In person together at 30 Rock, veteran prosecutors Andrew Weissmann and Mary McCord use their combined expertise in FBI and Justice Department standards to lay plain how far outside the norm the incoming president is aiming, by flouting a congressionally mandated 10-year appointment of an FBI Director and naming loyalist Kash Patel to replace Christopher Wray. Then, they take a beat to reflect on President Biden’s unexpected pardon of his son Hunter and remind listeners of several active January 6th civil cases brought against Donald Trump that may provide the only litigation of his actions after the 2020 election. Also, on Monday, Trump’s brief was due in New York as to why his case should be dismissed based on the immunity of a sitting president. At the time of this recording, it had not yet hit the docket, but Andrew and Mary review the stakes and Judge Merchan’s denial of delaying the filing.
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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, December 3rd, and I’m Andrew Weissmann, and I’m here with, guess who? Mary McCord.
Mary McCord: In the same room.
Andrew Weissmann: So we are physically together. Most people probably don’t realize that, that we usually see each other over Zoom. But now we’re actually face-to-face in 30 Rock, and we’re in a lovely room, which our Prosecuting Donald Trump listeners, the die-hard listeners, may recall that we did this before, but with one really important difference. And what is that, Mary?
Mary McCord: So before, my back was to the window, and you got to see the view of the Christmas tree at Rockefeller Center and St. Patrick’s Cathedral, and today I get to see that out the window.
Andrew Weissmann: Isn’t it beautiful?
Mary McCord: It’s beautiful. But you know, I get to see something even lovelier. This is going to be my charm offensive, which is I’m facing you.
Mary McCord: Oh, gosh.
Andrew Weissmann: And in addition, we were thinking that we should call this episode two ferns, a philodendron, two --
Mary McCord: A snake plant.
Andrew Weissmann: A snake plant and two containers of plastic flowers.
Mary McCord: I wish you could see it. They’re beautiful.
Andrew Weissmann: That’s a catchy title if I’ve ever heard one.
Mary McCord: Yes, that is.
Andrew Weissmann: So how about we talk about something substantive?
Mary McCord: Oh, what’s going on?
Andrew Weissmann: By the way, the other way, I’m going to have one other thing, which is one of the reasons we’re together is last night, Mary and I had a first-ever slumber party.
Mary McCord: Yes. Okay, people are going to get all the wrong ideas here.
Andrew Weissmann: Get your mind out of the gutter. We’re friends.
Mary McCord: Yes, that’s right. And I make frequent trips to New York, and Andrew’s new apartment has a complete guest suite, and so I took advantage of that last night, which was lovely. And this morning I got to spend time with Innes, his dog, while he went off and did some actual work-type thing. And so I had coffee with Innes, who, by the way, you have to keep petting or else he will tell you and complain to you that you stopped petting him. But that was very sweet.
Andrew Weissmann: He’s very needy.
Mary McCord: Yes, yes. I liked it. It was great.
Andrew Weissmann: So we had talked about what we were going to talk about last episode, but --
Mary McCord: We’ve been let down.
Andrew Weissmann: Judge Merchan is apparently not listening to this podcast enough to know that he has not given us the fodder for what we said we would talk about.
Mary McCord: That’s right. So listeners will remember that last week we made a big deal about the fact that Donald Trump’s motion to dismiss would be due yesterday, Monday, December 2nd, by close of business, and then Alvin Bragg’s opposition to that motion would be due next Monday, December 9th, by close of business, no replies to be followed. And we made a big deal about the fact that that timing was so wonderful because we would be recording on Tuesday morning and we could talk about what’s in that motion to dismiss. But guess what? It has not yet hit the docket.
Andrew Weissmann: So we are never doing that again.
Mary McCord: In public.
Andrew Weissmann: No predictions.
Mary McCord: Yes, we have every reason to believe that it was filed, but sometimes it takes a bit for these things to be made public. Well, I guess I can say this right now, and then we’ll go on into the other things we’re going to cover, which will include Donald Trump’s intent to appoint Kash Patel as the FBI director. Now, never mind that we already have an FBI director whose term goes to 2027. We’ll talk about that. We’ll talk briefly about the pardon of Hunter Biden, and then we’ll talk for a while about civil cases involving January 6th that are still moving forward.
But with respect to the motion to dismiss, recall there already is a motion to vacate the jury’s verdict on the grounds that official acts evidence was introduced at trial for which Donald Trump has immunity, and therefore there needs to be an entire new trial or just the entire case dismissed. This is a different motion to dismiss. This is a motion based on the immunity of a sitting president from prosecution while he is a sitting president. This is something we talked about last week, and in their case, even just during this transition time.
Andrew Weissmann: So during the sort of president-elect transition period, which is an official thing.
Mary McCord: It is.
Andrew Weissmann: And where there is particular work that’s done, and we know that within the national security world, that’s a big part of making sure that the incoming intelligence folks, that is the people they expect to be in the intelligence community, get briefed.
Mary McCord: That’s right.
Andrew Weissmann: And the idea is that they’re not sort of inundated and starting on day one, and that there’s a very smooth transition, irony of all ironies. So that is a motion that the court said you can make it, but I’m going to hear it quickly.
Mary McCord: That’s right.
Andrew Weissmann: And so it was supposed to be, and it surely was filed.
Mary McCord: We just haven’t seen it.
Andrew Weissmann: Now you also had told me just before we started that there was also a request for a delay by Donald Trump, and what happened there?
