As the political landscape transforms and Donald Trump’s criminal cases wind down, MSNBC legal analysts Andrew Weissmann and Mary McCord shift focus to keep watch on the incoming president and how his Department of Justice will use the law to move his agenda forward. With this realignment comes a new name: Main Justice. In this episode, Andrew and Mary explain what Main Justice is before breaking down the barrage of incoming news, from Trump’s pending New York sentencing to his attempt to stop the public release of Special Counsel Jack Smith’s final report. They also give a taste of the broader scope they plan to cover, with analysis of Trump’s unusual filing in the Supreme Court, urging a pause in the TikTok ban until he takes office.
Also, note to listeners: since the time of our recording, a New York Appellate judge has denied a stay of Trump’s sentencing. You can read that decision HERE.
This podcast will still cover any lingering issues around Trump’s criminal and civil cases, and you’ll continue to find new episodes in the “Prosecuting Donald Trump” feed. It will now just fall under the name “Main Justice”. So if you haven’t already, follow the feed to receive weekly episodes.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back. It’s Tuesday morning, January 7th. I’m Andrew Weissmann and I’m here with --
Mary McCord: With Innis.
Andrew Weissmann: -- with my dog Innis.
Mary McCord: With your dog Innis.
Andrew Weissmann: And Mary McCord.
Mary McCord: Happy New Year, Andrew. Happy New Year, Innis.
Andrew Weissmann: Yes, it’s exactly. So, he’s wishing everyone a Happy New Year.
Mary McCord: It’s hard to believe that we are only today, the 7th, having our first episode of the New Year.
Andrew Weissmann: I hope you had a great holiday season. It’s great that its January 7th, because it feels like we had some real time off.
Mary McCord: We had time. The off is debatable, but we had time.
Andrew Weissmann: Absolutely.
Mary McCord: Yeah.
Andrew Weissmann: So if you noticed when we started, I didn’t say hello and welcome back to Prosecuting Donald Trump because we wanted to start our first episode of 2025 with news about this podcast. So starting today, we will no longer be introducing this podcast as Prosecuting Donald Trump. We have spent, this is kind of remarkable, Mary --
Mary McCord: Yes.
Andrew Weissmann: -- we’ve spent the last 119 episodes covering the four stark criminal indictments of the former president. But as we’ve talked about since November, now that he is president-elect, the two federal criminal cases are dismissed without prejudice, and the two state cases are soon going to be in advance, at least for the duration of the Trump presidency.
Mary McCord: Yeah, and that doesn’t mean we won’t continue to report on all things that have to do with litigation involving Donald Trump, because of course, not only did we cover the criminal prosecutions, we covered civil cases and other litigations. We’ll certainly continue to do that. But as this political landscape changes, Andrew and I are shifting our focus, frankly, and broadening our lens to also monitor the coming administration and how it will use law to move Donald Trump’s agenda forward. So today, we introduce our new podcast focus, and we’ll talk a bit about what that will look like in practice. But first --
Andrew Weissmann: Drum roll.
Mary McCord: A new name for what we’ll do here. Main Justice. Now, we need to tell people what the heck main justice means. And let me just start out before I toss it to you by mentioning that Attorney General Loretta Lynch and other attorneys general have often said that justice is the only cabinet level agency named after an ideal. So think about, we have the Department of Commerce, Treasury, Transportation, right? It’s kind of obvious what those things are. Justice is an ideal and that’s something we, I think hope will stay an ideal that we’re all moving toward. But main justice, why are we calling this Main Justice, Andrew?
Andrew Weissmann: So it’s a little bit of an insider word.
Mary McCord: It is.
Andrew Weissmann: Because we’ve talked about how the Department of Justice is very, very large. And while there are offices around the country, and those are called field offices or regional offices, and they’re in the United States Attorney’s offices and in FBI offices in every single state of the union. But what is main justice? Main justice is in Washington. And it is the main building that is in Washington, D.C. That is where the attorney general sits. That is where the deputy attorney general sits. The Civil Rights Division, the Environmental Division, the Criminal Division, the National Security Division, which Mary, you know very well. So when people inside the Department of Justice speak about the department, they either will say something like, the DCU’s attorney’s office where you worked, or the Eastern District of New York where I had worked. But we’ve also worked at main justice.
Mary McCord: Right.
Andrew Weissmann: And so when we thought about the title, we really thought we’re going to take you sort of inside the building and cover what is happening at main justice. And Mary, to your point about the broadening of the scope of the podcast, we really thought about, one, our expertise, which is really about our time not just in the field offices, but at main justice and really knowing the building, which is also one of the things people talk about.
But it has its hands in so much that goes on because the legal regime and justification for what the administration is doing, whether it’s, as you said, the Commerce Department or the Department of Homeland Security or the Department of Defense or the CIA or the State Department or just what the White House wants to do, all of that ends up when there’s any sort of legal issue coming into the building of main justice.
Mary McCord: That’s right. And it’s not just to litigate. It’s not just if things are challenged. But before the administration takes action on things, even parts of the administration that are not justice, like you said, right? You know, Commerce, Treasury, State, DOD, et cetera. Things have to get sort of blessed legally. And even though each one of those cabinet departments has their own general counsel’s office or legal advisor’s office, they still coordinate with DOJ because DOJ ultimately would be the one defending the actions of the administration.
