. So I think, you know, from just a not a legal argument, but just sort of placing the immunity decision in the context of how is accountability supposed to be handled in our constitutional scheme, the other main way is through impeachment and there’s nothing about the court’s decision that says that’s not available. And then the second thing I’d say with respect to that is that high crimes and misdemeanors in the impeachment clause, that existed before we even had a federal criminal code, before we even had state criminal codes. And so the high crimes and misdemeanors has really kind of always been what Congress determines it to be. They don’t really have to be things that, you know, they can point to a particular criminal code violation. They often do. But it’s the body of doctrine and law, you know, sort of on its own. So, I don’t see this as changing that from a legal perspective, but from a reality, it’s just very difficult these days.
Andrew Weissmann: So I agree. Two quick thoughts. One, remember Mitch McConnell when he during the impeachment said, look, I’m not going to vote to convict, but you should remember there is both civil and criminal accountability for what happened. Well, not so much.
Mary McCord: And a number of them then followed course —
Andrew Weissmann: Exactly.
Mary McCord: — and said, the reason we’re not voting to convict is he can stand trial criminally, you know, if that is something that is warranted.
Andrew Weissmann: Yeah, not according to the Supreme Court. So the other is, remember, this is an immunity decision. It’s not saying it’s not a crime.
Mary McCord: That’s right.
Andrew Weissmann: It’s saying the president’s criminally immune. So it doesn’t say he’s immune from impeachment, and it still is a crime. It’s just a question of immunity. So they didn’t say that, in fact, it’s not a crime. Okay.
Mary McCord: All right. Question two. Because of Trump’s 34 felonies, of course, coming from the Manhattan case, will he be prevented from voting in the November election? Andrew.
Andrew Weissmann: So this is a matter of state law. So Donald Trump is a resident of Florida and so he would vote in Florida. And so each state can have different rules with respect to what happens if you are convicted of a crime and also what stage of the conviction and what the consequences are. There’s a whole movement right now essentially to eradicate sort of felony disenfranchisement. So just because you’ve been convicted of a felony that you shouldn’t be forever barred from voting.
And so under Florida law, it’s kind of complicated. But my understanding is under Florida law, he would be able to vote for himself in the November election. You know, the big picture is we’re a country where apparently one major party thinks it’s fine to put on the ballot somebody who’s been convicted of 34 felony counts. And we may see in the middle of September, September 18th, Judge Merchan in the Manhattan case may very well, depending on what he decides on some pending motions, may very well be sentencing Donald Trump in September. So he will really be convicted at that point and sentenced. He may not get jail time. He may get jail time, but not be required to start serving it. But he should be allowed under Florida law to still vote for himself.
Mary McCord: And I believe, isn’t it New York law that says you can vote even if you’ve been convicted unless you’re actually serving a sentence. So I suppose theoretically, if you were in, you know, prison on November 5th, that would be a barrier, but I think that’s unlikely.
Andrew Weissmann: So, Mary, there’s a related question, which is about postponing sentencing from a listener in Minnesota, very much in the news this morning, writing to ask why Justice Marchand postponed sentencing until after Trump’s immunity status in the case was ascertained. The trial is over. His guilt is a matter of record. Why is the Supreme Court decision retroactive? I have something to say on this, but I’m going to turn to you, Mary.
Mary McCord: Okay. That’s a great question.
Andrew Weissmann: Great.
Mary McCord: And, yeah, it is. And this comes up in lots of other areas, too, when the law changes, you know, right after somebody is found guilty. And basically, the way the law works is that until it is final, so a case is not final until you’ve exhausted all of your appeals or all the time has run to take appeals and you haven’t taken appeals. And until then, if the law changes, you can take advantage of that change in the law and make an argument on appeal or in front, in this case, in front of the trial court judge because you’re not even yet up on appeal, that you should have a different result based on that change in the law. And so that’s the posture that we find ourselves in with respect to the Manhattan case, you know, after the guilty verdicts, but before sentencing. And you can’t even have an appeal until after sentencing. We have this change in the law with respect to immunity.
And that is why Judge Merchan, you know, agreed to kind of hold up and allow briefing on this issue of whether and if so, how the immunity decision should impact the verdicts here. This is to be distinct from, for example, people whose convictions have long been final and there’s a new change in the law 20 years later and they come in and say, oh, I should get a new trial based on this change in the law. In those situations, it is extraordinarily rare that decisions of the Supreme Court are retroactive. It occasionally is the case and that’s the subject for a deep dive into, you know, law school level 200.
Andrew Weissmann: That’s not even 2.0. That’s like 3.0.
Mary McCord: That’s right. But that’s exceedingly rare. But we’re not in that situation here.
Andrew Weissmann: So I think there is an argument with respect to the issue before Judge Merchan, where remember, the issue is the preclusion of official act evidence in a case that is unofficial because the rationale was, in part at least, that you don’t want to deter the sort of vigorous discussion and actions of the president. But the Hope Hicks testimony that we talked about, for instance, that’s already happened. There’s already been that conversation. And so the issue of applying that backwards to this trial, there’s no harm. In other words, it’s a new rule. I agree completely with your analysis of the way retroactivity law works. It’s just that there’s no reason to say it should apply here because it’s really a question of going forward —
Mary McCord: Yeah.
Andrew Weissmann: — because this has all happened in the past. So you don’t have to worry about you want to deter this going forward.
Mary McCord: Right. We can’t deter. You know, you can’t put the milk back in the bottle to the extent that any future president or anyone else would be deterred. That already happened.
Andrew Weissmann: Right. So I didn’t see that in the D.A.’s brief, but I do think it’s a valid argument with respect to the long Hope Hicks discussion we had the other day on that. Okay, so, Mary, we’re going to get to more listener questions in future episodes because we just got so many really good ones. But we do have one last question.
Mary McCord: Yes. Okay. This is from someone in Dallas who says, I am an 84-year-old granny in Dallas, went into the Peace Corps when JFK was president. Clean for Gene. You get the idea.
Andrew Weissmann: Clean for Gene? I am old enough. You know what that’s a reference to? Gene McCarthy, 1968 presidential campaign.
Mary McCord: Our listener says every time I listen to your podcast, I’m sorry that class is over too soon. Only in the past few weeks, I have relearned that persons appointed to the Supreme Court do not have to be attorneys. They do not even have to be college graduates. Here’s my question. Do you think that we could do just as well if the Supreme Court was made up entirely of nine childless cat ladies? Andrew, yes or no?
Andrew Weissmann: Is this when I get to say it depends?
Mary McCord: Yes, exactly. I think this is where we can say it depends. I don’t have the legal answer to that.
Andrew Weissmann: So that is a great question and thank you. Shout out to the 84-year-old granny in Dallas. Wonderful childless cat lady question. So great note to end on, because there’s so much news and a lot of what we were talking about today doesn’t speak well for the Supreme Court decision and all of its ramifications. Tons to keep an eye out for. Obviously, everyone’s very focused on the politics right now, but there’s a lot going on in the legal front that Mary and I are happy to be able to chat with each other and all of you.
Mary McCord: Yes.
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