While this podcast’s name has changed, this week’s episode revolves around all things prosecuting Donald Trump. After a detailed review of Judge Juan Merchan’s reasoning and limitations for sentencing the president-elect after his New York criminal conviction, veteran prosecutors Andrew Weissmann and Mary McCord wind through the barrage of motions in Florida to block the release of both volumes of Special Counsel Jack Smith’s final report. After underscoring why Volume Two-- concerning the now dismissed classified documents case-- is still under wraps, they dig into the finer points of Volume One, released to the public at 1:00 a.m. Tuesday morning. This first volume lays out the facts and the law as it relates to Trump’s DC election interference case which has also been dismissed, though Smith writes, “but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
Further reading: Here is Volume One of Jack Smith’s final report.
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Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissman: Hi, and welcome back to Main Justice, which is by the way, Mary, it’s like the podcast formerly known as --
Mary McCord: That’s right.
Andrew Weissman: -- Prosecuting Donald Trump. It’s like Prince. So welcome back to Main Justice. It’s Tuesday morning. It’s January 14. I’m Andrew Weissman. And that other person who you just heard the laugh from is wonderful co-host Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. It is kind of interesting to say when I hear welcome to Main Justice, I think I’m standing in Main Justice --
Andrew Weissman: Exactly.
Mary McCord: -- or something, right?
Andrew Weissman: Exactly.
Mary McCord: Which, of course, we are not, as a matter of fact. But it is a little bit interesting because we just launched our name change last week with the first episode of the new year. But today, honestly, our discussion is going to be about the aftermath of the prosecutions of Donald Trump. And so this particular episode would have still been appropriately under our former title.
Andrew Weissman: Yes. So, prosecuting Donald Trump post-mortem.
Mary McCord: Yes. Yes.
Andrew Weissman: Right?
Mary McCord: That’s perfect.
Andrew Weissman: So what are we going to cover?
Mary McCord: So we will start because so much has happened. I think this almost seems like it’s ancient history now, but it of course is not. We will cover the historic first ever, which is a former president and incoming president being sentenced for crimes. That sentencing occurred in New York on Friday after the Supreme Court allowed it to go forward in a five to four vote. We will of course talk then about the release by the Department of Justice at around 1 a.m. this morning of Jack Smith’s final report, volume one, which is about the January 6th case.
But before we talk about volume one of the report, we will talk about the weeks long legal machinations by Donald Trump and his co-defendants in the Mar-a-Lago case, Walt Nauta and Carlos de Oliveira, to prevent the release of both volumes of the report.
Andrew Weissman: Right.
Mary McCord: Volume one related to January 6th, volume two related to Mar-a-Lago, and we will tell you where things stand with respect to volume two. So, there’s just a ton on our agenda today.
Andrew Weissman: Yes. So, should we start with the New York sentencing?
Mary McCord: Yes.
Andrew Weissman: By Judge Merchan and the Supreme Court in a five to four decision.
Mary McCord: Thursday night, right?
Andrew Weissman: Yes, just before the scheduled Friday sentencing did not grant the Donald Trump application for a stay. People will recall that he had asked for a stay. We talked about this last week from Judge Merchan. He asked for a stay from the first department. That’s the first level of appellate review. He then filed basically simultaneously in the New York Court of Appeals and in the Supreme Court of the United States, asking for a stay, and ultimately, every court denied it at every level.
But it was five to four in the Supreme Court. We do not know the reasoning of the four, but the two switches that joined the so-called liberal three justices were Amy Coney Barrett and Chief Justice Roberts. It wasn’t surprising that Amy Coney Barrett would have joined, given her opinion, her concurrence in the presidential immunity case. But that’s at the stage then for the sentencing.
Mary McCord: But we do know the rationale of the five.
Andrew Weissman: Yes, exactly.
Mary McCord: Because it was not a full opinion. It was a short paragraph, but they did give their reasons.
Andrew Weissman: Right. And there were sort of two reasons. And, Mary, what were they?
Mary McCord: Yes. So, one was essentially, this is about error correction, right? There are alleged evidentiary errors that have been ruled on and can be dealt with in the ordinary course of the appellate process.
Andrew Weissman: And what is the ordinary course, Mary?
Mary McCord: Yes, we have talked about so many times, which is that normally you don’t get all these intermediary chances to go up on appeal while your criminal case is pending. If you are convicted, you bring all of your arguments about why your conviction should be reversed after your sentencing.
And so here, of course, this has been different for a variety of reasons, many of which we’ve talked about on this podcast. But one of the things that Donald Trump was arguing is that because the evidentiary errors he’s claiming were the admission of his, in his view, official crimes evidence into his trial, even though the errors he was talking about were the admission of official acts evidence for which he would be immune in a trial for things that he admitted were not official acts. The crimes he was being charged with, although he disputes them, were in his personal capacity.
So, in his view, this was an issue because it involved immunity that the Supreme Court should take up. And so I think it is significant that five justices were like, nope, that is evidentiary error that can be dealt with in the ordinary course of the appellate process.
Andrew Weissman: Right, meaning we’re going to treat you like every other criminal defendant, which is lots of times when somebody, there’s been an error in a trial, somebody raises on an appeal, and depending on what the type of error is, you can get a new trial.
Mary McCord: That’s right.
Andrew Weissman: And you then, yes, you went through sentencing, but it’s just an orderly process. Otherwise, you’re constantly bouncing back and forth to the appellate courts, and they’re like, you know what, when it’s all over and you’ve been sentenced, we’ll hear it all at once.
Mary McCord: That’s right.
Andrew Weissman: So this was basically, guess what? You’re just like everybody else, --
Mary McCord: Yes.
Andrew Weissman: -- even though we all know in a million different ways, the courts have bent over backwards and treated him not like everyone else. But it was nice to see at least five justices take that view. So that was ground number one.
Mary McCord: Yes. And then the second ground was because Judge Merchan, that is, of course, the trial judge in Manhattan, had already indicated that he was inclined to impose a sentence of unconditional discharge, meaning no jail time. No conditions at all, no going in --
Andrew Weissman: Nothing.
Mary McCord: -- and seeing a probation officer, no fines, nothing.