Mary McCord: That’s right. Mr. Trump’s attorneys came in right before Thanksgiving and asked for three extra days to actually file this motion until December 5th, and their argument was they needed time to digest whatever Jack Smith was going to file on December 2nd in the federal cases, the January 6th case in D.C. and the Mar-a-Lago case up on appeal in the 11th Circuit.
Well, of course, Jack Smith filed early, because we’ve already discussed that he moved to dismiss a week early, or even more than a week early the case in D.C. and moved to dismiss the appeal just as to Donald Trump, not to the other two co-defendants in the Mar-a-Lago case, and those motions have been granted already. So what Judge Merchan did is he responded with an order to Donald Trump’s attorneys saying you don’t need that extra time because Jack Smith filed early. You have ample time to be able to digest what he has done and factor that into your motion to dismiss.
The interesting thing to me is that when Donald Trump’s attorneys, they started out this sort of discussion of filing a motion to dismiss by sending a letter to Alvin Bragg a few weeks ago, and they made clear that this case needs to be dismissed, as you just indicated, not just on January 20th, but right now because of the presidential transition. Then they asked for a briefing schedule where their brief wouldn’t even be due until December 20th, right?
Andrew Weissmann: What’s your point, Mary? Do you see some inconsistency there? You need to decide right now, but you should let us brief, and then--
Mary McCord: In four weeks.
Andrew Weissmann: Right, and the brief is going to be forever. So Judge Merchan denied that, said, no, I’m setting dates of December 2nd and December 9th, and then they came in again and asked for a delay. So this kind of like hurry up, but don’t hurry up too much because we need to brief it, is a little bit confusing to me because if you really went with their original schedule of briefing December 20th and then some sort of response after the holidays, that would be almost too inauguration before the judge even would have a chance to rule.
So, I don’t know.
Andrew Weissmann: I mean, it’s reminiscent of the big picture to just take the time to chuck in January 6th case where Donald Trump was saying that the mere pendency of the case and the so-called gag order was interfering with his ability to run for office, but please do not hold the trial anytime soon. It’s like, okay, so are you suffering harm or are you not suffering harm?
Mary McCord: There is no rule, by the way, that attorneys make consistent arguments.
Andrew Weissmann: Exactly. So we’re going to come back to the New York case when we actually have more filings to cover, and obviously we’ll ultimately get Donald Trump’s brief, we’ll get the state’s position, and then it’s anticipated that we’ll have a ruling I think pretty quickly given what Judge Merchan has said.
Mary McCord: That’s right. And in the meantime, remember, the motions on vacating the jury verdict because of the immunity ruling this summer are on hold, and the sentencing is on hold, right?
Andrew Weissmann: Exactly.
Mary McCord: Importantly, the sentencing is on hold.
Andrew Weissmann: Exactly. So, Mary, why don’t we turn after a short break to our second topic, which I know is something from our brief discussion, since we actually are physically present, is triggering for both of us.
Mary McCord: Yes, triggering.
Andrew Weissmann: We’re going to talk about the proposed nomination of Kash Patel of the FBI. Obviously, I worked on two separate occasions at the bureau. You worked a lot with the bureau, and obviously a lot of AUSA’s, Assistant United States Attorneys, those are federal prosecutors, work with them, but also you were the National Security Division at Main Justice, so that’s a main litigating and policy component on the national security side where the interactions with --
Mary McCord: Daily. Multiple times a day.
Andrew Weissmann: It’s just an incredibly close relationship, and within the General Counsel’s Office, daily is an underestimate. I mean, these are just components that work very closely together on both individual cases and on policy issues.
Mary McCord: That’s right.
Andrew Weissmann: So we’re going to talk about that, and we’ll also briefly discuss our reactions to the latest use of the pardon power. It’s useful to think about it in context of how it’s been used in the past, but why don’t we first take a break?
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Mary McCord: Welcome back. Well, as promised, we will talk about the proposed nomination of Kash Patel to be the FBI Director. Now, as I said at the top of this episode, we actually have an FBI Director. His name is Christopher Wray, and unlike most political appointees who basically their term is finished at the end of the administration of the president who appointed them, the FBI Directors are appointed for 10-year terms, and that was a post-Watergate reform that was very intentional to make sure that that position would extend through multiple presidencies and to provide some separation between the White House and the head of our largest domestic law enforcement agency, the FBI, so that it showed some independence of the FBI and, of course, the Department of Justice, of which the FBI is a part, as you and I like to say all the time, although they sometimes don’t like to think of it that way, and to depoliticize the office.
Andrew Weissmann: So one of the things that’s unusual about the FBI, and yes, it’s a component of the Department of Justice, is there are about 36,000 employees, analysts, agents, staff. They’re very senior-level people, and there is one and only one presidential appointee, and that is the FBI Director.
That is, as you know, Mary, really unusual. People should know that within the sort of main justice, across the street where you have lawyers--
Mary McCord: Like headquarters.
Andrew Weissmann: Headquarters, exactly, and there are numerous presidential appointees, but the idea within the FBI was not only is there only one, but as you said, Mary, in 1976, Congress passed this law that said that they’d be appointed for a 10-year term, and it served these two purposes. One was to not have a recapitulation of sort of the Hoover power hegemony. That’s not something we were worried about for this topic with Kash Patel, but the other was to make sure that it was understood that Congress’s view was that this was not a political position, that even if you had a president for two terms, that this spanned even longer than that. It was a 10-year term, and the idea was that, yes, a president eventually gets to make a choice, but it’s not a sort of a political choice, that facts and law matter, that you don’t want politics to be interfering with the idea of who do you investigate and how you evaluate facts and law.
