There’s a lot to unpack around Donald Trump’s ongoing criminal and civil cases after he won last week’s election. To begin with, veteran prosecutors Mary McCord and Andrew Weissmann explain why Judge Merchan agreed to the joint request to put off today’s decision on the impact of immunity in his hush money case. Then, they dig into the constitutional arguments against prosecuting a president while in office, whether federally or as a state prosecution, and how that might also relate to sentencing in New York. Next up, Andrew and Mary illustrate how Trump’s win might impact his civil cases, to include both E Jean Carroll cases and his New York civil fraud case. And wrapping up, the duo reflect on the efforts by those convicted in J6 cases to have them dismissed or stayed, as they await a potential pardon by the president-elect.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome back to “Prosecuting Donald Trump.” It is Tuesday morning, November 12th. I’m Andrew Weissmann. And I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: We’re starting a little late because both of us were quickly reading Judge Merchan’s recent order adjourning. This is one where, per our last episode, which was basically doom and gloom, because we basically went through quickly the four criminal matters with respect to Donald Trump, and gave sort of a quick prognosis. Today, you know, we’re really going to be taking this deeper dive. And obviously, we both were quickly reading what Judge Merchan just did.
Mary McCord: Literally just minutes ago.
Andrew Weissmann: Exactly.
Mary McCord: Yeah.
Andrew Weissmann: So what’s in our dance card today because many people are going, what’s there to talk about? You just told us last episode that everything’s dead and gone. But what are we going to do today?
Mary McCord: Yeah. Actually, there’s a lot to talk about and that’s —
Andrew Weissmann: Yeah.
Mary McCord: — because part of the reason that Judge Merchan just agreed to the joint request of both Alvin Bragg, the district attorney in Manhattan, and Mr. Trump’s attorneys to put off today’s decision. Today, the judge was going to decide the impact of the immunity decision on the jury’s verdict and whether that verdict should be set aside. Both came in and requested he put that off. He granted that.
We’re going to talk about why he granted that and also why, what we talked about last week, Jack Smith, moving to stay all the deadlines and going to file in December about what the federal government is doing. We’re going to talk about sort of the constitutional arguments and the reasons for why it might be that a sitting president, of course, Trump’s not yet the sitting president, but he will be on January 20th, is not able to be prosecuted at least in the views of the Department of Justice and the constitutional arguments for why he may not be able to be prosecuted or serve a sentence, even a state sentence. So we’re going to talk about the law on that.
And then we’ll actually switch gears to something we didn’t get to cover at all last week, which are the impact on the civil cases. And just quick teaser here, there’s a big difference between the civil matters that are about sort of unofficial conduct like the E. Jean Carroll case and the civil fraud case brought by the New York attorney general and cases where there’s a question about whether it has to do with official conduct. And that includes the January 6th civil case brought by Capitol Police officers and representatives in Congress, et cetera.
And then we’ll also spend some time talking about the January 6 cases that involve the more than 1,500 people charged, arising out of the attack on the Capitol and some of the positions that they are taking essentially seeking to, you know, stay out of the proceedings in their cases or dismiss their cases because they expect to get pardoned.
So we’ll end with that. So there’s actually quite a lot here, but I think people will find it interesting and they’ll know just why is it that we’re even talking about these cases not going forward.
Andrew Weissmann: That is a lot. So let’s dive right in and maybe we should start with what exactly Judge Merchan did. And then, yes, it’ll be great because our listeners are going to get a sense of, I keep on saying this, but you and I don’t prepare in the sense of our comments to each other —
Mary McCord: Right.
Andrew Weissmann: — are fresh off.
Mary McCord: That’s right.
Andrew Weissmann: They’re not scripted.
Mary McCord: They’re not scripted.
Andrew Weissmann: Let’s put it that way.
Mary McCord: I think everyone is probably well aware of that by now.
Andrew Weissmann: Exactly. So, this is one where you know everything that we just said about not being scripted is true.
Mary McCord: Yeah.
Andrew Weissmann: Because it literally —
Mary McCord: It just came in.
Andrew Weissmann: — is ripped from the headlines.
Mary McCord: Yeah.
Andrew Weissmann: So just to give a quick level set, Judge Merchan was going to issue today his legal decision on, as you said, Mary, whether the Trump immunity decision in the Supreme Court resulted in there being impermissible official act evidence by President Trump when he was president that improperly infected the trial, even though the trial was about unofficial things. We’ve talked about that in the past. But that’s sort of the issue that was teed up. And he was going to issue his decision today. He had put that up once before. And he said, today’s the day. And then he said, if I were to deny that motion by Donald Trump to dismiss or to have a new trial, the new trial would be the likely result if he were to grant it, if he was to deny all of that, he was going to sentence Donald Trump on the 26th of November. Of course, what has happened since he set that schedule is the election. And so he was about to have an order issued today. You can be pretty sure he has to have written it.
Mary McCord: Surely, he would have had it written, right? So I’d be a little annoyed with him, to be honest with you, why they didn’t come and seek this like last Wednesday.
Andrew Weissmann: Yeah.
Mary McCord: It’s a whole different thing.
Andrew Weissmann: Let’s put a pin in it —
Mary McCord: Yes.
Andrew Weissmann: — as they say.
Mary McCord: Put a pin in it.
Andrew Weissmann: Well, actually not today, but there were some e-mail communications on Sunday —
Mary McCord: Over the weekend.