Andrew Weissman: Bupkis.
Mary McCord: But because of that, there was no risk of sort of impeding on the incoming president’s ability to execute his presidential responsibilities, which was another argument that Donald Trump had made --
Andrew Weissman: Right. he was --
Mary McCord: -- that completely impacts --
Andrew Weissman: Yes.
Mary McCord: -- not only me, you know, when I take the presidency after January 20th, but even in this presidential transition period.
Andrew Weissman: Yes, meaning, you know, I have a lot of responsibilities as president-elect, and this is going to take so much time and energy, but they basically were like, how much time and energy? You’re getting the lowest possible sentence that anyone could possibly give. Any defense lawyer --
Mary McCord: Yes.
Andrew Weissman: -- and defendant in any other circumstance would be grab it and growl.
Mary McCord: Yes.
Andrew Weissman: Meaning, --
Mary McCord: And it’s basically no sentence, right?
Andrew Weissman: Right, exactly. It is no sentence.
Mary McCord: Yes.
Andrew Weissman: I mean, it is the sentence in name only. And that sort of gets to the big picture.
Mary McCord: The next point, right. So why bother?
Andrew Weissman: And --
Mary McCord: Why bother, Andrew?
Andrew Weissman: Yes. So I actually wanted to address a different point that has not been made on air. And I wanted to raise this with you, Mary, and with our listeners. It is not in any way to denigrate Judge Merchan. I think he sort of, knowing what the law is, knowing what the Supreme Court was likely to do, sort of read the room and did like the only thing he really could do in this situation and it worked in terms of finalizing the trial court phase.
But I just wanted to raise the Overton window problem of where we are. There is a, you and I, this is like, you can tell I’m getting on a soapbox.
Mary McCord: Yes, yes, yes. You’re winding up.
Andrew Weissman: I’m winding up.
Mary McCord: Getting prepared.
Andrew Weissman: Right. Mary, you and I were public servants for many, many years. We were not kings and queens. We were public servants. That gave us special responsibilities, not special rights and obligations to the public. At the top of that food chain would be the President of the United States. They are not a king, they’re not a queen. They are there to serve the public. The idea that because of your job, let alone your job as a public servant, that means that it sort of trumps the criminal law is something worth thinking about. In other words, let’s assume what if the person was the vice president or a senator --
Mary McCord: Where does this stand?
Andrew Weissman: -- or the mayor or the CEO of Exxon or the head of a charity? Or what if you had to pick your horrendous crime? Think of in the 1950s, the Ku Klux Klan is convicted for arson for a black church. Do you have a vote of the community as to whether the person is going to go to jail? I mean, that’s not how the system is supposed to work. And here, I understand that the electorate decided that Donald Trump should be president. Not quibbling with that. I mean, that’s the way democracy works.
But we’re now talking about what is the effect on a criminal justice system. Imagine that the crime was something that you thought was horrendous. So, take it out of the Donald Trump equation so you can just think about it intellectually. What if the crime were mass murder or terrorism? This idea that we’ve taken it as a given that, well, of course, because you’ve been, you’re going to do some job, it means it’s not just a factor in the sentence, it’s the cannot happen.
Mary McCord: So in other words, just to sort of short circuit that, assume a --
Andrew Weissman: Yes, yes, yes. Basic, boil down my diatribe.
Mary McCord: Yes. Assume a person is found guilty of murder, but nevertheless is elected president. This bar on sentencing a sitting president, at least in federal, well, the bar that he alleged, right, of sentencing a sitting president, and certainly the bar against giving them any jail time, would feel really extraordinary, right?
Andrew Weissman: Right.
Mary McCord: Because it would essentially be saying, people, if you want to vote for someone who’s been found guilty for murder, you’re going to then absolve, your vote is the vote that’s going to be respected and in many ways absolve the person for that crime. but this is where I do think Judge Merchan said a couple of things that were important.
Andrew Weissman: Absolutely, and Mary, just to be clear.
Mary McCord: Because it doesn’t absolve.
Andrew Weissman: I’m raising a very different sort of question about what the law should be.
Mary McCord: Right.
Andrew Weissman: Judge Merchan had to deal with the --
Mary McCord: The laws of this, yes.
Andrew Weissman: -- parameters of the laws it is. The thing that’s different about law and science is nothing we talk about is going to change gravity. And two plus two is going to equal four. But the law is malleable in that it’s very much creating the society we want to live in.
Mary McCord: Created by people, yes.
Andrew Weissman: Right.
Mary McCord: And people can change it.
Andrew Weissman: So Judge Merchan did what he did within the law as it exists.
Mary McCord: Yes, I think he recognized without saying it kind of this, what you’ve just been bringing up, right? It’s kind of extraordinary that the vote could have this impact. But he also wanted to make clear, and he did say this.
(BEGIN AUDIO)
Judge Juan Merchan: Despite the extraordinary breadth of those protections, one power they do not provide is the power to erase a jury verdict.
(END AUDIO)
Andrew Weissman: And by the way, for our listeners, the full audio of the sentencing, including what the judge said and what both the prosecution and the defense and the defendant said, that is Donald Trump, all of that is something that you can go to the Main Justice feed and you will see the full audio so you can listen to it if you didn’t listen to it before.
Mary McCord: Absolutely. And I encourage people to do so. But getting back to the sentence itself, I think in many ways that phrase, there was the reason why this matters. I earlier said, so why bother if there’s no sentence at all? Well, why bother is because, as Judge Merchan said, these new trappings of office the office is about to take, they don’t erase this jury’s verdict. And it is important for that to stand and this conviction to stand and to have a dismissal like Donald Trump wanted would mean there is actually not a final conviction, right? The case was dismissed.
And so he saw value in that, notwithstanding that because of the law and the way it applies to a sitting president, he felt that his hands were tied in terms of the sentence. He did, I think, find it very important to point out what is the same and what is different about the office of president and who holds that office from other defendants. He talked about that this was an extraordinary case because there was unprecedented media attention.