And so we thought going into 2025 with a new administration, and in particular with the Trump administration and all the things that he said during his campaign, as well as that his allies and some people who he intends to bring into his administration have said during the campaign and now in this transition period about what this new administration is going to do, those are all things that DOJ either publicly or not publicly be weighing in on. And so it seemed fitting to us that should be our focus. It’s a big focus. It’s a big bit of business. I’m a little nervous about how we’re going to digest all this and bring it to listeners, but also excited to be able to do that.
Andrew Weissmann: So I have two quick thoughts. One, going back to something you said, which is Loretta Lynch’s comments about this being an ideal that on the outside of the main justice building in its limestone facade is the phrase that comes from John Locke, where law ends, tyranny begins.
Mary McCord: That’s right.
Andrew Weissmann: And that gives you a sense of how it views its mission. And it’s why its mission is viewed as separate and apart, at least as a norm, from politics, from the executive branch and Congress. I mean, Washington is such a political place. And this is trying to say no law stands apart and is dispassionate and everyone’s equal before the law. Those are ideals. And there’s no question that our history in that regard is checkered. But that is what the aim is supposed to be. The other part just about the scope is it reminds me a lot of when I got to the FBI, where it was the General Counsel, because I had been in the criminal division, either at main justice or in our field office. And that’s a narrow --
Mary McCord: Right.
Andrew Weissmann: I mean, it seems huge when you’re there --
Mary McCord: Yes.
Andrew Weissmann: -- because it’s like, oh, the criminal law is so big, and there’s so many things that you could tackle, from bank fraud to terrorism to child predators, and there’s so much criminal law. But I get to the FBI --
Mary McCord: And you’re like, oh --
Andrew Weissmann: -- and it’s like.
Mary McCord: -- it’s a lot bigger than that.
Andrew Weissmann: Oh my God, there’s civil rights, environmental, just all sorts of issues that the department weighs in on. So in many ways, when I was sitting at the FBI, I was sitting there going, oh my God, I have the full panoply of like what’s going on at the department without all of the people.
Mary McCord: Yes.
Andrew Weissmann: You know, I was just like, okay, holy --
Mary McCord: Yeah.
Andrew Weissmann: -- yeah, how am I going to do this? So that is in many ways is what we’re going to try and do, is bring to you what are the most salient things that are going on at the Department of Justice. And some of it will be sort of very, very legal and similar to what we’ve been talking about and others. It’s going to be a much broader aperture --
Mary McCord: Yes.
Andrew Weissmann: -- into what we’re seeing.
Mary McCord: And last comment, because we’ve been talking about the focus, which is important, but you did also allude to the building, right? So main justice is also what everyone at the Department of Justice and really in government refers to as the headquarters building at 950 Pennsylvania Avenue, Northwest in Washington, D.C. It takes up an entire block. It is labyrinthian. It is very big, not as big as the Pentagon by any stretch, but it is still a large building and it’s very easy to lose your way inside that building.
Andrew Weissmann: I just totally got lost. Great.
Mary McCord: Oh my gosh. I knew like how to get from --
Andrew Weissmann: Yes.
Mary McCord: -- the garage to my office and very little else.
Andrew Weissmann: Right,
Mary McCord: And I had one way in and one way I could go out, but if it was something other than those two ways, I really couldn’t find my way. And it sits directly across Pennsylvania Avenue from the Hoover building, which is the FBI headquarters. And we have talked before, Andrew, about the morning FBI directors briefings of the attorney general and deputy attorney general on really national security issues. And sometimes like under Director Mueller, those were five days a week. Under Director Comey, when I was in the national security division, they were three mornings a week.
But we would essentially, well, the AG and the DAG, and people are going to have to get familiar with the term DAG. The DAG means Deputy Attorney General. And we’re going to be using that term a lot. The AG, the DAG, the head of national security, assistant attorney general, which I was at one point, but also Principal Deputy Assistant Attorney General, which I also was at one point, and a few other people go across the street to the FBI, go into a SCIF, right, a Sensitive Compartmented Information Facility where classified information can be discussed and talk about national security issues, really get a recap of the president’s daily brief that the president will already have gotten earlier in that morning.
So that relationship also is something that I think is important for people to understand because we’ve talked about national security many times on this podcast, even in, you know, one of the major criminal cases against Donald Trump was a national security case. And it’s important to understand that sort of interaction between the FBI, DOJ and the White House when it comes to national security. And I’m sure we’ll have much more to say about that as we go on.
Andrew Weissmann: Yeah. And including just all of the different divisions because we largely, as you noted, have been talking about the National Security Division and the Criminal Division and the overlap also of those two. But there’s so many other --
Mary McCord: Yes.
Andrew Weissmann: -- components. It’ll be fascinating to see what happens in civil rights and in antitrust and environmental. I mean, there’s so many different pieces of this, but also what’s coming from outside into the agency for review. The other just quick thing to note is that a lot of times what the DOJ and the main justice people think about is the law. Like, is this legal? What are the upsides? What are the pros? What are the cons in terms of legal risk? They also often are asked to weigh in on the policy --
Mary McCord: Yes.
Andrew Weissmann: -- issues. And so deciding is this wise, not just is it legal.
Mary McCord: That’s right.
Andrew Weissmann: And so we’ll be talking about that as well. So again, it broadens the scope. But having said all that, and this is such a great segue because here we’re talking about this broader scope. But Mary, you and I have been talking about what this episode should be and introducing the new name and the broader focus that we’re going to be engaging in 2025, but the last 48 hours --
Mary McCord: Oh my gosh, it’s like blockbuster.
Andrew Weissmann: Right.