To be clear, the president always has the power to fire people who are presidential appointees. They’re not civil servants in that sense. This is what we’re going to be getting to, the norm here is that, but for Donald Trump, no FBI director has been removed without cause. I know of one where there was cause during the Clinton administration.
Mary McCord: Some ethical issues.
Andrew Weissmann: Exactly, and so that falls into a very different category where the president has that power, and if they exercise it in that circumstance, it’s hard to complain.
But with Donald Trump, this would be essentially the second time he is removing an FBI director for reasons that are not for cause. It’s not ethical issues, and one was Jim Comey, quite famously, that was a triggering event for the deputy attorney general who was acting attorney general for these purposes to appoint Robert Mueller as a special counsel, and now Chris Wray would essentially de facto being removed because you’d have someone else coming in, and the oddity of this is of course Chris Wray was --
Mary McCord: Appointed by Donald Trump.
Andrew Weissmann: Exactly, and some people might be saying, so what’s the big deal? If he appointed him, why can’t he just appoint a different person to replace him? And the answer to that is no. The point is when you’re doing that job, you should feel like you are not beholden to the beck and call of the president, and you can function independently, not on policy issues, but on the issues of particular cases and who should be prosecuted and your responsibilities.
Mary McCord: And who should be investigated.
Andrew Weissmann: Exactly.
Mary McCord: Is there reason to engage in those investigations?
Now it’s interesting that we reflect back on Donald Trump’s firing of James Comey because I think he has certainly said himself, and there’s ample reason to believe, that he fired James Comey because of the Russia investigation. I mean, Comey was the director of the FBI when the investigation into whether there was collusion between Donald Trump’s campaign and Russia in the 2016 election in order to favor Donald Trump over Hillary Clinton. That investigation was ongoing when Donald Trump took office on January 20th of 2017, and he wanted that to end. And he also wanted James Comey to protect people like Mike Flynn, his incoming national security advisor, who ended up resigning because of lying to the vice president and others about conversations he had had with the Russian ambassador.
But you may recall, to sort of paper over and provide cause for that firing, the deputy attorney general wrote a memo suggesting that James Comey needed to be removed because in the summer of 2016, he had gone out and made public statements at the time that they closed the investigation into Hillary Clinton and her use of private email servers. He had made public statements about her culpability, that really he had utterly no business making. It is up to the Department of Justice, not the FBI, to make decisions about whether to bring a prosecution. The FBI does investigations. Attorneys at the DOJ make decisions about prosecution. And to the shock and dismay of many of us at the department, I was sitting in my office in the National Security Division with the television on, literally my jaw dropping to the floor as I heard James Comey on national television talking about the investigation without ever having cleared it through the Department of Justice.
Andrew Weissmann: So, Mary, it’s so interesting. I was also in my office. I was head of the Fraud Section. Exactly the same reactions. But it’s so funny, even though we knew each other, like, did you ever think, just because everything’s about us, did you ever think that we would be here?
Mary McCord: Be doing this podcast, talking about this? No, I did not. We would talk to each other about fraud cases sometimes, yes.
Andrew Weissmann: My jaw also was on the ground. I was so angry. And it had nothing to do with Hillary Clinton.
Mary McCord: No.
It was just about the breaking of protocol.
Andrew Weissmann: It was a violation of the DOJ rules, which is you don’t denigrate somebody.
Mary McCord: If you’re not charging them.
Andrew Weissmann: Exactly. And, frankly, you know what? People have gotten into trouble. When you do charge somebody, then you don’t do it because they’re awaiting trial and there are all sorts of strict rules.
Mary McCord: You speak through your indictment, you speak through your papers.
Andrew Weissmann: Exactly. And you and I know people who have been investigated by the IG for if they say too much at the time of an indictment.
Mary McCord: So, anyway, this memo was a way to sort of provide that cause. And the reason I bring this up is it seems like at least those around Donald Trump back in early 2017 thought it was important there’d be some sort of cause that could be pointed to to justify the firing of James Comey. Now we’re talking eight weeks before Donald Trump even takes office, he’s talking about firing or hoping that his own appointee, Christopher Wray, will leave the position so that he can put somebody else there.
He’s not even pretending there’s any cause for it other than simply he doesn’t like the way Christopher Wray has done his job, I think because what did we have? We had an investigation of January 6th. We had an investigation of the mishandling of national defense information and classified documents and a search warrant executed at Mar-a-Lago. These are things that Trump has grievances about. And so I guess people listening will say, well, isn’t that cause? Well, it’s not the kind of cause that we think of when we think of --
Andrew Weissmann: That’s not cause.
Mary McCord: Yeah, that’s right.
Andrew Weissmann: That’s not cause.
Mary McCord: It’s his reason, but it’s not cause. Cause has got to be sort of a legally cognizable misuse of office.
Andrew Weissmann: And so these, again, are norms. There’s no question that a president would have the power to do that. One thing that I think is important is everything that we have said so far has nothing to do with the qualifications or lack thereof of the proposed person coming in. We would be having this conversation even if the proposed nominee was hyper-qualified.
This is a systemic issue about the role of career people, the role of the FBI, the role that you and I certainly think with respect to what you want in law enforcement. One of the issues that I know you and I think really strongly about is the question of, if you’re Chris Wray right now, do you resign? Do you sort of say, Well, I’m going to resign in light of this?