Andrew Weissmann: — where the parties were in communication with the court. And basically, the DA’s office in Manhattan said that the defense has raised a number of issues with respect to how the court’s actions could potentially interfere or from the defense point of view would interfere with the transition. The president-elect now is in a transition period. That is an official legal transition period. There are all sorts of things that happen under law. There’s debriefings that the president goes through on national security matters. Obviously, there’s a lot of work in terms of personnel. It’s all of that kind of stuff.
Mary McCord: They actually first said they reached out, it looks like, to the DA’s office on Friday to say, we intend to file a motion with Judge Merchan —
Andrew Weissmann: Yeah.
Mary McCord: — to stay everything. And then that’s what got the back and forth. And the DA’s office ultimately agreed to jointly ask Judge Merchan for that stay, yes.
Andrew Weissmann: Exactly. The defendant asked the people to agree to a stay of these proceedings in order to provide time to review and consider a number of arguments based on the impact of this proceeding from the results of the presidential election. And so, the back and forth then led to Judge Merchan through his clerk saying that he’s in receipt of these e-mails from both sides and that the joint application for stay of the current deadlines, including the court’s decision on this motion that we are just talking about, is granted until November 19th, so one week from today. And he said that he wants to hear from the parties by 10:00 a.m. on that date. So that means that we’re likely to have submissions from at least the people on that date.
Mary McCord: Yes.
Andrew Weissmann: That is the DA’s office with respect to its views as to the appropriate steps. It’s a little odd. It doesn’t actually say when they would hear from the defense —
Mary McCord: Right.
Andrew Weissmann: — presumably that is going to get fixed, and they would hear either on that day or shortly thereafter. But essentially, the court, for at least another week, we’re not going to hear anything. And there’s going to be the state putting forth its arguments as to whether the sentencing should go forward, whether the case should be stayed, whether Donald Trump, I’m sure, will say the case should be dismissed with prejudice, I assume, because that’s like, why not ask for the moon. And so, the decision for today is off from Judge Merchan and the parties will brief when the judge issues his decision and what should happen to the case going forward.
This is a perfect segue, Mary, to asking what’s your view of this. And particularly, I’m sort of very focused on the myopic issue of why should the judge not have issued his decision today just on the immunity part. Like I understand the issues about the sentencing, but remember that’s for the 26th. Why put the decision off on just this legal issue and his view of whether it affects the facts? Because frankly, if he were going to be ruling for Donald Trump, it’s just an odd thing. It sort of suggests to me that Donald Trump thought there’s a good chance he would not prevail on that motion.
Mary McCord: Well, I suspect that’s the case.
Andrew Weissmann: Yeah.
Mary McCord: Yeah.
Andrew Weissmann: I don’t know why Judge Merchan wouldn’t issue his decision.
Mary McCord: So to me, this is very much like what we just saw last week. In fact, we, I think, had to record a little separate little addendum after we recorded Friday morning after Jack Smith filed his motion in the January 6th case, the federal case, asking the court to put off all deadlines while he and the Department of Justice determined what would be the appropriate next steps and asked to have till December 2nd to do that. Really, I think, it was within less than an hour Judge Chutkan granted that request kind of like Judge Merchan has granted this request and put off all of the deadlines on all of the other briefing that was due and put off essentially ruling on the pending motion about the impact of immunity on that case until she will hear again from the government on December 2nd. So in both cases, state and federal, we have the prosecutors agreeing to stay everything and then let the court know what they’re going to do.
And to your question, why wouldn’t he just go ahead and issue a ruling? I think now that the parties have jointly asked him not to, he probably would feel like it was not really warranted. Let’s let the parties like decide what they want the court to do. And I think he’s probably wants to hear what the DA is going to say on November 19th and also what Donald Trump’s team is going to say with respect to sort of the implications of that ruling and further proceedings in state court for sort of our constitutional structure.
And that’s the same type of thing that Jack Smith is asking for time to do. Of course, Jack Smith is bound by an Office of Legal Counsel opinion that we talked briefly about on Friday. And we want to talk about more today that says that you cannot prosecute a sitting president, but the rationale for that 39-page opinion from the year 2000 based in large part and agreeing ultimately with the 1973 Office of Legal Counsel opinion on the same subject, reaching the same conclusion, the rationale for that could easily be applied to state court proceedings, even though technically an office of legal counsel opinion is purely binding on the federal Department of Justice.
Andrew Weissmann: You know, I was trying to figure out why. I mean, this is such a complicated issue because when Donald Trump becomes president on January 20th, because we will have a peaceful transfer of power, as you noted, there will be a at the very least, if this case is still extent, if it still is a criminal case, even if it’s paused until then, it will be stayed because of those concerns. You don’t want 50 states all being able to bring cases against a sitting president. And so, at the very least, it would be stayed. I don’t think there’s a reason it should be dismissed with prejudice —
Mary McCord: Right.
Andrew Weissmann: — unless for very separate reasons, if somebody thought, you know, the case isn’t significant enough or whatever sort of prosecutorial discretion reasons, but it normally would be stayed. And then could then, at the end of the presidential term, could come back for, in this case, decision on the Trump immunity decision and then an eventual sentencing, assuming that he’s right on the presidential immunity and the Supreme Court reviews it, that he then would have a sentencing.
It’s sort of interesting by not ruling either today or before January 20th on the legal issue, this, the one that we were expecting today.
Mary McCord: Right.