(BEGIN AUDIO)
Judge Juan Merchan: It can be viewed fairly that this has been a truly extraordinary case. There was unprecedented media attention, public interest, and heightened security involving various agencies. And yet, the trial was a bit of a paradox because once the courtroom doors were closed, the trial itself was no more special, unique, or extraordinary than the other 32 criminal trials that took place in this courthouse at the same exact time.
(END AUDIO)
Mary McCord: Yes, and then he talked about the normal trappings of due process that Andrew and I have talked about throughout, right? The right to object to the government’s evidence, the right to, you know, make your arguments to the court even during the trial, the jury’s obligation to assess whether the facts have proved every element of the crime’s charge. All of those rights that every defendant gets are very similar. But as Judge Merchan pointed out, then when he gets to these trappings of the office and what he calls the protections of the Office of the President, those are extraordinary. And he says, --
(BEGIN AUDIO)
Judge Juan Merchan: I’m referring to protections that extend well beyond those afforded the average defendant who winds their way through the criminal justice system each day.
(END AUDIO)
Mary McCord: This is where he went back to the point, Andrew, that I think you were raising with a question about, is this the way the law should be? Because What Judge Merchan goes on to say is, --
(BEGIN AUDIO)
Judge Juan Merchan: No, ordinary citizens do not receive those legal protections. It is the Office of the President that bestows those far-reaching protections to the office holder. And it was the citizenry of this nation that recently decided that you should once again receive the benefits of those protections, which include, among other things, the Supremacy Clause and presidential immunity.
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Mary McCord: And that is why he determined that the only sentence he was really permitted by law to give was a sentence of unconditional discharge.
Andrew Weissman: Yes. And for people who say, well, what if he had put this off and sentenced four years from now? In other words, because there would have been a hiatus because of that rule about not having a pending criminal case proceed against this sitting president. That rule being sort of a DOJ rule. But there’s a very good chance that would apply to the states because you don’t want 50 states all bringing criminal cases against a president and thus interfering with it.
I think at that point, I mean, a judge sentencing in this type of case four years from now, I think the chances that they would get a jail sentence, just given that delay, I think it was a matter of fairness, especially in a nonviolent.
Mary McCord: Not to mention age by then.
Andrew Weissman: Yes, age.
Mary McCord: For a nonviolent offense.
Andrew Weissman: Yes, it just, it would have been inappropriate. We’re not talking about a murder. All of this is a question of degree and kind. So in many ways he did sort of an extraordinary job in getting to where he did, but he also made it very clear that this was a sentence that was being imposed because of the presidency.
Mary McCord: That’s right.
Andrew Weissman: Nothing intrinsic to Donald Trump and the nature of the crime and what the sentence would otherwise have been. And so that sort of idea is one that we’re going to, when we turn to the Jack Smith report, later in our podcast, that sort of idea of like what would have happened but for. This is sort of, you get the real sense, what would have happened if he had not been elected again is, I don’t know that he would have gotten jail time, but he certainly I think would not have gotten an unconditional discharge. I mean, that’s no probation, --
Mary McCord: I think that’s like, --
Andrew Weissman: -- no fine, no jail, no nothing. That’s just unheard of to get that.
Mary McCord: Yes.
Andrew Weissman: So, we’re going to turn to Jack Smith because he actually talks about what he thinks would have happened if there would have been a trial.
Mary McCord: That’s right. In the report on, in volume one, yes, to be clear.
Andrew Weissman: In volume one, exactly.
Mary McCord: Well, this is a good break point, I think.
Andrew Weissman: Yes. Should we break and then talk about what’s going on with volume two and sort of where we stand and what the courts have done, but also what Merrick Garland has said about volume two, which we started to talk about last week, but we have a lot more data now. But should we take a break and come back to that?
Mary McCord: Yes, let’s do that.
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Andrew Weissman: Welcome back. So, there’s been lots and lots of litigation in Florida and the 11th Circuit about the release of volumes one and two. Just to remind people, volume one of the Jack Smith final report, which is now out as of early this morning, is the part of the report dealing with January 6. There’s also a part of the report, volume two dealing with the classified documents case that is still under wraps and subject to an injunction. When we last left off in our last episode, it’s like a Dickens novel here, --
Mary McCord: Yes.
Andrew Weissman: -- where there had been an application by the two Donald Trump co-defendants to join the release of volumes one and two. Somewhat unusual because volume one, of course, was not related to --
Mary McCord: Nauta or Carlos de Oliveira.
Andrew Weissman: Exactly.
Mary McCord: Or the case in front of Judge Cannon, which is where they filed their application.
Andrew Weissman: Right, like surprise, surprise.
Mary McCord: Yes.
Andrew Weissman: And Judge Cannon grants a sort of temporary injunction purportedly saying, I want to keep things on hold pending the 11th Circuit decision on this because the two co-defendants simultaneously also filed an application in the 11th Circuit.
Mary McCord: And the reason for that, I’m sorry to interrupt, is because right now, the case before Judge Cannon had been fully dismissed, including against Nauta and De Oliveira.
Andrew Weissman: Right.
Mary McCord: The government had appealed that.
Andrew Weissman: Right.
Mary McCord: And then the government dismissed the appeal as to Donald Trump after he won the election, but that appeal is pending as to Nauta and De Oliveira and nothing was really pending against them before Judge Cannon. So that’s, I think, why their attorneys were like, let’s do both. Let’s file before Cannon and let’s file before the 11th Circuit. Yes.
Andrew Weissman: Right. Let’s do both because it’s not clear she really has jurisdiction because she pointedly ordered the clerk to close the case as to all three defendants. There’s no pending case in the district court per her decision because I think she pointedly, this is my subjective view, wanted to be like, I want them to be able to say there’s no pending case here. And she closed it. That wouldn’t have been necessary, especially since there obviously was going to be a government appeal, which there was.
Mary McCord: Right.
Andrew Weissman: I remember the reason was she said that Jack Smith --
Mary McCord: Still is.
Andrew Weissman: -- was not rightly appointed.
Mary McCord: Right.
Andrew Weissman: She was the only judge to ever said that. I want to make sure that with respect to volume one is obviously now out. All of that sort of ended up getting denied.
Mary McCord: By Judge Cannon actually. Yes.