Mary McCord: On January 20th.
Andrew Weissmann: On January 20th. Do you resign before? Just do you resign at some point? Or do you make Donald Trump actually have to remove you, meaning fire you? And this is one where you and I are in violent, violent agreement.
Mary McCord: People will be shocked.
Andrew Weissmann: I know. We were joking last night because we were like, we’re going to find something that at best, we have slightly --
Mary McCord: We have little things we disagree on.
Andrew Weissmann: Little things or slight different emphases based on our different backgrounds.
Mary McCord: Do not resign, Chris Wray.
Andrew Weissmann: Exactly. Do not resign. Why? This is like the Professor Schneider at Yale, which is do not obey in advance. Everything we said about the role of the FBI and what it should be in this country, it’s useful for the public to understand that by saying, No, I’m not resigning because I understand what Congress wanted to do in connection with creating a 10-year term. And so if you want to fire me, you take whatever political hits there would be or lack thereof. That’s on you.
Mary McCord: Not to mention, and this would not be Chris Wray’s rationale, but he has done an excellent job. Can you quarrel sometimes with things the FBI does?
Andrew Weissmann: Yes.
Mary McCord: Absolutely, 100%.
Andrew Weissmann: I have a few.
Mary McCord: Yes. Yes. And historically, there have been abuses of their authorities and things like that. But he has come in, he has led a large law enforcement investigatory agency, and he has, certainly far more often than not shown himself to be an apolitical figure in terms of his investigations. And one of the things that I have found somewhat startling, and he definitely has found it startling, is this criticism, essentially, that the FBI is essentially too liberal, right, and is filled with whatever woke agents.
Andrew Weissmann: Deep state. So now we’re turning to Kash Patel because Kash Patel famously, and this has been going around on MSNBC and Clips, has said, you know, I want to get rid of headquarters and turn the headquarters building into a museum of the deep state.
Mary McCord: That’s right.
Andrew Weissmann: Well, you and I have worked in --
Mary McCord: I mean, that’s us. We’re the deep state. We’re not there anymore.
Andrew Weissmann: Right. So as I mentioned, only Republican directors.
Mary McCord: That’s right. Let’s just say in my dealings, I didn’t get the sense that they were leaning toward the left.
Andrew Weissmann: You know, I just thought that the FBI and the students at NYU, hard to tell them apart. They’re just so similar. I mean, the idea that you and I have joked about this, that people think that we’re liberals.
Mary McCord: Unless they’re a liberal, and then they think we’re not.
Andrew Weissmann: But we were in law enforcement for so long, and we believe in the rule of law.
Mary McCord: That’s right.
Andrew Weissmann: People really should understand. I know it’s hard when you think that people don’t act out of principle, but at the Department of Justice, at the career level, including at the bureau, it just doesn’t even cross your mind. And so that’s been a good transition to Kash Patel.
And the thing that I’m keeping my eye out for, I’m going to jump to something that I think has gotten not enough attention and will be interesting, is there is reporting that Kash Patel, and he himself, has made various statements about knowing or having heard that at least with respect to some documents, that Donald Trump declassified them sort of in broad brush. And so sort of undermining the idea that the documents at Mar-a-Lago are still classified.
We’ve talked a lot about whether that’s even relevant as a defense, but clearly Jack Smith thinks that’s not true, because if you read the indictment, Jack Smith makes it really clear that he thinks they are still classified, and he has written that in various briefs. So there’s some tension.
Mary McCord: There’s a factual debate there.
Andrew Weissmann: Exactly, between what Kash Patel has said publicly and Jack Smith’s position. In addition, there’s been reporting that Kash Patel has gone in the grand jury in Florida, being called by Jack Smith’s team, and would therefore have testified under oath. We don’t know what it is that he has said, but that issue of whether he has, what’s the right phrase, been accurate in his description.
Mary McCord: He had alternate facts.
Andrew Weissmann: Yeah. And it’s also interesting because Donald Trump is on tape talking about how, at least with respect to some set of the documents, he understood they were still classified. So now, just to be fair, there are a lot of documents that were at Mar-a-Lago, and so conceivably some could be classified and some could be declassified. Again, I’m trying here, Mary.
Mary McCord: Yeah, I think you’re giving him a lot of credit here, because my recollection --
Andrew Weissmann: That’s a way of saying too much credit.
Mary McCord: Yeah, because, you know, right after the Mar-a-Lago search and then the indictments, Kash Patel came out pretty strongly saying he engaged in blanket declassification of these documents. In his head. Yes. Donald Trump certainly said, I can do it in my head. I don’t have to.
Andrew Weissmann: And Kash Patel was sort of the corroboration, saying, and I recall that.
Mary McCord: I recall him doing it, which would mean he had to have verbalized it to somebody, others who were around contemporaneously.
Andrew Weissmann: You don’t think he didn’t believe in mental telepathy.
Mary McCord: I know what you’re thinking right now, Andrew, so there you go. That’s why we’re able to do this podcast, because --
Andrew Weissmann: Totally. We don’t have to be in the same room.
Mary McCord: That’s right. That’s right. Others, though, who were around at the time, also disputed that. It’s not just sort of Jack Smith said, we don’t believe that to be the case. Others were like, there’s no evidence of that. Zero.
Andrew Weissmann: Right.
Mary McCord: That’s right.
Andrew Weissmann: A litany of people going, what?