Andrew Weissmann: It does sort of remove that issue from the defense being able to sort of appeal it. And in many ways, the president-elect doesn’t have the ability to get it to the Supreme Court or do anything if he is saying, you know, just stay the case. So in many ways, it keeps it sort of there, even if it’s stayed. And so, you know, you could argue this sort of both ways in terms of what might be in the defense interest. Obviously, from the public’s interest, because of the results of the election and elections have consequences, you know, I think that it seems extremely unlikely that you’re going to have a sentencing before January 20th. And as I said, even if you were, you would certainly not have a jail sentence. But I could easily see Judge Merchan saying, I’m not going to distract the president elect from a sentencing. And at the very least, that’s gets put off.
Mary McCord: Yeah. Let’s just dive into what the constitutional basis here is, because I think it’s important and I think this is something —
Andrew Weissmann: Absolutely.
Mary McCord: — that’s going to be on Judge Merchan’s mind. So what these OLC opinions say is that both indicting and prosecuting a sitting president would essentially prevent the executive from accomplishing its constitutional functions and cannot be justified by the overriding need to promote countervailing and legitimate government functions.
So what does that mean? So what the Office of Legal Counsel did in this 2000 opinion, again, reiterating and agreeing with a 1973 opinion, one coming right in the wake of Watergate during a Republican administration. So it was a Republican assistant attorney general who issued this opinion, the other coming during sort of the Clinton impeachment episode with a Democratic administration and a Democratic assistant attorney general, actually Randy Moss, who’s now a federal judge writing that opinion. So we’ve got Republicans and Democrats in agreement, and they say really three things about why this would burden the presidency in ways that are inconsistent with our constitutional structure.
The first goes straight to this idea of a sentence, that is that a sentence of imprisonment would make it physically impossible for the president to carry out his duties. And we’ve talked about this before, because it also just seems sort of like a practical point. But you know, when it comes to the status of the New York case, putting aside for a minute getting over this motion about the impact of the immunity decision on the verdict in that case, a sentence itself, you know, there are strong arguments, constitutionally, the president could not be made to serve a sentence while president because of this burden on the office and our constitution expects the president to be the leader of the executive branch, not to mention the commander in chief. And there’s a lot that the opinion talks about how unlike other branches of government or unlike other officials, governmental officials, even the vice president, they can all be replaced with actings and this and that, you know, know heads of departments, et cetera. But the president, you know, has a function that’s really unlike any other position in the government.
The second reason is the public stigma and a program that would compromise the president’s leadership in both domestic and foreign affairs. And that, again, the conclusion is you can’t even indict. Now, here, we’re talking about a prison who already has been.
Andrew Weissmann: It’s already happened.
Mary McCord: Yeah, exactly.
Andrew Weissmann: And convicted.
Mary McCord: Yeah, that’s right. In the New York case and even in the federal case is already indicted, right?
Andrew Weissmann: Right. But in New York specifically, just since we’re dealing with this now and the specific case of New York, that program is not just the concern. I mean, it’s less of a concern because not only has he been indicted already —
Mary McCord: It’s done.
Andrew Weissmann: — so like, it’s happened, like this isn’t one where the court has to say, he hasn’t had his day in court. We have to worry about his due process rights and the program that comes with this. He has had full rights of any defendant, and many people would say more than any normal defendant. And so, that’s all been concluded. So that piece is sort of, for New York, is less relevant.
Mary McCord: Oh, I agree. And that’s going to apply to the rest of what I’m going to talk about or —
Andrew Weissmann: Okay.
Mary McCord: — we’re going to talk about when we talk about OLC.
Andrew Weissmann: Yeah.
Mary McCord: — because we’re through it, but that’s why I think that first point on the sentencing, I mean, in a way that’s for all the marbles here, right? Because we’re at that stage right now in New York. That’s what’s —
Andrew Weissmann: Yeah.
Mary McCord: — left to do putting aside this, you know, motion to set aside the verdict. And I don’t want to belittle that —
Andrew Weissmann: Yeah, yeah.
Mary McCord: — but assuming that could get passed, sentencing is what we’re talking about. And basically —
Andrew Weissmann: Yeah.
Mary McCord: — the constitutional arguments against a sitting president serving a term of sentence or even being under. This is where I think the opprobrium and stigma would come in, you know? People might say, well, why doesn’t Judge Merchan just impose the sentence, but stay it until for four years. That’s where I think this idea of the public stigma and the opprobrium, at least if I were Trump’s attorneys, that’s what I would argue that you cannot effectively serve as the president for four years, both in your relationships with, you know, foreign allies and enemies or domestically when you’re like, you know, have this sort of Damocles over your head that you’ve got to serve a prison sentence at the end.
Then the third rationale for why a sitting president can’t be indicted or prosecuted or serve a term of imprison is, and this really goes to things that are already finished in New York, which is the mental and physical burdens of actually participating in defending yourself in a criminal prosecution would severely hamper the president’s ability to perform his functions. And again, to your point, that’s in the rearview mirror when it comes —
Andrew Weissmann: Yeah.
Mary McCord: — to the New York case. That is very much, you know, through the front windshield when it comes to the federal cases, which is why Jack Smith has asked for time to think about what to do.
Andrew Weissmann: Right.
Mary McCord: So in these opinion that those three burdens, let’s just say, on the president were balanced against sort of the other side of the ledger, which is the national interest in ensuring that no person is above the law.
Andrew Weissmann: I just wanted to talk about something you said, which is the sort of Damocles.
Mary McCord: Yeah.
Andrew Weissmann: You know, in other words, your point that all the marbles are going to be on this sort of idea of the sentencing.
