There’s been a flood of activity recently in Judge Tanya Chutkan’s DC courtroom. In the last week, she released a 50-page ruling on several outstanding issues including the Brady doctrine, a pretrial discovery rule requiring the government to share all exculpatory evidence with Donald Trump’s defense team. MSNBC legal analysts Mary McCord and Andrew Weissmann shed some light on the judge’s decisions and detail the release of the Special Counsel’s heavily redacted appendix, which was unsealed last Friday. Also in the hopper: an explainer on Jack Smith’s response to a renewed motion from Trump’s legal team to dismiss the DC case based on the Supreme Court’s Fischer decision on obstruction. And lastly, Andrew and Mary head to Florida where Ryan Ruth, the suspect in the second assassination attempt against the former president, asked Judge Aileen Cannon to recuse herself from the case.
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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, bright and early, but not too early.
Mary McCord: Not that early. Right, not that early.
Andrew Weissmann: Exactly.
Mary McCord: 8.30.
Andrew Weissmann: I’m Andrew Weissmann, and the other voice you heard is Mary McCord.
Mary McCord: Yes, good morning.
Andrew Weissmann: By the way, I also got a lot of feedback on the 8:30 versus 10 o’clock.
Mary McCord: Yes.
Andrew Weissmann: As you could expect as an inveterate New Yorker, a lot of my New Yorker friends were like, “I’m with you.”
Mary McCord: That’s true. I’m sure that’s true.
Andrew Weissmann: So I have a lot of people weighing in on the 8:30 is early.
Mary McCord: Yeah, yeah.
Andrew Weissmann: Anyway, this is our second time, I think, doing this quite early.
Mary McCord: Third in a row.
Andrew Weissmann: Or normal hour.
Mary McCord: Third in a row, yeah.
Andrew Weissmann: Oh my God, you’re killing me.
Mary McCord: Yes.
Andrew Weissmann: Okay, Mary, it’s so interesting because there actually is a lot going on --
Mary McCord: Tons.
Andrew Weissmann: -- in the legal world.
Mary McCord: Yes.
Andrew Weissmann: But obviously the elephant in the room is everyone’s focusing on the election and what’s going to happen there. But today we’re going to actually talk about a number of things that are happening in the legal space that have gotten some or almost no coverage.
Mary McCord: Right.
Andrew Weissmann: So Mary, what’s on our dance card for today?
Mary McCord: Yeah, lots of things happened in the January 6th case last week that we’ll cover, including Judge Chutkan’s denial of Trump’s motion to stay the release of the appendix and the release of the redacted appendix on Friday, which I think for many people probably was a disappointment because it was so heavily redacted, but we’ll talk about that.
There was also last week a lengthy ruling on Trump’s discovery requests and his request for information under the Brady Doctrine, which we’ve talked about in past episodes. But we will talk about again today. And there was also Jack Smith’s response to Trump’s renewed motion to dismiss based on his argument that after the Supreme Court’s decision in Fischer, the obstruction and conspiracy to obstruct an official proceeding counts have to be dismissed. So we’ll talk about that.
And then we’ll jump down to Florida, where Ryan Routh, the suspect in the second assassination attempt against former President Donald Trump, has moved for Judge Cannon to recuse herself, which I think is quite interesting. She was assigned that case, the criminal case against him. So tons going on, actually, in the week since we spoke.
Andrew Weissmann: Yeah. And I think our teaser here is the Ryan Routh recusal motion is, I think, something that people are going to be really interested in.
Mary McCord: Yes.
Andrew Weissmann: We actually have the motion, and we have a very brief response.
Mary McCord: Very brief.
Andrew Weissmann: By the U.S. Attorney’s Office down there. So I’m not going to give any spoiler alerts. I’m going to control myself, even though it’s 8:30 in the morning and it’s hard to have any control whatsoever other than knowing that I need more caffeine.
But anyway, let’s turn to our first --
Mary McCord: Yes.