Mary McCord: So I think that, you know, it’s quite possible that in Jack Smith’s final report about the Mar-a-Lago investigation with respect to Donald Trump, we may learn something about this. But I want to raise another point about this that I think is important.
Andrew Weissmann: But on that, just so people know, there is going to be a final report, and presumably it’s going to be on the January 6th case and on the Mar-a-Lago case.
Mary McCord: Or two separate reports, I’m guessing. Right. Two volumes.
Andrew Weissmann: And it is likely to be public, because Merrick Garland has this sort of policy of making these words public.
Now, it may not name people who have not been charged, so it may not say, Kash Patel in the grand jury said X. But it’s the kind of thing where --
Mary McCord: Or that may be redacted.
Andrew Weissmann: Exactly. So that we may be able to sort of piece that together. But people should keep an eye out for that issue of the contrary proof. And just, if you’re Donald Trump, think about what the confirmation hearing is. Like, this is not a hard one. Think about the questions that you would ask of the head of the preeminent law enforcement agency in this country. The question that you would have as a sitting senator is, did this person lie for the president-elect, then incoming president? In which case, I mean, is that who you A, want to have as the head of the FBI? And think about sort of the leverage that would give the president over the FBI director, if that’s the case. And you could dangle the issue of a pardon over the FBI director’s head.
I mean, this is surreal stuff.
Mary McCord: It is surreal stuff.
There’s another concern that I think the senators should be worried about, and a whole lot of other people, is, let’s assume the truth of that, which I do not. I think that was made up to try to get himself out of this Mar-a-Lago case. But let’s assume that, you know, there was some sort of blanket declassification, and the person out trumpeting this, one of the persons trumpeting this, is Kash Patel.
So think about the national security consequences of an outgoing president who says, you know what? I want to take all this stuff with me to my, you know, my Florida home, so I’m just going to declassify everything. We’re talking about outing sources who are still in the field engaged in undercover covert operations. We’re talking about outing methods.
Andrew Weissmann: Wait, our nuclear capabilities and nuclear capabilities of other countries where they would give anything to know what do we know about--
Mary McCord: About what they’re doing.
Andrew Weissmann: Exactly.
Mary McCord: Exactly. So, think about, you know, why would anyone, why would the Senate, why would anyone in the country think the person who said everything was declassified is somebody we would want sitting at the top of the FBI? Now, granted, FBI is different from CIA or NSA or some of the other classic sort of foreign intelligence collection agencies, but the FBI still deals every day with our international partners, the Five Eyes and others, sharing intelligence with respect to terrorism, with respect to espionage, with respect to so many different things.
Andrew Weissmann: And when you say Five Eyes, just explain what that is.
Mary McCord: So, this is an alliance between several of our closest allies, so England, Canada, New Zealand, the U.S. Who did I just leave out?
Andrew Weissmann: Australia.
Mary McCord: Australia, thank you. Sorry, Australia, that was not personal. I just was going around the globe in my head, and I know you’re right by New Zealand, and so I apologize.
Andrew Weissmann: We have listeners there.
Mary McCord: Yes, we do.
Andrew Weissmann: So, it’s good that you made that comment.
Mary McCord: We do. These are close relationships. Now, we have close relationships with lots of other allies, too, all over the globe where we have intelligence sharing. But can you imagine, first of all, when that was ever stated back at the time after the Mar-a-Lago case was brought, I’m sure that they were, you know, dismayed about it and thought this can’t be possibly true. But to think that then potentially Kash Patel could be leading this law enforcement agency and having relationships with them, why would you want to share anything?
Andrew Weissmann: Exactly.
Mary McCord: Why would you share anything with the FBI?
Andrew Weissmann: That also goes to something Kash Patel has said, which is that there’s clips of him saying that he, as we mentioned, wants to get rid of sort of FBI headquarters and just have everybody in the field.
As I’ve said in the past, if he had said, you know what, I think I want to recalibrate, I think the FBI headquarters is too many people and the field should have more, fine. You know what, elections have consequences. That’s a legitimate thing. But to say you want to get rid of headquarters, exactly how and who is going to be dealing with all of the Five Eyes?
Mary McCord: That’s right. That’s going to be out in various field offices around the country?
Andrew Weissmann: We’re going to have a Balkanized system where everybody just does whatever they want? I understand the idea, the sort of global view of these proposed nominees is they’re sort of anti-Washington, anti-bureaucracy. But the idea that you’re going to have somebody at HHS or the CDC who is actually against the institution in terms of making us medically safe. This is the same. This is people who are being proposed who are against the institution. And these are institutions, while imperfect, like all of us, they’re humans that run them. So there are going to be mistakes. No one’s saying there aren’t issues.
But to just say, tear it all down, and this is to give you a sense of what I know is in my head and I’m sure is in your head. And just sort of we’re sort of translating this. When you wake up every morning and the first thing you’re doing when you’re in the intelligence community is looking over either the PDB, the presidential daily brief or the material that’s going to go into the PDB day in and day out. You are doing that. And to be clear, seven days a week. When I say seven days, there’s no hyperbole there. Seven days a week. And the top priority of your bosses is American safety. That another bomb will not go off. The idea that you’re risking our security people who are not prepared is I find just so remarkable, especially these are this is somebody like Donald Trump has been in the position.
Mary McCord: So, yes.
Andrew Weissmann: It’s not like he doesn’t know.
He should know the type of intelligence coming in, although there’s been lots of stories about how much attention he paid to those things, etc.