Mary McCord: In New York, yeah.
Andrew Weissmann: Yeah. I’m just focusing on New York for now because, you know, you can imagine the other way of thinking about it, which is that’s sort of Damocles is there no matter what. It’s like, let’s assume there was a sentence that was imposed, and it wouldn’t be served until even, if it’s like probation or fine or whatever it is or it’s home confinement, whatever the timeframe is, that sentence would be something that would be carried out after he was president. So the concern about how it might interfere with his conducting himself as president, how he would be seen on the international stage, whatever the concerns are about how he would be seen, he either is going to be sentenced or he’s got a sentence that he would await to serve.
Mary McCord: Well, maybe. Trump’s team is going to say the whole case should be dismissed now. Yeah.
Andrew Weissmann: Oh, no, no, no. I agree.
Mary McCord: So we don’t know. We don’t know yet.
Andrew Weissmann: I’m just saying if those are the two alternatives, then those two alternatives are, the only answer to that is, well, just dismiss the whole case with prejudice.
Mary McCord: No. That —
Andrew Weissmann: I have to say that —
Mary McCord: No, that doesn’t really make sense.
Andrew Weissmann: Right.
Mary McCord: Yeah.
Andrew Weissmann: If I were the DA, I would be like no way in God’s green earth. And as everyone who listens to this news, when I say that God’s green earth is my PG reference, but as somebody who’s a prosecutor or even as a defense lawyer, that just does not seem just that if somebody’s done something and this is a serious crime, it was 34 felonies, et cetera. So this is a complicated situation.
And as I said, I think one of the pluses of going forward, which, I mean, I don’t think it’s going to happen, but one of the plus going forward with sentencing and just saying, well, it’ll be served later, is that it does give Donald Trump the option of sort of litigating the issues, whether the trial was fair, whether official acts were improperly used, I mean, all of those kinds of issues so he could sort of vindicate the issue of the opprobrium.
Mary McCord: I don’t think he wants to go anywhere close to that. No way.
Andrew Weissmann: No. Oh, I know. I agree with you.
Mary McCord: Okay.
Andrew Weissmann: I’m just saying that if you were thinking about the OLC opinion and the animating idea of opprobrium of what this means, putting it on in this unique situation where there’s already been, not just an indictment, but a conviction, the ability to vindicate is sort of removed —
Mary McCord: Yeah.
Andrew Weissmann: — for another four years.
Mary McCord: Well, that makes it in the news, et cetera, et cetera, revisiting all of the trial evidence, things you probably —
Andrew Weissmann: Totally.
Mary McCord: — he, no question, doesn’t want to do.
Andrew Weissmann: Yes.
Mary McCord: Okay. So since we talk so long about this, I do want to get to the other side of ledger, but let’s take a quick break. We’ll come back and do that before we shift over to the civil cases.
Andrew Weissmann: Great.
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Andrew Weissmann: Mary, we’re back.
Mary McCord: Yes.
Andrew Weissmann: We’re going to go to the other side of the ledger —
Mary McCord: That’s right.
Andrew Weissmann: — from the New York criminal case, the breaking news that we’re covering. What is the other side of the ledger? What are the arguments, the legal arguments, or anything else that you would point out here?
Mary McCord: So, you know, on the other side of the ledger, like I said, this is all about the national interest, ensuring that no person, including the president, is above the law. And that is, you know, something that, again, Republicans and Democrats in these Office Legal Counsel opinions have set. Now, the other side of the ledger in the New York case, because we’re already the point we are, the point about rule of law really kind of goes to what you were talking about before the break, Andrew, because seeing that there will be some accountability through the imposition of a sentence, even if it doesn’t include incarceration and it’s just about a fine or a probation or something like that, gets us to that point of rule of law where a former president, while he was a former president before he becomes president again, is subject to accountability like other persons would be.
The overall constitutional principles that we’re talking about that also apply in the federal cases and the Georgia case that have not yet gone to trial and are not in the same posture as the New York case, that’s where the balance on that side, the rationale, looks a little different. So, for example, what the writers of these memos said about ensuring no person above the law is, first, that you could prosecute once the term is over, or the president was removed by impeachment or resignation, like prosecution doesn’t mean it can never happen, but that it could happen when the term is over. And we could say that about the sentencing too. And we have just said that it could be. Well, we’ll see what Judge Merchan does, but I suspect there’s a good chance he will just put off even doing the sentencing until the end. So that’s sort of the rationale for, okay, we still have rule of law here.
Now, people might say, what about the statute of limitations? This would not be this case with a sentencing, but putting off the prosecutions of the federal case or the Georgia case, wouldn’t that mean that the statute of limitations would end. And the writers of these memos talk about how a court might hold, and that you and I know these are unanswered questions, that the statute of limitations could be told as like a constitutional implication of this temporary immunity that a president enjoys while in the office of the presidency or under equitable principles. And also of course, Congress could toll it. It could do a statute. Now, I don’t think Congress is going to do anything.
Andrew Weissmann: Not this Congress. Yeah.
Mary McCord: A court could, you know, by virtue of saying, well, the only reason that this was not able to be tried during the statute of limitations or prosecuted was because of this constitutional principle that supports a tolling. And then I think this is maybe in many ways, to me, what really was motivating these authors of these memos.