Andrew Weissmann: -- topic. It’s really going to be talking about various things that have been before Judge Chutkan that she ruled on. Why don’t I set the table on the appendix and then we can then talk about it, which is if people remember, there were sort of two filings that Jack Smith had made. There was the brief and then there was a number of appendices with the actual material that supported what was going on in the brief. And the brief had had there was litigation with both sides saying what should be redacted and not redacted. And the judge decided that. And one of the sort of mistakes I think that Donald Trump’s team made is they didn’t say, “Judge, if you rule against us, give us time to potentially appeal.” So the judge just ruled and there was no request to stay. So they got unsealed.
Mary McCord: Well, hang on. I just want to make sure people understand what you’re talking about. You’re distinguishing the brief, as you said, from the appendices. He did not ask to stay the publication of the redacted brief.
Andrew Weissmann: Exactly. So that’s with respect to the brief. And now we’re turning to the litigation over the appendices. And that the government had said that they were proposing what should be redacted. They’d already signaled that they intended to and they were planning on redacting or proposing to the judge that a lot of it be redacted.
Mary McCord: Right.
Andrew Weissmann: So it wasn’t like a surprise. And then Trump here actually learned from his lesson on the brief and said, you know, we oppose that. But if you disagree, we’d like time to figure out what our next steps might be essentially.
Mary McCord: Right. What they said was, and this had happened by the time we recorded last week. They had asked for seven days to assess their litigation options, right?
Andrew Weissmann: Exactly.
Mary McCord: And when we recorded last week, the judge, Judge Chutkan, had given them seven days until Thursday of last week to file something. And, you know, you and I speculated they would go up to the court of appeals —
Andrew Weissmann: Yeah.
Mary McCord: in some way, shape or form. Either a mandamus petition or try to turn this into an appealable order. But that’s not what they did.
Andrew Weissmann: So what happened?
Mary McCord: So instead, they came right back to Judge Chutkan and said, now we just want to ask you, Judge Chutkan, to continue the stay until November 14th, which is the day that Trump is going to file his response to the immunity brief and any appendixes that he has. And his point was, look, that is the only way that it could be fair. We can’t let Jack Smith get out there with his materials before we have a chance to file ours. That would prejudice potential jurors. It would endanger potential witnesses, especially in light of the extraordinary media coverage of this case, et cetera, et cetera. Again, making no actual legal argument based on the factors that apply to redactions and when things can remain under seal but just simply saying, look, it’s not fair to have essentially, to have Jack Smith go first. So that kind of hit the ground with a thud, I would say.
Andrew Weissmann: This is my favorite. So Judge Chutkan, being ever responsible and fast and putting everything in writing issued a decision on that, denying it. But one of the points that she made, which I loved, was, you know, you were the one, the defense, that said that you wanted to have more time to respond.
Mary McCord: Right.
Andrew Weissmann: But there is nothing on God’s green earth that prevents you from responding earlier.
Mary McCord: That’s right.
Andrew Weissmann: You asked for more time to respond. But if you think it’s so important to get out there with some counterproof and to refute the hundreds and hundreds of almost 2000 pages, if you want to put your position out there sooner, there is nothing that prevents you. It’s not like her order said you cannot file.
Mary McCord: That’s right.
Andrew Weissmann: For November. And so, you know, essentially, it’s like, you know, you’re really concerned about is the election. And if you really want to have your story out there, go ahead and --
Mary McCord: Get it out there.
Andrew Weissmann: -- I am reminded. Remember about a year ago, Donald Trump publicly said, I am going to have a press conference, and I am going to reveal dispositive evidence that I am innocent and that I didn’t do anything wrong. And it’s dispositive. And then the day sort of came and went, he said, you know, I’ve talked to my counsel, and we think we should wait and we’re going to do it in court. Well, you know what? That court date, we’re still waiting.
Mary McCord: Yes, yes. Although, to be fair, you and I both, if we were his lawyers, would have said, no, we are not going out there when we have pending litigation and a criminal case. We are not going out there in a press conference to put our evidence on the table.
Andrew Weissmann: Absolutely. But then they said we’re going to do it in court. Well, it’s time.
Mary McCord: Do it.