So what I do want listeners to know, because it’s about time for us to take a break and move on to the civil cases, is that we will be doing recording later this week, one of our bonus episodes, for the MSNBC premium subscribers, which will focus on some of the proposed nominees for these national security positions, what that might mean for our relationships with our allies and for national security writ large.
And also kind of go back a little bit into some of the national security threats we saw that we did talk about a little bit on this podcast before the election in terms of Russia’s interference, Iran’s interference, China’s interference or attempted interference, I suppose I should say. Certainly influence operations and how those kind of things, when we’re talking about some of these nominees, could be made more dangerous, or proposed nominees, I should say.
Andrew Weissmann: So let’s take a break. We’ll come back and talk briefly about the Hunter Biden pardon. And then, Mary, I’m really interested to learn from you about the pending civil cases in D.C. And we’ll come back and talk about that.
Mary McCord: Sounds good.
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Mary McCord: Welcome back.
Well, as we just teased before the break, we do want to talk briefly about the immediate post-Thanksgiving announcement out of the White House, which is that President Biden has issued a full pardon for his son, Hunter Biden. And that is not just for the crimes for which he was found guilty after trial related to inaccurate information he put on forums when he purchased a gun about whether he was using drugs or was a drug addict and also tax charges that he has already pleaded guilty to. It’s any offenses for the period of time starting in 2014 through the end of this year. So a 10 year period of time.
Andrew Weissmann: Right.
Mary McCord: I did not find it totally surprising that he would pardon his son. And I want to get your reaction. But, of course, he had said he was not going to do that.
Andrew Weissmann: Yeah, he definitely had said that. And that’s sort of, to me, the biggest quibble. And I’m going to turn to that. But first, people should know that the Constitution gives the president exclusive and preclusive to use the sort of technical legal term power to pardon. And you and I can both think of examples by Republican and Democrats where there have been, at least in my view, abuses of that power.
The sort of traditional way when you think about sort of proper uses of the pardon power is you think of our mores have changed. We no longer think of like drug offenses as requiring the same kind of draconian.
Mary McCord: 30 year sentences and things for five grams of something.
Andrew Weissmann: Or somebody, an individual who has committed a nonviolent crime and has already done a substantial amount of time and has been exemplary in their prison behavior. She or he or they receive an individual pardon. Sometimes they’re commutations, meaning the conviction stands, but the sentence is over.
Mary McCord: Yes.
Andrew Weissmann: And concluded, those are sort of the traditional ways in which you see what I would call proper or non-objectional uses of the pardon power. But you and I have seen it in other ways. Obviously, in the Donald Trump administration, I saw it with respect to, I think, every single person who did not cooperate in the Mueller investigation was pardoned.
Mary McCord: Yes.
Andrew Weissmann: Notice, but if you cooperated, then you don’t get a pardon.
Mary McCord: You don’t get a pardon. Yes.
Andrew Weissmann: Interesting. Yes. So what do you think the message is there? So that’s using the pardon power in terms of helping friends. And that to me is the abusive use of it.
So here you have a father who has pardoned his son. And when you think about is there a category that would make this fall into the category of a legitimate use versus what I would personally view as not a legitimate use, I think of two things. One is the question of, yes, a father pardoned his son, but I think that there’s a substantial reason to think that the son would not have been investigated or prosecuted or treated in that way, but for the fact that he was the son.
Mary McCord: And that’s exactly what President Biden said in his personal statement that he put out to go along with this pardon. He thinks that that’s exactly what happened.
Andrew Weissmann: And the reason I think that justifies, I think, this longer period, which is the 2014 to 2024, is the concern that you have the incoming president and people around him who have stated that they’re going to go after certain people and that --
Mary McCord: The Biden, quote, unquote, “crime family.”
Andrew Weissmann: Exactly. And so when you have that in the mix, it is a second reason for granting a pardon and for it being broader.
Mary McCord: I should note on that, Andrew, Congress investigated.
Andrew Weissmann: Exactly.
Mary McCord: There’s been investigations into other potential offenses committed by Hunter Biden that did not result in --
Andrew Weissmann: Right. In other words, it’s not like, oh, but wait a second, he’s pardoning him for something, but something may be there. There’s no reason to think there’s anything there because we’ve had not just Congress, but also a special counsel who has been like, looks, seems to be boiling the ocean over this and has come up with these two what I would say is either rarely prosecuted or relatively minor offenses or a first time tax offense. I have personally never seen a gun charge based on being addicted.
Mary McCord: At least not like standalone. I could see it potentially being part of a package of charges related to guns that then is plea fodder, right? A way to say, how about you plead guilty to this? But like a standalone, I’ve never seen it either.
Andrew Weissmann: And so what has changed? I mean, because obviously, Joe Biden has said that he wasn’t going to do this. I do think that, you know, one way that you could argue that this is understandable is that facts change because you have Donald Trump having won the election and the stated view with respect to Hunter Biden and as you pointed, the so-called Biden crime family.
So I think that, you know, that to me is the biggest quibble is that I personally think this is like a tempest in a teapot because we’ve had so many examples, as I’ve said, of Democratic and Republican presidents abusing the pardon power, Donald Trump himself being, you know, a prime example that this just doesn’t rise to the level. If his name were not Hunter Biden.
Mary McCord: No one would be batting an eye.
Andrew Weissmann: I mean, this is not Rod Blagojevich who Donald Trump pardoned. I mean, he was a perpetrator. He had been convicted. And so there was just this panoply of people who just you thought didn’t in any way, shape or form deserve leniency. They didn’t fall into any of the categories I talked about.