Again, this is not a court opinion. These are memos. Is that it really just would not be consistent with our constitutional structure during a presidency to leave removal to 12 unelected persons. By removal meaning, if the conviction, you know, caused removal from office, although some convictions wouldn’t have to cause removal from office. But I think either way, what they’re saying is 12 unelected persons shouldn’t have this kind of power during a presidency to basically derail that presidency when there is a provision explicitly in the constitution that does allow for there to be accountability, and that is the impeachment process. If Congress wants to remove from office and impeach and convict, Congress can do that, and we should not leave criminal prosecution to 12 unelected jurors.
Andrew Weissmann: Of course, the counter to that is that you can have a conviction conceivably. It hasn’t happened to our history, but you could have a conviction during a presidency. And it doesn’t mean the person’s going to be removed.
Mary McCord: Exactly. Like I just said, it’s not automatic.
Andrew Weissmann: Right.
Mary McCord: Right?
Andrew Weissmann: And the other thing that is such a complicated issue, but it’s useful to think about because I think some of our listeners will be, well, wait a second, wasn’t Bill Clinton subject to a civil suit while he was president? And isn’t that distracting? I mean, what if you’re subject to the opprobrium of a civil suit for rape —
Mary McCord: Right.
Andrew Weissmann: — or sexual assault? And what if you’re subject to not just that public opprobrium, which obviously would take enormous time and attention. And also there’s a monetary component and there could be a professional component, not just a political component. But also, if you’re a lawyer, you can have your bar license taken from you. Of course, you know, as lawyers, Mary, that’s like the first thing I go to. And the court has said like a civil case like that —
Mary McCord: For unofficial conduct.
Andrew Weissmann: — because that was something that happened entirely when Bill Clinton was not president.
Mary McCord: Right.
Andrew Weissmann: Actually, I don’t really know this, but, but I don’t think they were using information from when he was.
Mary McCord: Yeah. I’d have to go back. Yeah.
Andrew Weissmann: Yeah. But in any event, it was very similar to the New York case in that it was sort of —
Mary McCord: Yes.
Andrew Weissmann: — gravamen of it was focusing on a time period before the president was president.
Mary McCord: Unofficial conduct.
Andrew Weissmann: So there is civil immunity. We’ve talked about that. And for our president, for acts that he takes while president that are official, but that suit was allowed to go forward. And if you remember, Bill Clinton sat for a deposition —
Mary McCord: Yeah.
Andrew Weissmann: — while he was president. So the idea of interference with the presidency is not sort of sacrosanct in the law. Of course, you can make huge distinctions between a criminal case and a civil case.
Mary McCord: And that’s exactly what the OLC opinions do, right?
Andrew Weissmann: Right.
Mary McCord: They say, we understand that in Clinton v. Jones, the Supreme Court said, you know, for unofficial acts, the civil case could go forward. Distinguishing it as from the other case, Nixon v. Fitzgerald, which was about official acts, a civil suit against Nixon about unofficial act for which they said he was immune. But one of the things that the writers say, which I think is pretty consistent, honestly, with what the Supreme Court recently said in the Trump immunity case is that criminal is different from civil.
And they also talk about in a civil case, there’s a lot more flexibility that the court has, although, frankly, it could have it in criminal cases. It’s just more unusual. You can have civil cases kind of start and stop at different times. You can have flexibility in the scheduling. And normally, with a criminal case that just doesn’t happen. That’s just not the way they’re done. I supposed they could be done that way. It’s just not, you know, tradition.
Andrew Weissmann: You know, it’s really interesting because Judge Chutkan, in her decision on immunity, she also deals with civil versus criminal.
Mary McCord: Comes out the other way. Yeah.
Andrew Weissmann: Exactly.
Mary McCord: I agree.
Andrew Weissmann: She comes out by saying, first of all, criminal is more important. But she also talks about the gatekeeping that happens in a criminal context that in a civil context, you can have many, many, many, many civil cases. They don’t all preclude each other. You could have lots of civil plaintiffs and they can just be private parties who are just bringing —
Mary McCord: Be harassing, vindictive.
Andrew Weissmann: They can bring everything from meritorious to not —
Mary McCord: Right.
Andrew Weissmann: — and frivolous.
Mary McCord: Yes.
Andrew Weissmann: And they can be in 50 states and they can be lots of things and they can be judge shopping and forum shopping, something we’ve certainly seen in different contexts. And in criminal cases, there both is a much stronger double jeopardy issue. Meaning it’s kind of one and done for the most part, if it’s the same crime, because of the constitutional prohibition to be tried twice for the same offense. But also you need a grand jury —
Mary McCord: Yeah.
Andrew Weissmann: You have both the prosecutors and you have to have a grand jury decide that there’s probable cause. So there’s a gate keeping function built into the issues. She sort of pointed out why having a criminal case would make sense. Obviously, she was talking about it, not in terms of this exact issue. We’re talking about it —
Mary McCord: Right.
Andrew Weissmann: — which is whether there can be a criminal prosecution of a sitting present —
Mary McCord: During, yes.
Andrew Weissmann: That’s something that the Supreme Court has not itself directly —
Mary McCord: Never ever —
Andrew Weissmann: — addressed.
Mary McCord: — ruled on.
Andrew Weissmann: And you know, fortunately for this country, we’ve not been in that situation often. I won’t say never.
Mary McCord: That’s right.
Andrew Weissmann: It’s not often, but this criminal civil distinction, you know, I think our listeners are getting is, you know, Mary, you and I are lawyers so that we sort of immediately start thinking about one side and the other and weaknesses and strengths in various positions. I mean, this is a complicated issue. But should we bring it back to sort of where we are?