Andrew Weissmann: I mean, this is the one where the judge basically is like, be my guest. If you want to respond, if there’s something that’s wrong, go ahead and do that. So in many ways, my big reaction to all of this litigation, because you had almost 2,000 pages of heavily, heavily, heavily redacted material, but it was all of that and zero on the other side.
Mary McCord: Yeah.
Andrew Weissmann: And it just reminded me so much of, you know what? I’ve got all this evidence out there that shows I’m innocent. I’m just not telling you.
Mary McCord: Yes, that’s right. And, you know, when you do get little peaks, it’s really just alternate facts, which we’ll talk about a little bit later, because that was a big part of Trump’s motion to dismiss the obstruction offenses. There’s one other part of Judge Chutkan’s ruling that I think is worth talking about, and that has to do with her response to the argument, essentially, that this is election interference by allowing Jack Smith to file and to make public these, not only the immunity brief that had already been made public, but also the appendices.
And Judge Chutkan takes that on directly. She says, “There’s undoubtedly a public interest in courts not inserting themselves into elections or appearing to do so. But litigation’s incidental effects on politics are not the same as a court’s intentional interference with them. As a result, it is in fact defendants’ requested relief that risks undermining that public interest. If the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute or appear to be election interference.” She then goes on to say, “I’m going to continue to keep political considerations out of my decision-making rather than incorporating them as the defendant requests.” And, you know, this reminds me of cases that I worked on, investigated, and prosecuted when I was criminal chief in D.C. And I know you’ve probably had some like these too, Andrew, where we were investigating someone holding office, an incumbent in office who was also running for re-election. And we did start to get, we had already had a few guilty pleas by other people involved in the conspiracy that was alleged in that particular investigation. And those things had happened before the election. But as we got closer and closer to the election, we did worry about this appearance. Now, granted, we’re the prosecutor, not the judge and not the court, but we worried about taking overt actions. Just as we’ve talked about in the past, DOJ does not take overt actions for the purpose of influencing the election. So we worried about taking any additional steps or having any additional guilty pleas as we got closer to the election. But I honestly also worried about not doing those things because if you do them right after the election, right after the person has won, you would also have the public saying, “Oh my gosh, I wish we’d have known that before we went and voted.” So it’s kind of a damned if you do, damned if you don’t in some of these circumstances, but particularly here, where as Judge Chutkan says, we have ongoing litigation. This wasn’t DOJ taking a new overt step. You and I both have written and published about this. This wasn’t them violating DOJ guidance. This was just the judge saying, “We’re in the middle of a case. We’re proceeding according to the Supreme Court’s directive, remanding this case. We have scheduling orders, and I’m not going to let the impending election influence my decision making.”
Andrew Weissmann: Listeners will remember from last week, Mary, when you and I talked about the fact that there were some people who were sort of saying this would be election interference and then sort of siding with this sort of Trump argument. And I just think that what you’ve pointed out is, although you and I have both written on this in sort of a, not a length-length, but you know, in fairly good detail and sort of pointing out DOJ rules. There is such a pithy response to this, and it sort of very much relates, as listeners will remember, to the discussion we had last week on this. Mary, should we turn to what’s in --
Mary McCord: What’s in the appendix?
Andrew Weissmann: Because, you know, I thought there was very, very little that was new. I was not surprised, given what the prosecution had said about it. And, you know, most of what I saw was material that was already known or very much already public, so that there was press announcements or filings in court. And even those --
Mary McCord: I made a list. I can kind of go through it --
Andrew Weissmann: Yeah.
Mary McCord: -- if people want to know. You’re right. Almost all public.
Andrew Weissmann: And even some of the public things, it’s important to note, even if you’re talking about Donald Trump’s tweets, they made an effort, the government did, to redact specific names, clearly for security reasons. So just hypothetically, because I don’t know what’s under the redactions, but for instance, if he is commenting on Ruby Freeman or Shea Moss —
Mary McCord: That’s right.