Andrew Weissman: Right. And she ultimately got representations from the government saying volume one just does not relate to Nauta and De Oliveira. It is, it’s about the January 6th case and any references are passing and don’t mention them. And they were ordered to construe that liberally. And they went through it. And Nauta and De Oliveira where their counsel was given an opportunity to see it. Donald Trump’s counsel was given opportunities to see that.
So in volume one, it’s out. Volume two, I want to make sure people understand what the dispute is here. It is not a dispute between we want to, the government wants to release it publicly as they did volume one, and Nauta and De Oliveira and Donald Trump are saying, don’t release it publicly.
The dispute is a lot narrower, because what Merrick Garland has said is that his intention is to only release volume two related to Mar-a-Lago to certain members of Congress because they needed to do their oversight responsibilities, and that they would get it, and they would also be committed to not release it further. And the application before Judge Cannon is to preclude that.
And where we stand as of this recording is the judge said there’s a temporary injunction that is precluding the government from even sharing this with Congress. So, in terms of the public getting this, there’s --
Mary McCord: That’s not on the table right now.
Andrew Weissman: Exactly. Because it’s both precluded by Judge Cannon saying, well, I’ve precluded them sharing it even with Congress. But Merrick Garland himself, even if he’s given a green light ultimately by either Judge Cannon or the 11th Circuit, which has a pending appeal on this issue, Merrick Garland has taken the position that he doesn’t think it’s appropriate to share it publicly.
So I wanted to first ask you before we dive this, because there’s a lot of minutiae about the 11th Circuit and Judge Cannon and the delay because they’re really running up against the clock. I wanted to focus on the Merrick Garland piece of what is the stated rationale and do you think it would be reasonable to have a different view of that rationale and sort of what would be appropriate in this circumstance?
Mary McCord: Well first off, I think we need to be clear. Merrick Garland made that decision and the Department of Justice made the representations to Judge Cannon that they did not seek to release volume two publicly. He did that at the recommendation of Jack Smith, the special counsel. When Jack Smith transmitted both volumes to the attorney general on January 7th, and you can see this transmittal letter if you go online and look for the final report, the transmittal letter i? there, he describes his obligation to transmit his final report on both investigations to the attorney general. And he says in that letter, because volume two discusses the conduct of Mr. Trump’s alleged co-conspirators in the classified documents case, Waltine Nauta and Carlos de Oliveira, consistent with department policy, volume two should not be publicly released while the case remains pending.
So it was Jack Smith who said, I’m recommending you not release this publicly. It’s still the attorney general’s decision, but the attorney general’s representations do make clear, as I recall, that Jack Smith also made that recommendation. So I think you’re getting to the question of, is that right? Is the case really pending against them?
Andrew Weissman: Yes, didn’t I hear you say Judge Cannon closed the case?
Mary McCord: That’s right. You know, she dismissed it and ordered it closed. Nevertheless, there is an appeal, right? The appeal from the Department of Justice of her substantive ruling that Jack Smith was appointed in violation of the Appointments Clause and was paid in violation of the Appropriations Clause. That ruling is the ruling that the Department of Justice appealed. And if the 11th Circuit were to reverse her on that ruling, the case would go back to Judge Cannon so that the department could pursue the prosecution of Nauta and De Oliveira.
Now, they could not pursue the prosecution right now of Donald Trump because they dismissed their appeal as to Donald Trump under the binding OLC guidance that you cannot prosecute a sitting president, which we’ve talked about. So that, I think, is the reason. And now we’re going to get to, is that correct?
Andrew Weissman: Yes.
Mary McCord: Right? That’s the reason given.
Andrew Weissman: But let me just, again, before we get to the, is it correct? So the thinking is you don’t want to denigrate somebody when, let’s just, the classic case would be the case is actually pending awaiting trial in the district court and you issue a report.
Mary McCord: Hasn’t been dismissed, right.
Andrew Weissman: And it hasn’t been dismissed and you would issue a report that suddenly denigrates them. No can do.
Mary McCord: Right.
Andrew Weissman: You can’t do that under DOJ policy. You can’t do that under a lot of local rules that exist in courts to not say disparaging things, but the government can’t with respect to pending cases. It actually applies to the defense to the prosecution as well. That’s sort of the classic case, but here the Rube Goldberg that your analysis is, one, the government would have to continue to pursue the appeal after January 20th. Two, the 11th Circuit would have to agree with the government. Three, let’s assume the 11th Circuit doesn’t and it goes back to just a U.S. attorney’s office to pursue, or it goes back to a special counsel. Well, the special counsel is gone. And you have to assume that the government, either as a new special counsel or in the U.S. Attorney’s Office, would want to --
Mary McCord: And this was, in fact, referred to the U.S. Attorney’s Office in the Southern District.
Andrew Weissman: Right. So, the case would have to then be pursued. And what are the odds that this case would be pursued against Donald Trump’s co-defendants where Donald Trump would be an indispensable and key critical witness, where the entire trial would be about what happened at Mar-a-Lago? So, the fanciful nature of this being something that would go to trial under the Trump administration seems so bizarrely remote when you compare it to the platonic ideal I started with, which is the pending case. And I would ask the question, what is the difference between taking this position with respect to Walt Nauta De Oliveira and taking that position with respect to Donald Trump?
Remember, Donald Trump’s case was dismissed without prejudice. So in four years conceivably it could be brought, but no one’s thinking about that because they know like it’s not going to happen in four years and it’s probably not going to happen after that either. And the same thing is just as true with respect to Walt Nauta De Oliveira. So maybe it’s slightly more likely with respect to De Oliveira and Walt Nauta, but it just to me you have a rule that I think, just to give you my bottom line, is I think the rule is being misapplied. And yes, I do think that they’re being careful and you’re not going to get in trouble by doing that.
But just remember what the downside is. This is information that is of extreme public interest. It’s the reason volume one was released. There’s been no public accountability. And this is an area where we don’t have as much information as we do on January 6 because we have the January 6 committee hearings. Jack Smith has said that the report with respect to the Mar-a-Lago events talks about sort of why it happened, which is something we have a big gap in knowledge, but it also presumably would give information about how Donald Trump treats or doesn’t treat with respect classified documents, which could be really important to the intel community here and abroad, but also Kash Patel, who is a proposed nominee for the FBI director and has publicly said that he was present when Donald Trump declassified all these documents and it’d be useful to have the information about what he did or did not say and what the contrary evidence could or could not be. So there’s downsides.