Mary McCord: I do just want to say one thing about everything you’d be saying. I think what happens, that’s where you know we’ve talked about both sides of the ledger. I think that another argument about the criminal prosecution is the societal interest, the national interest, and rule of law I think is greater there than on the civil side.
Andrew Weissmann: Absolutely.
Mary McCord: It’s just a difference. But, of course, these opinions say that interest is great, but it just needs to be postponed until after he’s no longer —
Andrew Weissmann: Right.
Mary McCord: — sitting president.
Andrew Weissmann: And I do think with the OLC opinions, remember they weren’t writing on a clean slate because for the Randy Moss decision during the Clinton years, there was a Supreme Court decision on that. So he couldn’t just say, well, we disagree with it. They’re bound by it. So, you know, he had that as a backdrop. That was something he had to take as a given. I’m not sure if it was not on the books that the OLC opinion would’ve said, civil cases can go forward too.
Mary McCord: And when you say opinions deal with, you mean the opinions in Nixon v. Fitzgerald —
Andrew Weissmann: Yes.
Mary McCord: — and in Clinton v. Jones? Exactly.
Andrew Weissmann: Exactly.
Mary McCord: We can discuss. Okay. So the civil cases. So, they’re in two buckets right now.
Andrew Weissmann: It’s like a perfect segue.
Mary McCord: It is. They’re in two buckets, the buckets of cases that are involving unofficial acts that are already finished with trial, there’s already a judgment, they’re on appeal. That includes the E. Jean Carroll cases, the defamation suits for which a jury did.
Andrew Weissmann: And sexual assault, defamation.
Mary McCord: Yes.
Andrew Weissmann: Remember the first case was sexual assault and defamation. Second case was defamation.
Mary McCord: That’s right. But unofficial acts is, I guess, the point I want to make.
Andrew Weissmann: Yeah.
Mary McCord: And those cases are finished in terms of they’re through the trial. They’re at the judgment stage. They’re on appeal. The same with the civil fraud case brought by the New York attorney general, we’ve had the trial. There’s a judgment, an enormous judgment. And that is on appeal and has been argued. So those not only were they about official acts, there’s nothing happening besides, you know, appeal and execution of judgment that could occur during Mr. Trump’s presidency after January 20th. And I don’t see anything in any Supreme Court precedent or the opinions of the office of legal counsel that would say those things can’t go forward. There’s no constitutional —
Andrew Weissmann: The Bill Clinton case —
Mary McCord: Exactly.
Andrew Weissmann: — is a perfect example. I mean, let’s just remember, this is just appellate practice.
Mary McCord: That’s right.
Andrew Weissmann: This is not sitting for a deposition.
Mary McCord: It’s not where we were with Clinton. Right. That’s right.
Andrew Weissmann: Exactly. Yes. Would Donald Trump during this transition period have to focus on what the appeal and maybe read the brief?
Mary McCord: Maybe.
Andrew Weissmann: I know there’s a (inaudible).
Mary McCord: I don’t know.
Andrew Weissmann: I mean —
Mary McCord: Is there a cliff notes version?
Andrew Weissmann: I’m going to be respectful and I hope that he does. But that is something that is far less —
Mary McCord: Oh, yes.
Andrew Weissmann: — than Bill Clinton had to do. And again, I’m not saying it’s wrong that Bill Clinton had to do it. I’m just saying that this is a far lesser imposition.
Mary McCord: Yes.
Andrew Weissmann: And so, with E. Jean Carroll, that is on appeal. The same thing with respect to Letitia James. It’s been argued, the Letitia James case.
Mary McCord: That’s right.
Andrew Weissmann: It’s on appeal. So there’s no reason for that not to proceed —
Mary McCord: That’s right.
Andrew Weissmann: — accordingly and consistent with New York and Supreme Court law on this. And Supreme Court law obviously creates the floor. New York, couldn’t go below it. New York could obviously give heightened protections, but I don’t think they would in this situation. And so, you know, particularly the E. Jean Carroll case where I have listened to that appeal, you know, that seems like a very strong case for the plaintiff there for E. Jean Carroll. And you know, Letitia James, who’ve talked about in the past, there are maybe some issues with that. We’ll see what the court does. But there’s no reason for that to be stayed in any way, shape or form.
And that, by the way, has all the effects of potential opprobrium to the future president that concerns about international relations. Because let’s just remember, he was found to have committed fraud. And in connection with the E. Jean Carroll case, the civil case, it is very similar in many ways to what we were just talking about Bill Clinton. There is a finding by a jury of sexual assault and defamation. And there was a finding by a second jury of continued defamation. And so, those are findings until a court says that that is reversed. You suffer the opprobrium of that even in a civil case.
Mary McCord: Yeah. A hundred percent. Okay. So here’s what I think we should do. Let’s break. And when we come back, we’ll talk about the other civil case that has to do with January 6th because that’s also related to the prosecutions of the rioters for January 6th and that’s how we will close out today.
Andrew Weissmann: Perfect.
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Andrew Weissmann: Mary, perfect segue. We’re about to talk about the other types of civil cases. And remember we just talked about E. Jean Carroll and Letitia James’ civil cases related to Donald Trump’s conduct that are not conduct that in any way relates to what he did in his official capacity as president. I should say that E. Jean Carroll’s case, there is an overlap during the time period that he is president, but it’s conduct that is unofficial as I read the, at least, court’s decisions on that.
Mary McCord: Yes.