Mary McCord: Including breaking it like 11:00 p.m. last night.
Andrew Weissmann: So yes, both of us are a little blurry.
Mary McCord: And we’re going to get to all of that after the break, but before we take a break, just a note, you can still find us in the same “Prosecuting Donald Trump” feed wherever you get your podcast. It’s just that the name has changed to “Main Justice.” So if you’re currently following the series, you’ll continue to get new episodes weekly. And if you don’t follow, consider following us at “Main Justice” moving forward. So when we return, we’re going to hit this blockbuster news. We’re going to talk about Trump’s efforts now, and this is what was happening at 11:00 last night to prevent Jack Smith’s final report from being made public. We’re going to talk about Judge Merchan’s decision not to grant a stay of the sentencing, talk about lots and lots of things. So join us after the break.
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Mary McCord: Welcome back. Well, as promised, we are now going to talk about the things literally that have happened in the last 48 hours, as well as some of the things that happened over the break that we didn’t get to. But let’s start with frankly the latest breaking news before we move up to Manhattan and talk about what’s been happening in the district attorney’s case there with Judge Merchan setting a sentencing date, rejecting Donald Trump’s motions to dismiss the case, and now rejecting his motion for stay.
Before we dive into that and all that was said there, let’s start with what was happening late last night. There was a filing by Walt Nauta and Carlos De Oliveira’s counsel in the Mar-a-Lago case. Now remember, that case has been dismissed by Judge Cannon. That dismissal is on appeal to the 11th Circuit, an appeal brought by the special counsel, but the special counsel dismissed the appeal as to Donald Trump based on Department of Justice binding guidance that a sitting president cannot be prosecuted, but did not dismiss the appeal as to those two co-defendants.
So the dismissal of the case on the grounds that Jack Smith was unconstitutionally appointed as a special counsel, that is pending on appeal, which means if that’s reversed, those two men could still be prosecuted before Judge Cannon. Now, of course --
Andrew Weissmann: Wait, reality check here.
Mary McCord: That’s what I was just going to get to. So give us the reality check. Yeah.
Andrew Weissmann: On January 20th, Donald Trump is going to, at the very least, order his Department of Justice to dismiss that case, probably with prejudice --
Mary McCord: Probably.
Andrew Weissmann: -- not without prejudice. So that case is going to be over on the 20th, or as we say here --
Mary McCord: Twenty-first, yeah.
Andrew Weissmann: -- a New York minute after that.
Mary McCord: Yes.
Andrew Weissmann: So it’s sort of so fanciful to be thinking about, oh, this report could prejudice them in any trial that would be coming because that’s not going to happen.
Mary McCord: Yeah. But that’s their argument. What you just said is they’re going in front of Judge Cannon and they’re asking Judge Cannon in an emergency motion to preclude the government from issuing this purported special counsel report. And they’re arguing, you know, Jack Smith was unconstitutionally appointed, yada, yada, yada so the report shouldn’t come out, but that we would be prejudiced by it. But attached to that, and in some ways, the more telling piece of this is attached as an exhibit to that motion is a letter that was sent by Donald Trump’s attorneys yesterday as well, a letter to the Attorney General Merrick Garland, asking, actually not asking, demanding the words in the first sentence, we write on behalf of President Trump to demand that Smith, doesn’t call him special counsel, note that, that Smith terminate all efforts toward the preparation and release of this report, the draft report.
Andrew Weissmann: So one thing that’s notable from what you’re saying is it’s important to note what we do know from these filings is that the report has two components to it. And presumably that is because one part of the report will be about the January 6th --
Mary McCord: That’s right.
Andrew Weissmann: -- indictment and the other will be about the Mar-a-Lago case. And the reason that’s important is because Mary, when you’re talking about this, you could understand why Judge Cannon would have potential jurisdiction with respect to any of the sort of so-called pre-trial publicity issues with respect to the part of the report on the Mar-a-Lago case. But the request before her is to actually prevent the entire report, both parts. But it’s hard to see how De Oliveira and Nauta, the two defendants who could potentially, I mean, again, with the putting on our fiction hats --
Mary McCord: Yes. Right.
Andrew Weissmann: -- could potentially face an upcoming trial, how that could go beyond just the part of the report. And this is where I can tell you from my experience working on the Mueller investigation, we had these sort of pieces that were still ongoing, whether it was an investigation that we handed off to a U.S. Attorney’s Office, potential defendants or actual defendants who were still pending. And what we did is we just sanitized the report to take out that material, redact that material so that it would not prejudice them. It’s hard to imagine that is not something that Jack Smith did with respect to the part of the report that deals with the Mar-a-Lago case.
But having said that, I do think it would be hard to do that completely with respect to the Mar-a-Lago case. In other words, if there really were going to be a trial of Walt Nauta and De Oliveira, I do think it’d be hard to sanitize completely that report. Because when you talk about Donald Trump’s role in that --
Mary McCord: Right.
Andrew Weissmann: -- it’s going to be hard to disentangle.
Mary McCord: Experience (inaudible) wise. Yes.
Andrew Weissmann: So, I actually do have, I can’t say, of sympathy, but I do think if there really were going to be a trial, I do think you’d have to be very careful about how you would deal with this. That doesn’t mean the same for the part of the report about January 6th.