Andrew Weissmann: Such as an example, they’ve already been, they’ve suffered, and they proved how much they’ve suffered and been vilified. And so this was basically the government’s effort to not pile on and to protect those people.
Mary McCord: Right. So for people who are wondering, why did we have a brief and appendices? So when you write a brief, you’re writing assertions. And in the case, we talked about Jack Smith’s brief, about he was proffering to the court the evidence that he plans to use to prove up the offenses charged. And redacting names there as well, and also redacting the sources for specific grand jury testimony, other interviews with the FBI, et cetera. But what you don’t have in your main brief is the actual underlying documents you’re relying on. Those you add as appendices or exhibits to the brief. And that means what you’re putting in these exhibits is the original source material. Right? So in this case, appendix one is at least the unredacted parts. Again, the vast majority of these nearly 2000 pages are just blank pages because they’ve been redacted. But what we can see, appendix one, is parts of transcripts from interviews of different people with the House Select Committee. Right. And you can glean who some of those are when you read it. And those are supporting things like Mr. Trump doing things in his capacity as a candidate. Remember, his personal capacity, which would mean, one, it’s not an official act. And two, you know, it helps to prove the actual offenses. He’s doing things as a candidate who’s trying desperately to stay in office, even if that means overturning the results of the election. Appendix two, you already have referenced the parts that you can see are mostly tweets and social media posts redacted of sensitive personal information. But things that, again, go to Trump’s state of mind, his capacity as a candidate, as opposed to acting in his capacity as a president. Appendix three has press releases, public documents, court records, Kenneth Chesbrough’s memos about the fraudulent elector scheme and the actual certificates, the actual fraudulent certificates. Because remember, two of the counts are obstruction of an official proceeding and conspiracy to obstruct an official proceeding. And one of the ways that that obstruction is alleged to have occurred is by the production of this false evidence, which we will talk about shortly this afternoon or this morning. See, I’ve gone from 8:30 straight to the afternoon.
Andrew Weissmann: Caffeine, caffeine, Mary.
Mary McCord: And then finally, Appendix four has got sort of a mishmash of lots of lots of things. It’s got the John Eastman memo. It’s got meeting notes from meetings with the president on January 5th. It’s got statements that like the text of statements that Trump made on January 6th, including when he told people to go home. It’s got the vice president’s written statement on January 6th about how he did not have the authority to refuse to count the electoral votes.
Andrew Weissmann: It’s public statement.
Mary McCord: Public statements. That’s right. Public statements. So at any rate, that’s kind of a little bit of a synopsis of what’s there? You can scroll through it. They’re publicly available, but you’ve got to do a lot of scrolling to find the unredacted portions.
Andrew Weissmann: Yes, absolutely. So I think we all agree this sort of very little there. It did make me wonder, Mary, just exactly why Trump even was sort of opposing this, because —
Mary McCord: Yes.
Andrew Weissmann: You know, he made it sound like this was going to be like and everyone’s sort of thinking, well, the government told us there wasn’t much there. But since Trump is opposing it, maybe there’s really going to be more there. And then you realized it was I mean, this is sort of my term, and I don’t mean this is like a legal term, but it was kind of frivolous. I mean, there’s just so little there to complain about. So it made it seem to me like their filing was more sort of like a press filing to be like, oh, let me talk about how Jack Smith is trying to tar us and feather us with all sorts of bad evidence. Then you look at what they did and there’s just nothing there. And you can tell —
Mary McCord: Nothing new there. I mean, it’s important evidence. Right. But nothing that’s a new bombshell.
Andrew Weissmann: Yeah, exactly. And whatever is there, that is important is presumably there’s so much that’s under seal. And so to my mind, it sort of undermined the credibility of the filing by Trump. But it also showed that Jack Smith was being super responsible. In other words, to go back to the discussion we had last week about was Jack Smith doing this for the purpose of affecting the election? I mean, this is like exhibit A, to the fact that they’re not because I mean, so much of what was filed was redacted. And the things that weren’t were things that were almost entirely known, if not entirely known beforehand.
Mary McCord: And I think that’s in large part probably why Trump’s team didn’t try to go to the circuit.