Andrew Weissmann: But now let’s turn to a different set of civil cases.
Mary McCord: Right.
Andrew Weissmann: Take it away, Mary.
Mary McCord: Yes. So the other civil cases that are not yet through trial that are very much in that pre-trial posture are the cases brought by members of Congress and Capitol Police officers for money damages against Donald Trump for harms that they suffered as a result of the attack on the Capitol. You know, people know Capitol Police officers and also metropolitan police officers, you know, in many cases suffered actual physical injuries and physical harms. Members of Congress had to flee, et cetera. And so the issue there also comes back to, were these official acts of President Trump when he was president that caused their harms? And if so, is he immune from those?
Now, this is a case that went up to the D.C. Circuit after the judge below denied a motion to dismiss the case on the grounds of presidential absolute immunity. The D.C. Circuit then issued its decision before the criminal matter went to the U.S. Supreme Court on immunity. So this came before that the D.C. Circuit issues a decision that says, look, you’ve got to examine the president’s actual conduct on January 6th and in the lead up to January 6th to determine whether the conduct that he’s alleged to have engaged in that caused the harms to the plaintiff to determine whether it’s official acts within the outer perimeter of his official acts, for which he is immune or whether it is unofficial acts. And this came from the Nixon v. Fitzgerald case again, which is about suing Nixon or things he did that were official acts and that he was immune form.
So what the D.C. Circuit said there, and actually there are parts of this that are cited by the Supreme Court in its criminal immunity decision, the D.C. Circuit essentially said, you need to go back and look for each case, was the action of president Trump that of an office holder, right, part of his presidential functions, in which case is an official act in his immune from civil liability, or was it in his role as an office seeker, a candidate for office, purely private conduct for which he is not immune.
People are probably thinking, this sounds a lot like the immunity decision out of the Supreme Court. And of course, it went even further in many areas that we’ve discussed before, when it said absolute immunity for which there’s no way to rebut it for everything within the president’s core constitutional powers. But then it said for everything else, go back and do this analysis about, was it purely private? And it cited this case blasting game, purely private as an office seeker or official as an office holder.
The civil case now is still in this pretrial posture. And in fact, what the parties have been doing ever since the D.C. Circuit opinion is they’ve been engaged in discovery to get to this question that will help the judge answer this question about are the things that are charged in the civil case against Mr. Trump are those things that he was doing in his official or unofficial capacity. And the judge has, you know, they’ve been having deadlines for discovery and they’ve now got deadlines for finishing that discovery and filing what’s called a summary judgment motion where the parties will try to argue that we don’t have any issues of material. Well, they may try to argue. We don’t have any issues of material fact. We all know what the facts are. This is either official. This is unofficial. It could be that they will dispute facts. And then we would have to be looking at a decision just about what evidence could come in, could the case remain, and then go to trial to have some of the factual disputes resolved.
But that case, there’s no reason that these decisions about official and unofficial can’t be made by the district court judge. And if he decides they’re unofficial, Mr. Trump will have the ability to appeal those things. But if ultimately they’re unofficial, then it would be the Clinton v. Jones Supreme Court holding that applies. And that case could go forward even during Mr. Trump’s presidency. If it’s determined that they’re official, then it would not.
Andrew Weissmann: Exactly. Should we talk a little bit about what’s going on with the January 6th sort of defendants, the ones that are charged, the ones pending sentence and the ones that have been convicted because there’s a lot of activity there. Obviously, nothing about presidential immunity should affect them because they’re not presidents.
Mary McCord: That’s right.
Andrew Weissmann: Nor it’s something where they were explicitly getting a command on doing this at the explicit direction and authority of the president. And that’s something that courts have weighed on.
Mary McCord: Yeah. Judges at sentencing have said, look, it may be that you thought you were doing what President Trump wanted you to do —
Andrew Weissmann: Wanted.
Mary McCord: — but you made your own decision —
Andrew Weissmann: Right.
Mary McCord: — and you’re responsible for that decision. Right.
Andrew Weissmann: Right. In the sense, I maybe rephrased that, which is basically the court saying there can be two people responsible here.
Mary McCord: That’s right.
Andrew Weissmann: You can have the president saying, with it wink and a nod, do it and you can have the person participating. But that just makes two people guilty.
Mary McCord: That’s right.
Andrew Weissmann: Not one. By the way, this is like my Brooklyn U.S. Attorney’s Office training.
Mary McCord: Yeah.
Andrew Weissmann: It’s like very brass tax, like that’s kind of actually what you need to do as a trial lawyer, is like figure out how to —
Mary McCord: yeah.
Andrew Weissmann: — like cut through it.
Mary McCord: The stuff.
Andrew Weissmann: The stuff.
Mary McCord: The stuff. The (inaudible) stuff.
Andrew Weissmann: Right. So anyway, a lot of the January 6th defendants have said a little bit like what we’re seeing in New York that we started the episode with, please put this off —
Mary McCord: Yes.
Andrew Weissmann: — because things may change when Donald Trump becomes president. i.e., I am hoping, expecting a pardon.
Mary McCord: Yeah. They’ve been more explicit basically. He promised a pardon. So you shouldn’t sentence me because I’m getting pardoned.
Andrew Weissmann: Right. And you know what’s interesting in this situation is you don’t have the government saying, yeah, let’s just put it off because let’s see what’s going to happen. And there’s no reason you should suffer the opprobrium, blah, blah, blah, blah. It said, so insert all of the arguments we just talked about. And what’s interesting is that the judges have, I think, uniformly —
Mary McCord: Yes.