Mary McCord: Well, to be clear, if that was grand jury information, that would be redacted anyway. But I have three things I’d like to say in response.
Andrew Weissman: Yes. Okay.
Mary McCord: Okay. So one is that I think that the department is acting, and because this is what they tried to do, which is proceeding according to norms with the assumption that those norms will continue to be followed after January 20th, notwithstanding that I think the reality that we all know is that they won’t.
So what do I mean by that? In an ordinary world, I think, and we have discussed the merits of the government’s appeal to the 11th Circuit, we have discussed how we think that the 11th Circuit would reverse Judge Cannon on the dismissal of that case, and that would mean it would go. I still think that if the case remains pending in front of the 11th Circuit, and it would go back to Judge Cannon, and it would go forward toward trial. And so I think the department is making its decisions as though that is the outcome.
We know, or we have reason to believe, that after Donald Trump becomes the president, he will do one of a number of things, or do all of them. Order his Department of Justice to dismiss the appeal as to Walt Nauta and Carlos de Oliveira, which means there would be nothing left even on appeal, which means there’d be no chance of reversal on appeal and sending it back to Judge Cannon for a trial. And he may also pardon De Oliveira and Nauta, which would mean never could there be a trial.
So the reality is different from the norms. And I think when I look at what Jack Smith recommended and what Merrick Garland then represented is making the assumption that there really could realistically be a trial against Nauta and De Oliveira and they do not want to violate these principles of putting out evidence against them without them yet having their day in court. That’s my point one.
Andrew Weissman: Yes.
Mary McCord: Point two is people have certainly been talking about why the heck doesn’t the Department of Justice just right now go ahead and dismiss the case as to Nauta and De Oliveira because they have good reason to believe that’s what Donald Trump will do. He has, you know, said this case was not rightly brought ever. And then this problem of a potential pending case --
Andrew Weissman: Goes away.
Mary McCord: -- goes away and the department through the attorney general could decide it’s in the public interest to release this. I can’t answer that except for this adherence to, you know, ideas of norms and that would seem overtly political, something done just to be able to release the report. And these are the kinds of institutional things that the department under an ethical rule of law-based leadership is allergic to thinking about. But that’s where reality is.
And then my third point goes to the substance here. Whether this comes, and I do think it would be very important for this to be released to the public. And it looks like unless something happens between now and Monday at 12 noon, it’s not going to be released to the public. But I also think that it is very important, not just that it be released to the chair and ranking members of House and Senate judiciary, as Merrick Garland has requested, but I think it should go to the chair and ranking members of the intelligence committees --
Andrew Weissman: Of course.
Mary McCord: -- and the armed services committees.
Andrew Weissman: Of course.
Mary McCord: Because I think there is important national security information in this report that they need to know in order to do their jobs to prepare for what is potentially to come in the next four years. And by their jobs, I mean, notwithstanding that I realize the Republicans control both houses right now, the margins are slim and those members on these committees do tend to take seriously national security and they may want to conduct some oversight based on this or even pass some legislation based on this. And there’s information I think they should know to get to your point about Kash Patel, about some of the people that Donald Trump is nominating to be part of his national security team, and that would include the FBI director as well as other important positions. So those are my three responses.
Andrew Weissman: So where things stand is we’re waiting for, Judge Cannon says that she is going to have a hearing this week on this issue.
Mary McCord: Friday.
Andrew Weissman: With respect to whether the report can be released to members of Congress as Merrick Garland would like to do.
Mary McCord: Again, just the Judiciary Committee.
Andrew Weissman: Yes, exactly.
Mary McCord: Chair in ranking the judiciary committees of both houses.
Andrew Weissman: And the 11th Circuit also has an appeal. So, the 11th Circuit may step in, they may not, but those are the two places.
Mary McCord: In other words, they don’t have to wait for her hearing.
Andrew Weissman: Exactly.
Mary McCord: Right now, the government has separately appealed --
Andrew Weissman: Right.
Mary McCord: -- Judge Cannon’s injunction against the release of volume two, and they could act at any point.
Andrew Weissman: Exactly. So, we have both of those things going on, but with, you know, obviously everyone’s running up against the clock here. This is probably a really good segue because we do have --
Mary McCord: Volume one.
Andrew Weissman: -- a report because volume one, which you alluded to, has come out. So we’ll take a break and come back and give you some of our initial thoughts of it’s a very lengthy report. We will attach a link to it to our show notes, including his cover letter that Mary, that you talked about. Let’s take a break and we’ll come back and give at least initial impressions of what struck us, at least on that first go-round of review.
Mary McCord: Sounds great.
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Andrew Weissman: So, Mary, you and I have now had a chance to speed read. And what we thought would be good is to give viewers, ha-ha, otherwise known as listeners, to give our listeners just our sort of first takes, because I’m pretty sure we’re going to come back to things. But having had a minute and 32 seconds, --
Mary McCord: Right.
Andrew Weissman: -- or as we say in New York, a New York minute, to read this and not even really digest it, what were your sort of initial thoughts or thought in going over this?
Mary McCord: Yes, so first of all, to the extent that anybody might have been under the expectation that this would include lots of new revelations about evidence, it doesn’t. And actually, I don’t think we expected that because remember that after the Supreme Court’s immunity decision, the special counsel had filed an extensive 165 pages at least explanation of all the evidence that it sought to use at trial because the court was going to have to make decisions about whether any of that was official acts of evidence that couldn’t be introduced.
So, we’ve seen a very sort of elaborate description of the evidence. What I thought was actually much more interesting about this report is a couple of things that had to do with the thinking that the special counsel and his team had to do oftentimes in consultation, not with the attorney general, but with components of DOJ that all U.S. attorneys and special counsel are obligated under Justice Department procedures and policies to consult with, like the public integrity section, for example, when you’ve got a prosecution that is during an election year, right?