Andrew Weissmann: Exactly.
Mary McCord: To the court of appeals because it just wasn’t worth it.
Okay, should we wrap up this segment and come back after the break and talk about two other important filings in the D.C. case?
Andrew Weissmann: Yeah, absolutely. I actually can’t wait to talk about Brady. Let’s take a break and come back.
Mary McCord: Okay. Sounds good.
(BREAK)
Mary McCord: Welcome back. Well, as promised, we do want to spend a little bit of time talking about something that has gotten almost no coverage so far as I can tell. And I think in part that is because, as you indicated at the top of the episode, there’s so much focus right now on the election just a couple of weeks away. But there had been for a long time a motion pending that finally got fully briefed after the remand from the Supreme Court because it was on hold like everything else while this case went up to the Supreme Court. And there was still one more brief to file afterwards. And that was Donald Trump’s extensive motion to compel discovery and to compel the government to turn over additional discovery material and additional Brady material. And so, as folks will remember, a year ago, more than a year ago, the government turned over lots and lots of discovery. Discovery means documents, evidence, transcripts, reports, information that is necessary for a defendant to defend his case under the rules of criminal procedure. Lots of that was turned over. And the government also turned over lots of Brady information. Brady refers to a Supreme Court case, Brady v. Maryland, which is about due process, which says that in addition to just turning over the discovery material, the government has an obligation in order to preserve a defendant’s right to a fair trial to turn over the defendant any information that is either exculpatory, meaning would tend to show that the person did not commit the crime, or is impeaching, meaning it’s information that might impeach the credibility of the government’s witnesses or the government’s evidence.
So, say, for example, you have a key eyewitness to a homicide, yet there’s a bunch of information the government has that that eyewitness is a perpetual and serial liar and has lied in many other criminal cases before and been found to be a perjurer. If the government didn’t turn that information over the defendant, that would be a due process violation. So that was the motion outstanding. The government basically said, hey, we’ve provided huge, voluminous amounts of discovery and voluminous amounts of Brady. And now what Mr. Trump is seeking is beyond our obligations. And he’s also seeking for us to turn over information that is not in the custody or control of the prosecution team, because all the stuff I’ve been talking about, discovery and Brady, all applies to things that the prosecution team has control of. And so these are some of the issues that were before Judge Chutkan when she issued her ruling last week.
Andrew Weissmann: So, as we mentioned, it’s 50 pages. She goes through it meticulously and she divided the ruling into two parts. The first part is the what, and the second part is sort of the where. And what I mean by that is she went through on the what part, what information does the government still need to look for to the extent it hasn’t already? And she goes through all of the different types of material, and I’m going to point out a couple of them that are just sort of interesting. And then she rejects everything but three areas where she said that she wants the government to look for this information to the extent it hasn’t already, because she said they may in fact have already done this, in which case all they have to do is say they’ve actually already complied. Then with respect to the second part, the where, that goes to what you were talking about, Mary, at the end, which is something that comes up a fair amount, which is what is the scope of the prosecution team? So where you have a very discrete case, let me just give an example, where there’s just like a couple prosecutors and some agents on a case, the prosecution team could be a very discrete unit of like what do those people have possession, custody, or control of. But where you have a case that’s quite extensive, where you’re coordinating and working together with other parts of the Department of Justice or other agencies, the court could say, well, there’s such a close relationship that for the purposes of Brady, I am going to say that the prosecution team includes these people and those people.
So the second part of her decision is about that. Let me give you an example of that, which is when I worked on the Enron case, we had a close relationship with the SEC.
Mary McCord: Right.