So anyway, that’s sort of my general take. Do you have a different take since we always are in violent agreement?
Mary McCord: Right. Yeah. I think also and I’m not trying to make excuses for President Biden. I think there are changed circumstances. I think probably if the results of the election have been different, I’m not sure we would have seen this because I don’t think he would have been as concerned about sort of continued retribution. I mean, not only do we have Donald Trump continuing to say essentially we need to be going after the Biden quote unquote Biden crime family, but he’s even wanting to reopen. You know, notwithstanding that lots of investigations have taken place that have never proved up this more extensive sort of criminal conspiracy. He’s also saying he wants his Department of Justice to reopen investigations into whether there was fraud in the 2020 election. Right. Something that’s been investigated and investigated in case after case thrown out of court.
So it’s like this notion of constantly wanting to look back, want to look back and to engage in retribution is something that I think, as you said, the president had to take seriously, which is sort of a change in circumstance.
And the fact is, you know, in addition to being the president, he is a father and this is his son and they are human beings. And these are the things that people when they have the constitutional authority to do it with no questions asked and no ramifications. I mean, that’s one of those things when we talked about the immunity decision being so expansive because it seemed to expand the core constitutional functions of a president. This is when we gave us an example of an actual core constitutional function, which is the pardon power. So I’m not particularly surprised. These are not the crimes of the century. And we can move on and I’m sure we’ll get criticism for saying all of this.
But speaking of that, let’s do this.
Andrew Weissmann: Yes, exactly. And, you know, this reminds me under Director Mueller, it was like, you know what, we’re going to be criticized at the FBI. Either the right’s going to be unhappy or the left is going to be unhappy or the right and the left are going to be unhappy. And it doesn’t really matter because he was like, if you just keep your head down and do the right thing, what you believe is the right thing. That’s the answer. And be willing to explain it.
Anyway, with that, Mary, we have spent so much time in this podcast over the last year plus talking about these four criminal cases. And one thing we’ve not spent a lot of time on is the fact that there actually are a series of civil cases that involve Donald Trump in various ways and other people that are pending in Washington, D.C. federal court. And we’re not going to have time to go through each of them in gory detail, but we thought it would be important for listeners to know that that is still there and ongoing and something worth keeping an eye out.
So give us a rundown. What’s what is pending and why should we care about these cases?
Mary McCord: Yeah. And what’s interesting about these is these are directly related to January 6th, what happened on January 6th. And then in one of the cases, the lead up to January 6th, unlike, for example, other civil cases we’ve talked about, including E. Jean Carroll’s, which has nothing to do with official acts or anything that the president even did while he was in office, the former president did while he was in office or, you know, the New York attorney general’s civil fraud case. Again, that was not about things that Donald Trump did when he was in office.
These are cases that have a lot of overlaps with the criminal charges that have now been dismissed related to January 6th. So there are a group of cases, four cases brought by members of Congress, law enforcement who were working on January 6th, and some others based on the violence of that day, the violence toward them and seeking to hold Donald Trump and members of the Proud Boys, members of the Oath Keepers, and some others in Donald Trump’s circle seeking to hold them liable for injuries as a result of that physical and violent attack on the Capitol.
Andrew Weissmann: I think you said one of the cases actually is involving the lead up.
Mary McCord: That’s the other one I was just going to move to. This is one that actually had been filed before January 6th.
Andrew Weissmann: Yeah, which is interesting.
Mary McCord: Yes. And this is really a voter case by people alleging that there was a concerted and conspiratorial effort to deprive people of their vote. You know, this was brought after the election in 2020, but before January 6th. So that case is pending before Judge Chutkan, ironically enough. And the other cases are all pending before Judge Mehta.
Now, those cases are civil cases, right? They’re not criminal. But still, we know that even in a civil case, a president is immune from civil liability for conduct within the outer perimeter of his official act. So we’re back to this idea of immunity. And in the series of cases brought by Congress members and law enforcement, Judge Mehta had issued a preliminary ruling about, denying a motion to dismiss, a preliminary ruling about whether some of the things that were claimed in the complaint were protected by the First Amendment, saying at least at this early state, there’s enough here to show incitement to imminent unlawful violent activity that is not protected by the First Amendment. So we’re going to let this case go forward. And there were also rulings that he made about whether the things that Donald Trump claimed in these civil complaints, I don’t like to use the word charged with because that suggests, that’s a criminal term. They’re not criminal charges. They’re civil complaints that those things were within the outer perimeter of the official acts.
That decision went up to the D.C. Circuit. The D.C. Circuit issued an opinion, I believe, in December of 2023, they did not reverse anything, but they sent it back down saying the difference between official acts and unofficial acts is really lies in what capacity was Donald Trump acting in. Was he acting as an office holder doing this as part of his role as president or an office seeker, a candidate for office, the latter being unofficial?
The Supreme Court in its immunity decision in July in the criminal case cited favorably that decision. That decision is called Blassingame v. Trump cited favorably this distinction between office seeker, office holder, president, candidate, and sent the criminal cases back for a deeper dive into which was Donald Trump in these various phases of the actions he’s charged with. So that’s where we’re at in this civil case. It is now, you know, post the D.C. Circuit decision, post the U.S. Supreme Court decision. They are engaged in discovery about these roles, discovery, meaning exchanging of documents, depositions about to try to ascertain what role was Donald Trump serving in. And then we will see new motions, I think, for summary judgment or to dismiss on immunity grounds after that discovery is finished.