Mary McCord: Right. And as you were indicating, when the Mueller report came out, right, there were still more prosecutions being considered that were part of that lengthy report. And as that special counsel office and your role there wound down, you all sort of referred those pending matters or those recommended matters out to U.S. attorneys’ offices, right? And so to the extent that as you were just indicating that anything in the report could have been prejudicial to those who still potentially face prosecution, because there were prosecutions, certainly not of Donald Trump, related to the Mueller investigation, but there were plenty of other prosecutions and that you were involved in and that others were involved in. That’s how those kinds of things were handled.
So like you say, this would not be an unusual thing to do. Nevertheless, you know, they’re coming to Judge Cannon, like you said, just asking for the whole report to be stopped, not just the parts related to them or to Mar-a-Lago. Now, Donald Trump, of course, and the only reason, to my knowledge, that we are aware of his letter is because of it being an attachment to the motion filed before Judge Cannon. But this letter, of course, on behalf of Donald Trump, is saying none of this report should be made public and is making a few different arguments. One, that Smith lacks the authority under the Constitution to issue a report because he wasn’t validly appointed, right. This is the same argument that Judge Cannon accepted in dismissing the Mar-a-Lago case.
He goes on to say the draft report violates fundamental norms regarding the presumption of innocence, including with respect to third parties, unnecessarily impugned by Smith’s false claims. I’m reading directly from the letter. Again, that’s kind of not really Donald Trump’s argument to make. That’s an argument for others who might be harmed to make, but of course he can make it. And then he’s going on to say that preparing a report and releasing it to the public would violate the Presidential Transition Act and presidential immunity doctrine. These are the same arguments essentially that Donald Trump has made in the Manhattan case, the Alvin Bragg case, about why that case has to be dismissed post-verdict during this presidential transition period, because he’s arguing that even as president-elect, he has absolute immunity.
And essentially here, Trump is saying, this report would violate those same principles, even though a report, of course, not a prosecution, and that’s the only thing we know that cannot happen to a sitting president. And then I think the language gets pretty --
Andrew Weissmann: Heated? Heated.
Mary McCord: Heated, yes, yes. And let me just read it, but let me take a sip of tea because I’m losing my voice.
Andrew Weissmann: Okay, so while you do that, I’m going to take note of something because it sounds so familiar to something we heard. It feels like a lifetime ago when our report was not yet public, but --
Mary McCord: The Mueller report you’re talking about, right? Yes.
Andrew Weissmann: Yes. The Mueller report was not yet public, but Attorney General Barr had it and then he issued his purported summary.
Mary McCord: Yes.
Andrew Weissmann: So you’ll note that in the first sort of real substantive paragraph of the letter by Todd Blanch to the attorney general, Attorney General Garland, dated January 6th. He says, quote, “rather than acknowledging, as he must, President Trump’s complete exoneration, Smith now seeks to disseminate an extrajudicial final report to perpetuate his false and discredited accusations.” So, complete exoneration.
Mary McCord: Right. I don’t recall that. Do you recall that happening?
Andrew Weissmann: No. I don’t recall that. What I do recall is a grand jury having found that there’s probable cause for these charges, not once but twice, because there was a superseding indictment. I don’t see anything saying these are discredited accusations. What I do see is the defendant, as is his right, trying to delay any trial and being successful at those efforts. Again, he has every right to try to do that, but to call that a complete exoneration and discredit it. This is from someone who is proposed to be the Deputy Attorney General of the United States.
Mary McCord: That’s great.
Andrew Weissmann: So, that’s how that letter starts and it’s filled with that kind of language. But, Mary, I --
Mary McCord: Well, the rhetoric I was about to read before I was about to cough. Sorry, folks, I’ve got bronchitis. That was my holiday gift. Says, finally, the release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases. And I highlight that language because as you just indicated, the person who wrote this letter, Trump’s current personal defense counsel, is slated to be the Deputy Attorney General of the United States of America.
And this type of rhetoric is not anything I have ever, ever seen by the Department of Justice. So whether the dial is going to get turned down after January 20th, if in fact Todd Blanch is confirmed, remains to be seen. But I think the dial has turned up significantly since the election in terms of the rhetoric in filings by people who Trump has said he will nominate to be in the leadership of the Department of Justice. And to culminate all of this and to get back to the points you were making and where you were reading for what Donald Trump is asking Garland to do, is remove Smith. If he’s not removed, then the handling of his report should be deferred to President Trump’s incoming attorney general, consistent with the express will of the people.
And finally, says Donald Trump’s attorneys, should you disagree with the position set forth below, we respectfully request notice of that decision prior to the unlawful release of any report so that we can pursue injunctive and other relief to protect the rights of President Trump. So this is pretty typical. Every time they want something, they then say, and tell us right away, immediately, rule on it, so that we can take further action, whether it’s seeking an appeal, or in this case, seeking an injunction in court, or what have you.
Andrew Weissmann: So I think there’s a couple things to talk about. One will be in Florida, sort of like, what’s the next step, what can we expect? But going to just the letter to Attorney General Garland, I think it’s complicated in one respect. So much of it has been decided. It’s something that Merrick Garland is not going to agree with. But I want to make sure people understand the complication and nuance with respect to a report. First of all, the report that’s issued by Jack Smith is a private report.
Mary McCord: That’s right.
Andrew Weissmann: By regulation, it is private and given to the attorney general. And so in many ways, the letter’s a little off here because the decision to release that publicly will be the attorney general’s decision.
Mary McCord: That’s right.
Andrew Weissmann: That’s what happened also. with the Mueller report. I mean, it was only with the approval of the attorney general that it could be made public. So this is really an application to Merrick Garland saying he shouldn’t have the ability to even write the report, but if he can, that you should not make it public is really what they’re saying.