Andrew Weissmann: And there was a lot of coordination on a variety of issues, not every issue. They couldn’t get grand jury material under the rules but leave aside those technicalities. We had to, for the purposes of what files to search, we had to make sure as criminal prosecutors that we were also producing to the defense material that was in the possession, custody, or control of the SEC because of that close working relationship. And so that would be an example of where you’d have a more expansive view. And obviously the SEC is huge. Now it wasn’t all of the SEC because it would just be the part of the SEC that was working with us. And the reason that’s important, because some people might be thinking, well, why not just make it the entire government is the entire government is, you know, tens of thousands of people. And you would just, I mean, if the rule were that, you would shut down every criminal case because you can’t possibly, I mean, just think about all of the people who are outside of the Department of Justice, or even if you’d limit it to all of the Department of Justice. Are you supposed to go to every single office in every single part of the country where they had absolutely no role in a case? So the court’s basically looking for that sort of connectivity of a particular group with the prosecution team. So that’s sort of the background. And should we start with what the three things are that she ruled on and said that they are something that Donald Trump is entitled to if he hasn’t gotten it already?
Mary McCord: Yeah, and I think this factors right into how I was describing exculpatory impeaching evidence, right? Two areas of the things that she ordered the government to search for and produce if they hadn’t already, or make an argument why they shouldn’t, things that would be impeaching of the government’s evidence. So one of the areas are materials related to the director of national intelligence, and that’s because the director of national intelligence is a potential witness. He briefed Mr. Trump about there being no foreign interference that would change the results. And so because of that, the government, said Judge Chutkan, has a duty to search for and produce, if it is in its control, any information that could potentially impeach the testimony of the director of national intelligence on that topic of foreign interference. Right? Trump has said all along, my claims of election fraud are supported because of the possibility of foreign interference, supported by many things. He also claims that there were dead people voting and all that. But one of the things he’s tried to say is I was reasonable in arguing that there was election fraud because my own folks had told me that, you know, the Russians were trying to interfere, the Iranians were trying to interfere, the Chinese were trying to interfere. And so I should be able to use that as a defense. The government has said, look, we’re going to call the DNI, that’s what we call the Director of National Intelligence, the DNI, to say he had briefed Trump that there was not enough foreign interference, no foreign interference would change results. And certainly, no interference in the actual changing of votes. You know, there were rumors out there about actual interfering in the tabulation systems, the computer systems tabulating votes. Zero evidence of that whatsoever. We have foreign influence operations, which we’ve talked about. So that’s one area.
She says, there might be impeaching information that the government at least has to search for, that Trump could then use at trial to impeach the DNI as a witness.
Andrew Weissmann: Can I just interrupt there and say, we’re really talking about because the person might be a witness. That’s right. This is information to see, did that witness say something different?
Mary McCord: Right.
Andrew Weissmann: Exactly. So that it’s about impeachment. It’s not about the substance of something that he may have known that Donald Trump was never told. That’s like a constant theme throughout her decision, which is you cannot ask for information that goes to your state of mind when you have not even alleged that you knew it at the time.
Mary McCord: That’s right.
Andrew Weissmann: Or anyone that you knew directly or indirectly. So the fact that any of this might have been going on is irrelevant to your intent and state of mind because you haven’t alleged that you were aware of any of this.
Mary McCord: Right. And that goes to a lot of things that she denied his request for.
Andrew Weissmann: Exactly.
Mary McCord: So many things that he was talking about. He wanted records from the cybersecurity and infrastructure security agency and records from the intelligence community. But she’s like, you’ve never even alleged that you received any of that information. So how could that affect your state of mind?
Andrew Weissmann: Right.
Mary McCord: The other area of impeachment, and then we’ll move to the third area, had to do with the potential for Vice President Mike Pence to be a witness. Again, this is potential impeachment evidence, as to him. And this is of a very different quality. You know, what Trump does is he raises the investigation into Mike Pence having classified documents in his residence. Listeners will recall that, you know, shortly after the Mar-a-Lago classified documents case became public, there were investigations into both Mike Pence and Joe Biden because of small numbers of classified documents that they found in their own houses.
And so what Trump is saying is that at the time that Jack Smith was investigating this case and perhaps interviewing the former vice president, Mike Pence, Mike Pence may have had a motive to curry favor with the government and testify in ways that he thought the government would be approving of in order to curry favor so that they would not essentially prosecute him for having classified documents in his personal residence.
Andrew Weissmann: So, again, we’re talking about something that happened long after the election, but it goes to the potential for it to impeach the witness.