Andrew Weissmann: And obviously we don’t know all of the discovery, but what has been revealed so far, certainly in connection with the criminal case and what’s been, you know, where there have been substantial briefs on this issue, the plaintiffs like Jack Smith have very strong arguments, at least in what we can see so far, that obviously Donald Trump was acting as a candidate. And so that’s not within his official scope.
And in fact, the Constitution structurally makes that distinction in terms of how you would treat them.
One question for you, Mary, that our listeners may have, which is we started out by talking about the New York case and this issue of temporary immunity, not presidential immunity for all time, but this idea that while you’re president, you cannot be criminally prosecuted. A DOJ policy on that may or may not conform to the law, but these are civil cases. And so what happens to them? Do they get to go forward or did they also have a problem in terms of temporary immunity for a sitting president?
Mary McCord: So based on existing case precedent from the U.S. Supreme Court in the Clinton v. Jones case, right?
Andrew Weissmann: And remind us that would be.
Mary McCord: Yes, that would be allegations of sexual misconduct by the president, by former President Bill Clinton. And that was personal. And the Supreme Court said personal civil cases about personal acts can go forward. The immunity from any charges at any point, you know, is with respect to the outer perimeter of your official acts. But there’s no reason to have this temporary immunity for a sitting president when it’s about personal conduct.
Andrew Weissmann: Right.
Mary McCord: And civil side.
Andrew Weissmann: And Bill Clinton, I think, had made the argument like, no, it’s too much of a distraction. And the court said, no, it’s not. And if you remember, he had to be deposed and there was a form of deposition while he was the sitting president. He got into a lot of trouble, deservedly, in terms of his very famous answers. This sort of depends on that where he says, you know, it depends on what the definition of is, is.
Mary McCord: Oh, gosh.
Andrew Weissmann: Just to take us all back.
Mary McCord: Yes. And as you were saying, Bill Clinton made the argument this would be too much of a distraction, etc., etc. A lot of the same arguments that the Supreme Court, you know, has accepted with respect to why it’s such a burden for a president to be, whether sitting or not, frankly, to have to be drawn into criminal litigation. To be clear, ultimately, this matter settled. But at the time, the issue was whether the civil case could go forward while Bill Clinton was a sitting president.
But the Supreme Court in the Clinton case said civil is different than criminal. Civil, there’s a lot more flexibility for a judge to work with the president’s schedule. He doesn’t even have to be in court for all of the different proceedings.
Andrew Weissmann: And to be fair, the Supreme Court hasn’t weighed in on the DOJ policy. The DOJ policy is we do not bring a criminal case while the person is actually the president. Obviously, when they’re no longer president, fair game.
The Supreme Court, and frankly, has never been asked to weigh in on that. But they only have done so on the civil side, saying civil can go forward. So whether criminal could go forward or not, we don’t know the answer to that.
Mary McCord: We won’t know, because the DOJ policy is binding on DOJ. And that’s why Jack Smith dismissed.
Andrew Weissmann: Exactly. The only way it could sort of happen is at a state level. And so that could bubble up. So those civil cases that are pending in D.C., while many of our listeners may be like, well, that’s not criminal accountability. There still could be civil accountability. And we’ve obviously seen in other contexts, whether you mentioned E. Jean Carroll or Ruby Freeman and Shea Moss with respect to Rudy Giuliani. We’re here in New York City where he was quite famously the mayor during, to bring it back to 9/11, sort of maybe the high point of his career in terms of how he handled that crisis. There really can be sort of serious civil consequences. And so it will remain to be seen what the discovery is, what the judges do. You can be sure this is the kind of issue that will bubble up. It may even go to the Supreme Court. But we’ll see how that fares. But there’s pending civil cases.
Mary McCord: And certainly the opportunity for a lot more facts to come out through these civil cases. Interestingly as well, it’s quite possible that the plaintiffs in these civil cases will benefit from Jack Smith’s final report on the January 6th investigation. And we will see if they are able to kind of use some of the evidence from that, potential new witnesses, etc. in their civil cases.
Andrew Weissmann: Do you know what’s going on? The balloon over my head, Mary, is emergency episode where the two of us are racing through the report.
Mary McCord: Speed reading.
Andrew Weissmann: And each saying, okay, what are the five things? And you know, it’ll be interesting whether we-
Mary McCord: It’ll be a double lung.
Andrew Weissmann: No, because we’ll have our reports. We’ll have tabbed it and all that. Yes, we will. And it’ll be the same five things.
Mary McCord: You’re probably right. You’re probably right because that always happens. I remember the last time we were sitting here, we each had notebooks of something we had just read and we had written down our top things and they were the same things.
Andrew Weissmann: And I remember you going, wait, look at my piece of paper. I wrote the same thing. You were like, I underlined it in yellow. Here it is. People have to trust us because they can’t see it.
Mary McCord: That’s right.
Andrew Weissmann: So Mary, we’re going to be talking later this week on our bonus premium episode. But in the meantime, it’s so nice to have you and to host you in New York City.
Mary McCord: It’s very fun. I’m enjoying it.
Andrew Weissmann: So, thank you all for listening. And remember to subscribe to MSNBC Premium on Apple Podcasts to get the show and other MSNBC Originals ad free.
Mary McCord: And to send us a question, you can leave us a voicemail at 917-342-2934 or you can email us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Katie Lau and Rick Kwan. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.