Mary McCord: I thought that was weird too, because they act like it’s all up to Jack Smith.
Andrew Weissmann: Yeah.
Mary McCord: And you guys know that’s not the case, right?
Andrew Weissmann: Yeah. And it’s not how the regulations work. But I think the complication here is that under normal rules of the Department of Justice, for a typical prosecutor, you do not make extrajudicial statements about somebody who is under investigation, especially if you’re not going to bring a case. Even if you do bring an indictment, there’s limitations on what you can say. Those really only go away sort of after the trial’s over.
Mary McCord: That’s right.
Andrew Weissmann: And even then, it’s not totally going away. So that’s sort of the standard rules. That’s what we’ve talked about, what you and I and many others were upset with James Comey, making statements about Hillary Clinton when it was about, let me just talk about why we didn’t go forward but denigrate her at the same time.
Mary McCord: That’s right.
Andrew Weissmann: That’s just not usually done. Now, the reason this is a different situation is one, the special counsel rules themselves talk about a report and attorneys general have in the past pretty routinely issued these.
Mary McCord: Across both parties.
Andrew Weissmann: Yes.
Mary McCord: The Mueller report was released under Bill Barr during a Trump administration.
Andrew Weissmann: Exactly.
Mary McCord: And that had many things that were not favorable to Donald Trump and others in it. And while it didn’t say what the conclusions were, it did have a lot of facts that were damaging. You have the special counsel Hur’s report --
Mary McCord: That’s right.
Andrew Weissmann: -- with respect to Joe Biden, which also had a lot of information that was damaging to the current president --
Mary McCord: That’s right.
Andrew Weissmann: -- and conclusions about an assessment made by Special Counsel Hur. I’m sure that we’re going to see a special counsel report from David Weiss with respect to Hunter Biden. I shouldn’t say I’m sure, but I would suspect that.
Mary McCord: And I’d note on that, Andrew, that Merrick Garland did commit with these various special counsels appointed, Robert Hur, to investigate, and this was an investigation of Joe Biden about potential mishandling of classified information, right? He committed that he intended to make public, to the extent possible, right, consistent with national security, et cetera, the reports of all special counsels during his tenure.
Andrew Weissmann: Exactly.
Mary McCord: And so, as you indicated, there were some things very unfavorable toward Joe Biden in that report.
Andrew Weissmann: Right.
Mary McCord: Ultimately, Robert Hur concluded that there shouldn’t be a criminal prosecution, that it wasn’t warranted, but he denigrated his memory and things like that, as people may recall. So in this area, as you say, it’s different than the normal process, and that’s because of the regulations, but it also promotes some transparency for attorneys general. And I think that’s why they’ve done it historically to have a classification review, redact things that are classified, redact things that are grand jury material, redact things that need to be redacted, but to otherwise show what it is that the investigation produced to the American people.
Andrew Weissmann: And I will say, to just be super in the weeds on this, that the special counsel regulations don’t really deal with this issue because they deal with the special counsel gives a private report to the attorney general. But this is an issue of when does the attorney general make that public. And the sort of de facto practice has been because you’re appointing a special counsel usually in a matter of such interest to the public, that it sort of overrides normal practices --
Mary McCord: That’s right.
Andrew Weissmann: -- that there’s a public interest in knowing this. And usually you’re dealing with people who have an enormous bully pulpit and have the ability to speak out and to give their side of the story. But this is like an area where I do think there’s a legitimate debate. If you took Donald Trump out of the equation, the discussion about when things should be made public, what should be in there, should there be this exception is, I think, a legitimate --
Mary McCord: Agree.
Andrew Weissmann: -- issue and topic, but I don’t know that this brief handles it all that well, but I do think it’s a fair thing to raise. The final note on that is it’s worth noting here the irony that this is not a situation like Hillary Clinton. There were not one but two indictments in D.C. There’s an indictment in Florida.
Mary McCord: Right.
Andrew Weissmann: So it’s not like this is the department having unilaterally decided that there was a crime here. You have all these grand jurors who found at least by probable cause that crimes were committed as charged. So that puts it also in a different category. And you have the defendant having done everything he possibly could not to have his day in court. So to say it’s unfair because I have no ability to defend myself, that’s the normal idea --
Mary McCord: Yeah.
Andrew Weissmann: -- which is I don’t have an opportunity to have my day in court. It’s like, what are you talking about? You’ve spent years trying to not have your day in court. So it comes with sort of poor grace to say this would be unfair to me, given his unusual ability to have a bully pulpit and he did have the opportunity to vindicate his rights at a trial and elected not to. But then to say, I just don’t want a public accounting of this in a more fulsome way is one that I think just from now putting on sort of my, I used to be a history major. I think these reports are very important, not that they shouldn’t be challenged, but I do think from a historical perspective, you do need to have what at least is going to purport to be and is going to be backed up presumably by lots of hard evidence, a fulsome record so that for history there is an accounting of what happened and people can go to it to the extent that facts still matter to people.
Mary McCord: Yeah. Well, that’s kind of the perfect segue into our break. And when we return, we will shift gears and go up to Manhattan, your neck of the woods, and talk about what’s going on in the Alvin Bragg case. Judge Merchan has issued a flurry of rulings in the last several days, and we’ll talk about those.
Andrew Weissmann: Yeah, and let’s spend just a couple of minutes on what you think is going to happen in Florida, because I think the Judge Cannon piece is going to be super interesting. But let’s take a break.