Andrew Weissmann: — denied that. And just to be clear, because it’s just like a theme, Mary, you and I have repeated, which is among those judges are judges appointed by Democrats and Republicans and in that Republican category include judges appointed by Donald Trump who are —
Mary McCord: That’s right.
Andrew Weissmann: — good solid judges.
Mary McCord: That’s right.
Andrew Weissmann: I keep on saying this, which is the worst thing that happened to them are judges who are appointed by Donald Trump, who are not viewed as good and solid, which detract from their own (inaudible) as solid judges.
Mary McCord: That’s right.
Andrew Weissmann: Just as an example, Dabney Friedrich, really solid judge. I know, Mary, you know her well. And she clicked, I think, for the same judge you clicked for.
Mary McCord: She came in right after me, took over my caseload.
Andrew Weissmann: And she denied that. She said, you know, whatever is going to happen —
Mary McCord: Not only did Judge Friedrich deny a request to put off sentencing, she sentenced somebody on Friday to eight years.
Andrew Weissmann: Yeah. They understand the seriousness of this.
Mary McCord: He was one of the most violent people. That’s right.
Andrew Weissmann: And as Judge Howell, the former chief judge of the district court said is, look, whatever the president’s going to do is separate and apart. And whether it happens or doesn’t happen, that is a separate process. It is governed by different rules that is exclusively to the president. And she’s, basically, I have my job to do.
Mary McCord: That’s right.
Andrew Weissmann: And if that’s what happens, that’s what happens. But if you want to do that with the spectrum, obviously, it’s your nickel. But the thing that’s interesting here and what I’m sort of looking for is whether Donald Trump, A, will he issue any pardons, and B, will he show some restraint in terms of how he does it? Because these are not one size fits all. The whole point of our judicial system is that people are treated as individuals or the individual circumstances, individual backgrounds, obviously individual conduct in terms of what they did that led to their conviction.
So, you have a bell curve. And at one extreme, you have people who fomented, who engaged in physical violence, who actually attacked police officers. And on the other, you can have somebody who’s sort of caught up in the moment, has otherwise led a law abiding life. Well, I’m not trying to say they shouldn’t be prosecuted. I’m just saying that you have to assess the severity of what they did.
Mary McCord: They were nonviolent, right?
Andrew Weissmann: Exactly.
Mary McCord: There were some people who was trespassing.
Andrew Weissmann: Trespassing, exactly.
Mary McCord: And no violence. Right.
Andrew Weissmann: And so that you have that spectrum. I mean, personally, I couldn’t imagine pardoning any of these people. But if you did, it’ll be interesting to see whether there’s any sense of proportionality in terms of how it’s done. And also, just to be clear, the pardon power includes sort of two separate things, which is you can pardon completely and say like the whole case goes away. That is the sentence and the conviction. It’s not as if it didn’t happen. It did happen. But it’s like, you’ve been pardoned.
Mary McCord: That’s right.
Andrew Weissmann: But the other thing, and we saw this in connection with like Scooter Libby is that you can commute the sentence.
Mary McCord: Right.
Andrew Weissmann: Meaning that somebody still has a conviction, but their sentence, particularly if they’re in jail, they would be released from jail or if they’re under house arrest or there’s a fine, you can commute the sentence that has been imposed. And very often you might see that when, let’s say, drug laws have been changed.
Mary McCord: Right.
Andrew Weissmann: And there were sort of very, very draconian sentences early on in the way we were thinking of crime. And then later years, people look back and say, you know what, there’s categories here of sort of first time offenders with low dosage and, you know, drugs like marijuana, where —
Mary McCord: Right.
Andrew Weissmann: — there would be an interest in commuting a sentence.
Mary McCord: Shortening it. Right.
Andrew Weissmann: Exactly. But not necessarily getting rid of the case altogether. So that’s something for people to keep an eye out on for like how is this actually going to be imposed.
Mary McCord: That’s right. And you know, this is an area where the constitution does give this power directly and explicitly to the president.
Andrew Weissmann: Exclusive and preclusive —
Mary McCord: Yes.
Andrew Weissmann: — is the key phrase.
Mary McCord: So courts can’t act upon it. Congress can’t act upon it either. So we’ll see what he does. Now, with respect to those who have not already been found guilty, whether through a plea agreement or through a trial and have not already been sentenced, for those who are just pending, that is something where the president would not have to issue pardons or commutations. He could just direct his Department of Justice to dismiss those cases.
Now, then there could be a question about dismissal with or without prejudice. But at any rate, after four years of Donald Trump in office, either way under current law, those cases would be beyond statute limitations. So a lot of people ask me about pardoning all those who have pending cases. And I’m like, well, he could, you know, try to do that, but he wouldn’t even have to. An easier thing would be just to dismiss them.
Andrew Weissmann: Yeah.
Mary McCord: Again, but this is another area where we may see distinctions, right? Distinctions between dismissing those against people with the lower level, nonviolent charges versus those who attacked police officers. I do think that Donald Trump will take a lot of heat if he just misses or pardons cases involving physical attacks on police officers and things like that. So we’ll see what happens. So much ahead, notwithstanding that so much has changed.
Andrew Weissmann: Mary, this was a meaty episode with lots of sort of complicated issues. And obviously, we will keep everyone posted because essentially a week from today, we have built in news from Judge Merchan. And I look forward to talking with you and to our audience and listeners about it.
Mary McCord: Looking forward to it as well.
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