So followed all of these procedures, but getting in the heads of the prosecution team and their considerations when it came to the charging decisions that were made. And so, for example, not only does the report talk about why they decided on the four charges that ultimately were included in the indictment, both the first indictment and the post immunity decision indictment, which included conspiracy to defraud the government of an important government function, right? The counting of the electoral votes, the peaceful transfer of power, obstruction of an official proceeding, and conspiracy to obstruct an official proceeding, and obstruction of civil rights.
So, okay, that was interesting. But what’s more interesting is them talking about looking at various defenses that Donald Trump might raise and why they decided that those defenses would not succeed and they should still bring those charges. And those included the defenses of good faith, good faith belief that there was fraud in the election, advice of counsel, and First Amendment. They determined first, there really is no good faith defense here because Donald Trump had been told by every advisor in the federal government as well as state officials responsible for the elections that there was no fraud, and even if he sincerely believed it, you can’t use deceit just as an excuse for good faith when you’ve been told otherwise.
Andrew Weissman: It also suggests not good faith.
Mary McCord: That’s right. A hundred percent.
Andrew Weissman: I always loved on that, I mean, there’s so many examples and we’re not going to delve into the facts, but I always loved the statement that was issued by Donald Trump saying the vice president, I’m paraphrasing, the vice president agrees with me that he has the power to not count the electoral votes when the vice president had said, and it’s been reported and it’s in the report as well, had said that’s the --
Mary McCord: The opposite of that.
Andrew Weissman: -- exact opposite.
Mary McCord: That’s right.
Andrew Weissman: And so, the president at the time goes public. And that led to so many people saying, you know, hang Mike Pence.
Mary McCord: Yes.
Andrew Weissman: And he’s not doing the right thing because Donald Trump said he had said that he had that power and agreed with me when he had actually said the opposite. And that, it’s so hard to have a good faith defense --
Mary McCord: That’s right.
Andrew Weissman: -- when you’re doing that.
Mary McCord: That’s right. Absolutely. That’s the deceit, right? And there are many other examples. The special counsel talks about sort of the evidence that supports --
Andrew Weissman: Yes.
Mary McCord: -- that there was no good faith. Second, when it comes to advice of counsel, the special counsel said, we looked at that, but you can’t rely on the advice of counsel when your lawyer is an accomplice. And the lawyers who were telling him to do this scheme were people who were unindicted co-conspirators, people like Rudy Giuliani and John Eastman, not the lawyers in his own White House counsel’s office and his own Department of Justice who were telling him something very different. And the special counsel’s point is he wasn’t relying on Giuliani or Eastman for legal advice in that attorney-client relationship. They were part of his conspiracy. So that’s why they rejected that idea.
Andrew Weissman: Right.
Mary McCord: And then finally, they discussed the First Amendment. The report discusses the First Amendment, that the speech, that First Amendment does not protect speech that is used as an instrument of a crime. And here it’s the lies and known false statements about so many things, fraud in the election, about election officials, about dead people casting ballots. All of these things were all part of the charge conspiracies, plural, and so therefore not protected speech.
So I think that’s, I mean, some of these, we talked about these defenses before and the reasons that they would be denied, we thought. And in some cases, the district court had ruled on aspects of these, but this is part of what goes in. And you and I know from our time in the U.S. attorney’s offices that anytime you’re doing a prosecution memo before making charging decisions, you’re raising the defenses and to seeing if you can defeat them. Maybe the most interesting thing to me about this whole report though is --
Andrew Weissman: I know what you’re going to say.
Mary McCord: -- the charge not brought, yes.
Andrew Weissman: Exactly. This is why we still have to find --
Mary McCord: Mind meld.
Andrew Weissman: -- something we disagree on.
Mary McCord: So yes, the charge not brought, --
Andrew Weissman: Yes.
Mary McCord: -- which is the actual insurrection offense, right? It’s a statute under Title 18 of the U.S. Code, Section 2383. And I mean, I had surmised and various people had surmised why that charge wasn’t brought, but as an outside observer, when you’re looking at what happened on January 6th, it like looks like an insurrection to me. And it would have been a very direct and powerful charge.
Andrew Weissman: But what do they say the -- because this is such a one for, it’s definitely in the weeds, but it really talks about all the different components that would have to be proved.
Mary McCord: That’s right. And again, these are the things you think about as a prosecutor when you make charging decisions. And it ultimately comes down to two things, but I’ll explain those and I’m sure you’ll have things to say about them too. Litigation risk and lack of necessity to bring that charge in order to hold Donald Trump accountable. Other charges were powerful and would allow for the admission of all the same evidence that an insurrection charge would allow for. And so that kind of is a little bit self-descriptive. Like we’ve got other powerful charges. We don’t have to add this one. It’s not going to change sentencing exposure. It’s not going to change evidence. We don’t have to do it.
And the reason that’s important is because of the first reason, litigation risk. They’re like, this charge has not been used for more than 100 years. There are questions about what is even the definition of an insurrection. They recognize a whole bunch of trial judges and circuit judges, I believe, in the District of Columbia have said in the course of the January 6th prosecutions of those who attacked the Capitol, they have called it just in sort of common parlance, an insurrection. And the special counsel’s report gives lots of examples and quotes where this was called an insurrection. But they say, we understand why courts refer to it that way. But when we look at historical uses, they say, of the Insurrection Act, it has always involved overthrowing a sitting government --
Andrew Weissman: Exactly.
Mary McCord: -- and not using the government to maintain power. And that’s really interesting. And I guess my only quarrel with that would be, I get that for Donald Trump’s use of his Department of Justice and his own pressure on state legislatures. He’s like using the government. But what about encouraging the rioters and the attackers to engage in that attack, which was on the sitting government? It was on Congress. So that’s just my little note of I do think there’s a response to that, but I do understand it.
Andrew Weissman: And it also was to impede the incoming administration.
Mary McCord: That’s right.
Andrew Weissman: But they did point out that although we’re making these kinds of arguments, there were some law to the contrary. There wasn’t a lot of law on this particular statute.
Mary McCord: Therefore, it’s a risk, right?