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Andrew Weissmann: So Mary, before we turn to New York and coming up to my neck of the woods, in truly breaking news today, we have Judge Cannon actually issuing a temporary order staying any dissemination or public release by the Department of Justice of the draft report. And so that precludes Jack Smith or anybody in the department from going forward. But there’s a little more nuance to that because one of the things that also happened today is the two co-defendants, Walt Nauta and Carlos De Oliveira, also filed the same application they filed before Judge Cannon. They also filed this morning in the 11th Circuit.
So one thing that Judge Cannon says is, look, this is a temporary order, putting everything on hold, pending whatever the 11th Circuit decides and tells me to do. So it’s sort of freezing everything. But the real action now is in the 11th Circuit. And so that actually allows Jack Smith to make his filings to the 11th Circuit and not just to Judge Cannon because the 11th circuit is now involved. That’s probably pretty good news from Jack Smith’s perspective. Of course, we don’t know what the 11th Circuit will do, but that is now where the action is.
But in the meantime, to the question I got last night from Lawrence O’Donnell, which was, can Merrick Garland just simply issue the report while this motion is pending? The answer, that’s all moot now because there actually now is that court order. Notably, final point, the judge issued it as to the entire report, not just as to the part that deals with the Florida case. And that part seems like the weakest thing and that you could be pretty sure that Jack Smith’s going to say, even if you were to have a stay going forward, it should not be as to this part.
Just remember folks, the 11th Circuit could rule and the Supreme Court could still get involved. And there’s a way they could get involved that sort of kills this through inertia. Because if they allow the stay to stay in place until the 20th, that’s the ball game, right? Because at that point, there’ll be a new president and he can just direct the department to never issue that report. So that’s the latest.
Back to New York. You know, Mary, it feels like there’s so much that’s come out, but I don’t think that we’ve even noted that. But of course, it’s highly public now that Judge Merchan, in a lengthy decision, said that there is going to be a sentencing this Friday. And he did say, in connection with that sentencing, that his current inclination, he’s not making definitive ruling, is that this would be an unconditional discharge, meaning the lowest possible sentence. And just as a practical matter, just so people understand, he sort of had two options, two realistic possible options, not what Donald Trump wanted.
Donald Trump, of course, was like get rid of the case completely, which, you know, again, I don’t fault him. That’s like a defendant swing for the fences. But if you’re the judge, he had an option of putting it off for four years, at which point I think it’s hard to think that he would be thinking about jail time, like that much down the road for, well, these are serious offenses. It’s not crimes of violence. And it would be dangling for so long. This way, if he’s going to try and get it done before the 20th, I think this was his only practical way to actually go forward. So that was sort of his decision to do that. And then in the interim --
Mary McCord: Well, hang on, before we leave that, let’s just be sure people realize the context that came in, folks will recall, because I think we talked about this briefing before the holidays, was in a motion to dismiss the case on the grounds of interest of justice and under sort of New York law and the grounds that legally it couldn’t go forward under New York law. And this was after Judge Merchan had already denied the motion to vacate the jury’s verdict on the grounds that official acts evidence was introduced at the trial of what even Trump admitted were unofficial acts.
In other words, he was being tried for things unofficial, but they were relying on the immunity decision which prohibits even evidence of official X being used to prove unofficial X. He had filed a lengthy motion saying the jury’s verdict should be vacated because official X evidence came in. The judge had denied that already. So in last Friday on January 3rd, when he ruled and set the sentencing, it was in the course of denying the other motion to dismiss the case. And that was based in many ways, I mentioned it’s based on sort of New York law that allows for dismissal when something is without legal authority or in the interest of justice.
And the argument there was, even as president-elect, I should benefit from the sitting president immunity rule, which is that a sitting president cannot be prosecuted for a crime. Judge Merchan says there’s actually no really authority or rationale or reason for that and you’ve pointed to nothing. And we’re in a very different posture here than in a pre-trial situation. We are in a posture where the jury has returned a verdict and he makes the point multiple times in his opinion, Andrew, and I know you’ve emphasized this in other forums about the need to respect the jury’s verdict. And so for the judge, he is very clear that he thinks there needs to be finality and that the best way for Trump to be able to take an appeal, if that’s what he wants to do is to go ahead and have the sentencing. He recognizes a sitting president cannot do their job --
Andrew Weissmann: Serve time.
Mary McCord: -- in jail.
Andrew Weissmann: Right,
Mary McCord: So he’s saying it’ll be an unconditional discharge. Unconditional discharge is exactly what it says. I’ve looked at the statute --
Andrew Weissmann: Yeah.
Mary McCord: -- you’re a New Yorker. It’s like nothing, you don’t report to a probation officer. You don’t have any restrictions on your travel.
Andrew Weissmann: There’s no fine, right, zero.
Mary McCord: Zero, you’re just discharged. But you stand convicted. And what’s so interesting to me is that of course now Trump has rushed in saying, you can’t sentence me. That would, again, violate this sitting president and president-elect immunity. And there’s no option that’s acceptable to Donald Trump other than dismissal because he had opposed, you mentioned one option was to abate the sentencing for four years. He had opposed that because it would be hanging over his head for four years, and what he said was in violation of sitting president immunity.