Andrew Weissman: There’s all this litigation risk that they’re talking about, which is just the mere definition of insurrection --
Mary McCord: Right.
Andrew Weissman: -- was an issue. And then what would the intent need to be? And then the sort of Brandenburg First Amendment issue of terms of, well, they say the president and their view could foresee violence. It’s very interesting language and clearly very parsed that there was no direct evidence that he intended the full scope of what happened on January 6th.
Now, there’s a lot encompassed in that because obviously, there can be circumstantial evidence, not direct evidence. And you could have evidence that goes to maybe not the full scope, but --
Mary McCord: That’s right.
Andrew Weissman: -- some of the scope.
Mary McCord: That’s right.
Andrew Weissman: And also there’s normally, as you know, there’s a jury charge that says you’re presumed to intend the natural and foreseeable consequences --
Mary McCord: Exactly.
Andrew Weissman: -- of your actions. So, once they say it was foreseeable to the president that there would be this violence, you would get a jury charge that would help you with proving intent. But that’s why I think the second thing you said, Mary, is they’re flagging all of these open issues, the fact that it’s essentially a novel charge, that there are some open legal issues. And essentially, it’s like --
Mary McCord: We don’t need it.
Andrew Weissman: We don’t need it.
Mary McCord: We don’t need it.
Andrew Weissman: Because we can bring something that’s sort of straight down the middle.
Mary McCord: yes.
Andrew Weissman: I remember Michael Dreeben used to say this, which was, you know what gray is? Gray is for civil cases, gray is not for criminal cases.
Mary McCord: Yes.
Andrew Weissman: Meaning, don’t start --
Mary McCord: The stakes are higher in a criminal case.
Andrew Weissman: Yes, and plus you’re holding someone to account criminally, it should be fair way.
Mary McCord: Yes. And just to go back to your point, it wasn’t like the special counsel is saying, we think we would lose on these arguments.
Andrew Weissman: Right.
Mary McCord: In fact, they elaborately say, there are good responses to these arguments, but there’s not a lot of precedent here. These are open questions. Therefore, it could slow things down in litigation over these questions. It could result in convictions that might be overturned, et cetera. And we have these other charges that are powerful, that they felt were very well situated within existing precedent. And so no need to go forward.
Obviously, we didn’t get through a trial before the election anyway. But the one thing that always really bothered me about not bringing this charge is that I do think had there been a trial and had the jury found Donald Trump guilty of insurrection, then he would have been prohibited. I think under the 14th Amendment, Section 3 from ever holding Office of the President again, because it denies that privilege to someone who has committed an insurrection or a rebellion against the Constitution.
Andrew Weissman: Mary, are you reading my notes?
Mary McCord: No.
Andrew Weissman: This is, -- it’s so funny.
Mary McCord: But I’m hardly thinking the same thing.
Andrew Weissman: That is literally, literally the exact same thing, which is I read that, and the one thing that’s not in the report, at least I don’t think it is, we have to say we’re going to go back over it, is that this is the one charge where in the statute, if there’s a conviction, it says what the penalties are, and the penalty is --
Mary McCord: That’s true in a statute too, yes.
Andrew Weissman: -- you cannot, Congress has passed that, so it would have satisfied the Supreme Court decision --
Mary McCord: 14th Amendment.
Andrew Weissman: -- about you needed an implementing statute that you could not run again. So it would be a little bit like Bolsonaro in Brazil.
Mary McCord: That’s --
Andrew Weissman: And so, he would have been disqualified absent being reinstated by --
Mary McCord: That’s right.
Andrew Weissman: -- a certain percentage of Congress.
Mary McCord: Because Congress can do that too, yes.
Andrew Weissman: So it’s not in there that they considered that or didn’t consider it. And it is no question if they had charged it, it would have led to claims of politicization --
Mary McCord: That’s right.
Andrew Weissman: -- that that’s being brought after so long with it not being brought. And look at all the open issues here. and it’s only being brought because of the penalty.
Mary McCord: He would have also argued, now I think unsuccessfully, that he was acquitted of that by the Senate, and therefore --
Andrew Weissman: Yes.
Mary McCord: -- this would be double jeopardy. I think there are responses to that, I think that’s wrong.
Andrew Weissman: Denied.
Mary McCord: But this does allow me to say, I still put the blame on a lot of this on the Senate, which should have convicted him.
Andrew Weissman: Yes.
Mary McCord: Which we know a majority did, but not enough for two thirds. And some of those who did not vote to convict said it was because two things. One, they weren’t sure they could actually impeach someone who’s no longer president because remember the impeachment trial occurred after he had left office. But two, and this is the one that really gets me, leave it to the criminal system because the criminal system will take care of that. And then we’ve seen what has happened there, --
Andrew Weissman: Right.
Mary McCord: -- the presidential immunity decision. And actually Trump arguing, no, you actually can’t criminally charge me because impeachment is the only remedy. So, I still take things back to the Senate’s failure.
Andrew Weissman: Of course. And then this is one where, as we talked about, there are a lot of proximate and but for causes --
Mary McCord: Yes, that’s right.
Andrew Weissman: -- as to why we’re here. And the Senate is one and the Supreme Court is another. And there are lots of other arguments to be made about other players in the system.
Mary McCord: That’s right.
Andrew Weissman: No question. You’re right.
Mary McCord: Yes.
Andrew Weissman: So, you want my big picture?
Mary McCord: Yes. There is one other thing that I think, and this is getting maybe something for a longer discussion. I also thought when they went through investigative challenges, it was interesting to see how they called out Twitter, because Twitter actually refused to comply with a court authorized search warrant that included a non-disclosure order, meaning Twitter could not tell Donald Trump about that. They just outright refused to comply with it and had to have a court order them after, again, it already was an order, court order them to do it after a hearing and then they got fined for that. And I just think it’s, particularly given where we are right now, and again, it’s not even Twitter anymore, it’s X, and particularly given who is the head of X and who is now actually seems to be having quite a bit of influence on the incoming president and is this head of this DOGE, the Department on Governmental Efficiency, it’s just an interesting fact there.
Andrew Weissman: Yes, the department that’s not an official department.
Mary McCord: Exactly.