Now he’s opposing sentencing before because then that having been through that sentencing is in his mind violating this idea of immunity. But he’s also saying we need to not have the sentencing now because we need to exercise our rights to appeal Judge Merchan’s denial of all of these motions I’ve just been talking about, the motion to vacate the jury’s verdict, the motion to dismiss, we need to be able to appeal that before we go to sentencing because this is about immunity. And what’s so ironic to me about that is what does that do? That prolongs the criminal proceedings while he’s the sitting president. So the very thing he seems to be arguing that can’t happen while a sitting president, he himself is saying, I want to have this appeal.
Andrew Weissmann: Absolutely. So, normally a defendant who has a judge saying, you know, I’m thinking of giving you not just no time, but like no conditions whatsoever, would say, I want to grab it and growl.
Mary McCord: Thank you.
Andrew Weissmann: Right? I mean, if you’re the defense lawyer, you’re like, yeah. Oh, let’s see, you want to do everything but dismiss the case, but give my client zero on everything?
Mary McCord: And it also doesn’t mean he can’t appeal ever all those other issues. He can. He just gets sentenced first. That’s right.
Andrew Weissmann: Right. Exactly. So what’s going to happen, which is just so weird, is he just wants to not be sentenced.
Mary McCord: That’s right.
Andrew Weissmann: But he’s going to continue to try to appeal this all the way up to the Supreme Court, just not be sentenced. So either way, there would be all of this appellate litigation --
Mary McCord: While he’s president.
Andrew Weissmann: -- whether he is sentenced and then appeals --
Mary McCord: Yup.
Andrew Weissmann: -- or whether he’s not sentenced and appeals. But thinking about this, I think he’s just thinking, I don’t want a day in court. By the way, the judge says he doesn’t even have to show up. He can do this remotely. And I think he just doesn’t want that appearance of his defense lawyers will make arguments, the government will make arguments, the state is what they’re called in New York, that’s the government. But then the judge will make various findings, which the judge has put in writing, but there would be a very bad news day with the judge making various statements and talking about.
And Judge Merchan, by the way, has been, I think just his decisions have been beautifully written, but has talked about when Donald Trump says, well, you should dismiss the case because of my character. That is sort of leading with your chin because the judge said, it is public record. It is public record that you have denigrated the entire legal system, judges, witnesses, grand jurors, trial jurors. You were held in contempt repeatedly and that does raise this issue to take it back to what we were talking about before the break, the judge’s footnote where he chastises the rhetoric of the defense counsel.
And just to be clear, the judge doesn’t specifically by name say I’m talking about Emil Bove and Todd Blanch, but If you’d followed the trial and the judge’s comments during the trial, it seems like a really fair inference that is exactly who he means because he never made those comments about the government council. And he cites the Chief Justice of the United States, right. And the Chief Justice was citing Justice Ginsburg. So you sort of have both the Chief Justice and Justice Ginsburg talking about the need for respect for the law and respect for the courts.
And you think about the position that if you are in the department, and the leadership of the department, you have to have a respect for the law and a respect for the courts. But you’ve got a president who is a felon, whether sentenced or not, we know that nothing about that changes the jury verdict, right? And that tension is one that we, on this podcast, are going to be spending a lot of time talking about, like how you navigate that. And what I’m hoping for people like Todd Blanch and Emil Bove is that although you and I have talked about that even as defense counsel where our obligations different, we think this is sort of over the line in terms of how the language they’re using.
But I would hope that what they do when they are at the department, which they surely I think will be there, is realize they’re in a different role. And that in that role as the government, there are different expectations as to how you behave and the language you use and the decorum.
Mary McCord: And they’ve both been in government before.
Andrew Weissmann: Absolutely.
Mary McCord: They’ve both been prosecutors. So they know this way of not using hyperbole, not using rhetoric --
Andrew Weissmann: Right.
Mary McCord: -- when you are representing the government. We’ll see if they can dig back to those roots when they get into the Department of Justice.
Andrew Weissmann: And maybe under a lot of pressure --
Mary McCord: Yes.
Andrew Weissmann: -- to not do that. And so it’ll be interesting. I mean, they both were raised in an office that’s one of the great offices in the country where there is that tradition of apolitical decisions and decorum and holding yourself to a high standard. So it’ll be interesting to see and for us to be monitoring that with all of our listeners.
Mary McCord: That’s right. So Judge Merchan denied the flurry of emergency motions yesterday to preclude the sentencing on Friday. He denied that. And so that is something that I expect Trump will be taking an emergency appeal on and already has, I think.
Andrew Weissmann: Yes.
Mary McCord: I mean, certainly has already appealed, noted is the video --
Andrew Weissmann: That’s in the first department.
Mary McCord: That’s right.
Andrew Weissmann: Yep, exactly. So that’s the first level review is what’s called the first department, which is part of the appellate court system that oversees Manhattan where Judge Merchan sits. And so that notice has been there. So that will probably be perfected, I would think, today with a brief.
Mary McCord: And maybe added to, right? Because that was originally --
Andrew Weissmann: Yeah.
Mary McCord: -- the notice of appeal of the substantive decision. And now he’s going to be saying, now I’m also appealing the denial of the motion to stay --
Andrew Weissmann: Yes.
Mary McCord: -- the sentencing, right? So then he’s going to be trying to do it on a much faster emergency basis and by the time we’re here next week, we’ll either know whether it got stayed or didn’t. A few other things just to mention before we close out today and there’s so much more we can talk about. You mentioned the Chief Justice’s own statements about respect for the courts. This came in his annual end of one year New Year’s message that he puts out every year and I think we’ll want to come back to that because --
Andrew Weissmann: Yes.
Mary McCord: -- he lamented about threats and intimidation and violence against judges, but he also raised a flag about political actors threatening to defy court rulings and what a horrible precedent that would be. Now, it’s not unprecedented because we can go back to the civil rights era post Brown v. Board of Education. And of course, the chief justice talks about this when states defied the Supreme Court’s ruling. And he’s actually saying, we don’t want to go back to that. There needs to be respect for the rulings of the court. And I think that’s something we’ll be talking about probably a lot over the next few years.
And then the other thing just to flag for listeners that we had actually thought we’d spend a whole segment on until all of this stuff happened in the last 48 hours is, there’s a big argument coming up on Friday. We talked about it with Dahlia Lithwick because it was so expedited. This is argument in the Supreme Court over whether TikTok by virtue of a statute passed on a bipartisan basis and signed by President Biden last April that requires TikTok to divest from its foreign ownership for national security reasons. That case has gone to the Supreme Court. It will be argued on Friday. Highly expedited briefing. Briefs were due simultaneously by both sides two days after Christmas.
Andrew Weissmann: Gee, what is that unlike?
Mary McCord: Yes. Yes, exactly. What is that unlike?
Andrew Weissmann: So our loyal listeners do not even need us to fill in the blank.
Mary McCord: That’s right.
Andrew Weissmann: But this is a good example of when the Supreme Court wants to act quickly, it certainly knows how.
Mary McCord: It does. And part of that is because January 19th is the statutory deadline for this divestment. And this raises First Amendment issues and it raises national security issues. And it’s a very interesting substantive case. But what’s also interesting is that Donald Trump came in --
Andrew Weissmann: Yeah.
Mary McCord: -- filed his own motion in the case, not even a motion to intervene, takes purportedly no position on the merits of the First Amendment arguments, even agrees there are national security concerns involving TikTok and its ties to the government of China and China’s ability to require all Chinese companies to provide data that they may collect on private individuals to provide that to the government. That’s where the national security concerns are. He comes in and says, stay the operation of this statute and let Donald Trump try to resolve this politically after he’s the president.
That’s an extraordinary thing because for a court to stay a statute, they have to find that the statute is unconstitutional or on an emergency basis is likely to be found unconstitutional or unlawful beyond Congress’s authority and then could stay it while it’s litigated. He’s saying I’m not taking a position on the merits. Stay it because I, Donald Trump, can fix this once I am the president.
Andrew Weissmann: So that is definitely stay tuned. And there’s a larger issue, not just Donald Trump on TikTok has flip-flopped because he was for essentially the statute before he was against the statute. And some people have noted that that correlates to support and financial support, apparently from TikTok itself. But he may have just changed his views, but in any event, we’ll be interested to see like that’s the micro issue. The macro issue there is how the government’s going to be looking at social media companies and social media in terms of what can be put out and what their social media companies can and cannot do, which is a sort of fraught topic and is a complicated topic.
But I think one of the things that we will be looking at on this podcast is the issue of disinformation and just how much the government is going to be promulgating practices that allow for disinformation and that discourage companies from exercising diligence about what’s put out on social media. I’m just previewing this because there’s so much to talk about. And there was a Supreme Court argument on a case called Missouri in this past year that dealt with this issue. So there’s a lot more to come with respect to the issues that are raised by the TikTok case and many others.
Mary McCord: Well, and you know, in some ways, it seems like some of the social media companies are not even waiting for the new administration. Just today, I learned that Mark Zuckerberg --
Andrew Weissmann: Yeah.
Mary McCord: -- at Meta says, we are discontinuing our third party fact checking and we’re going to basically use a system more like X that allows users to put comments about the legitimacy or illegitimacy or information, factual or disinformation of various posts. So I think that’s a really dangerous development and like you say, much, much more to come on this.
Andrew Weissmann: Yeah, there’s so much more to come, but I have to say the bang in advance is a --
Mary McCord: Striking.
Andrew Weissmann: -- troublesome. Yeah, it is a striking development. Much more to come. I have to say, Mary, in many ways I’m reminded of that. There was a line in a movie called “All About Eve” where the woman’s asked about like what’s this evening, and she’s giving this cocktail party and says, what’s this evening going to be like? And she says, fasten your seat belts --
Mary McCord: Yes.
Andrew Weissmann: -- it’s going to be a bumpy night.
Mary McCord: Yes.
Andrew Weissmann: And so that’s the way I sort of feel about 2025. It could be a very bumpy night, but I can’t think of anyone better to go through it with than you.
Mary McCord: Same here. I’m glad actually that we have this weekly chance to make some sense of things or not. Oh my.
Andrew Weissmann: Okay.
Mary McCord: Okay. We’re trying to end on a happy note.
Andrew Weissmann: Right.
Mary McCord: We’re excited about the new podcast. We’re excited to keep talking to our listeners. We’ve heard lots of really good feedback already that we’re continuing and we’re so happy about that.
Andrew Weissmann: Thanks for listening. And a reminder, you can still find us in the same “Prosecuting Donald Trump” feed. It is just called “Main Justice” now. So, if you currently follow the series, you’ll continue to get new episodes weekly. If you don’t, please, think about following us at “Main Justice” moving forward. And remember, you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC originals ad free, as well as subscriber only bonus content.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934, or you can email us at our new show e-mail address, mainjusticequestions, that’s all one word, mainjusticequestions@nbcuni.com. This podcast is produced by Vicki Vergolina. 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 for content strategy at MSNBC.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcasts and follow the series.