Andrew Weissman: Yes. So, my comment was people will see in the beginning of the report is a four-page, essentially, letter, like a cover letter from Jack Smith, and it is surprisingly personal. I was comparing it to the Mueller report that obviously we worked on, and I’ve worked on with a bunch of other people, and this is a very personal letter. It talks about his own personal background, his views of his team, the goals of the special counsel, how it fits with the department’s goals.
It’s beautifully written. It’s very embedded in the traditions of the Department of Justice and what guides him and the team. It talks about how much his team went through and has gone through in terms of harassment and threats and vilification, and also talks about his history at the department as well as outside the department, where he talks about his service at the state, national, and international level.
So it’s beautifully written, and so you’re probably thinking, Andrew, what’s your point? It also has conclusions. So again, it’s different than the Mueller report. But understandably, here he’s talking about two cases. And it’s cases where there was an indictment, because he was allowed to have an indictment. So it’s different in kind that one Mueller could do. But it’s got conclusions. For instance, it’s got conclusions. But he thinks that for the election, that there would have been certainly ample evidence to justify a conviction here.
And I think it’s great that it’s here in writing. But, and I’ve talked about this in other forum, I’m old enough to remember Archibald Cox, who was the special counsel during the Watergate era, and he had a live press conference when the issue came up about why he was going to the Supreme Court to ask them to have the president turn over the tapes and why he was rejecting a compromise being proposed where he wouldn’t get the actual tapes.
And he could have, and he did actually have a written submission to the Supreme Court. He could have just left it at that. But the press conference allows you to do something that Mary, you and I know from doing trial work is assess credibility. And also, we’re doing a podcast. We don’t just write a newsletter and say, read it. I mean, you and I write a lot also.
Mary McCord: Yes.
Andrew Weissman: But the point is, I think it would have been helpful to have learned from the Mueller experience and other special counsels and look back to Archibald Cox to say that this is such an important thing that Jack Smith and his team did. And he carefully wrote what he wrote and was careful about what he would say and what he wouldn’t say. But I just thought it would have been very useful to have a press conference and to have a forum where people could hear Jack Smith.
I think he’s a very credible person. And I think it would have been very useful in the same way that people have talked about cameras in the courtroom, or that we’ve played clips of Judge Merchan for the public to see these people, and that way that also can undermine them being caricatured and characterized and vilified because they’re allowed to speak for themselves.
Mary McCord: Yes. And it’s certainly possible, because we saw this after the Mueller investigation, that at some point, Jack Smith will be asked to testify before Congress --
Andrew Weissman: Yes.
Mary McCord: -- about this. We definitely saw that with Robert Mueller. I will say, I see the powerfulness. I can also see Jack Smith, who might have thought that the report speaks for itself, his letter speaks for itself, he would be criticized for trying to be political if he did a press conference, you know.
Andrew Weissman: Yes.
Mary McCord: And let’s face it. He was very quiet here at the end. I mean, they have this report, which speaks loudly, but he left the department on the 10th, and we all knew he would resign before January 20th, but he left the department on the 10th, and the way we know that is because it was in a footnote in one of the briefs in this whole legal dispute we’ve already talked about in this episode, all the litigation about whether the report could be released, the litigation that was taking place in Florida and in the 11th Circuit and literally was in the footnote.
Jack Smith separated from the Department of Justice on January 10th. So very quiet. It also makes me think this was not the only special counsel report that was issued in the last 24 hours.
Andrew Weissman: Unbelievable.
Mary McCord: Yes, yes. So, David Weiss, the special counsel who had been appointed to do the investigation of Hunter Biden, also released his report last night, several hours before Jack Smith’s report. He, of course, also did not hold a press conference. His report is different in the sense that both of the Hunter Biden cases had gone to just short of sentencing, right? They had involved plea in one case and a jury verdict in another case. So, also that influences what you include in his report. And his report is relatively short, I think about 27, 28 pages. But I do think it’s something to show within one 24-hour period, we have special reports about investigations into a former president and a current president’s son. And that is on the heels of a special counsel report by Robert Hur about the current president.
So to the extent that people want to criticize the Department of Justice or Merrick Garland having anything to do with making special counsel reports public, the one thing that he definitely can say is he has been consistent. He has released them all.
Andrew Weissman: Absolutely. Yes, and there’ve been special counsels and they’ve been for Republicans and Democrats, and it’s simply looking at alleged wrongdoing, regardless of party.
Mary McCord: That’s right.
Andrew Weissman: Well, Mary, this has been like an incredibly busy day.
Mary McCord: Unbelievable.
Andrew Weissman: And an incredibly busy 24 hours. So, folks, stay tuned and thanks for listening. And let me remind folks that you can still find us in the same Prosecuting Donald Trump feed. It’s just called Main Justice now. It’s still Mary and me. You’re stuck with us. And so, if you currently follow the series, you’ll continue to get new episodes weekly. And if you don’t follow the series, please consider following Main Justice moving forward.
Also, remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad-free, as well as subscriber-only content. In fact, later this week, our very own Mary McCord is going to be testifying before the Senate Judiciary Committee in regard to the confirmation of Pam Bondi as attorney general. So, I’m going to speak with Mary later this week to talk about her testimony and those hearings and that’s going to be available to MSNBC premium subscribers. I cannot wait for that, Mary. You’re going to be fantastic.
Mary McCord: Well, I appreciate that vote of confidence. We’ll see how it goes on Thursday. And in the meantime, to send us a question, you can leave us a voicemail at 917-342-2934, or you can email us at our new show email, mainjusticequestions@nbcuni.com. This podcast is produced by Vicki Virgolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. 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 of content strategy for MSNBC, who as of today has been named the interim president of MSNBC. Congratulations to her and to Rashida Jones, who announced today that she’s stepping down as MSNBC’s president. Thank you to both of them, Rebecca and Rashida, for their support of the work that Andrew and I do every week to be with our listeners. And best wishes to Rashida in her journey ahead.
Andrew Weissman: Yes, thank you to both of them for all of their support, to Mary, me, and the incredible team, the names of whom Mary just listed. And once again, you can search for Main Justice wherever you get your podcasts and follow the series.
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