Mary McCord: That’s right.
Andrew Weissmann: That’s the kind of thing. This is just like the DNI. If they had not been witnesses, potential witnesses at a trial, all of this might have been completely off limits.
Mary McCord: That’s right.
Andrew Weissmann: And that’s the reason. The third and final category, because she’s rejected tons of other things.
Mary McCord: Yes.
Andrew Weissmann: On and on and on about each one. But as I said, key issue was you were not aware of this. You don’t allege you are aware of this. You’re not getting it. The third one was fascinating because it is a meeting between General Milley and Acting Secretary Miller. And the information the government’s got to look for and turn over, if it hasn’t already, is records concerning information about security measures that was conveyed to defendant during that meeting. So, again, it’s records concerning information about security measures in connection with January 6th that was conveyed to defendant during his meeting with General Milley and Acting Secretary Miller. What I find so fascinating by this is this is the information that comes from, wait for it, General Milley, who says that at this meeting that Donald Trump said, essentially, you know, make sure there are enough National Guards so that it’s safe. That is information from General Milley. If you remember, this is the same General Milley who has been denigrated up one side and down the other --
Mary McCord: Yes.
Andrew Weissmann: -- by Donald Trump. But you have to put that aside. This is the government’s obligation.
Mary McCord: That’s right.
Andrew Weissmann: That witness is given information that is potentially helpful to the defense. And what’s useful is, this is, I think, the big picture that is useful for people to understand is the government and the court are taking on this responsibility to make sure that the defense has the information that it needs. First, the government has that obligation, but the court gets to second guess that and make sure that they have turned over everything that’s required by due process. And, Mary, as you and I know from being prosecutors, this is where, as a prosecutor, you wear a dual hat. Yes, you’re bringing the case on behalf of the government, and you want to see justice done and you have a view as to what justice is. But you have the second hat, which is to make sure that the defense has all of the Brady information. Now, there can be good faith disagreements --
Mary McCord: Right.
Andrew Weissmann: -- between the defense and the prosecution, and that is what Judge Chutkan was dealing with. And so this is an example of both the government deciding initially what it thinks is Brady and the court then reviewing that.
Mary McCord: Yes.
Andrew Weissmann: So one of the things that I thought was very interesting here that did get a little bit of attention was this issue where Donald Trump said, I think it is Brady information that people on January 6th, the so-called January 6th defendants, have been saying that what I did was under sort of authorization by Donald Trump. And the government has been saying in those January 6th cases, no, there’s no authorization defense here. And the government, in its brief before Judge Chutkan, said that absolutely, the defendant still bears responsibility, as do the other people who have been prosecuted for January 6th. And you can be complicit and a conspirator and wanting this to happen, and it still isn’t enough to be an authorization defense.
Mary McCord: Right. So I think we’ve jumped to the next motion, but I’m not sure we told the listeners we were doing that.
Andrew Weissmann: It is the next motion, but it came up in the Brady context on pages 17 and 18.
Mary McCord: Right.
Andrew Weissmann: Where the court starts dealing with that issue. But you’re right, it definitely straddles. So should we straddle?
Mary McCord: Yes, let’s straddle on over to that other motion.
Andrew Weissmann: Yeah.
Mary McCord: And this is the motion that was, you know, originally filed before the appeal to the Supreme Court saying the obstruction offenses should be dismissed on statutory grounds because those offenses don’t apply to Donald Trump’s conduct. After the case was remanded, Judge Chutkan denied that motion, but without prejudice for Mr. Trump to refile. He refiled and said, still, even after the Supreme Court’s decision in the Fischer case, the Fischer case was about the obstruction counts with respect to rioters who had argued that their conduct, their conduct of sort of violently attacking the Capitol, whatever it might have been, it wasn’t obstruction of official proceeding, they argued, because obstruction, they said, had to involve the altering or modifying or destruction of tangible records. And so in Trump’s renewed motion, he’s saying, based on the Supreme Court’s ruling, Judge Chutkan, you have to dismiss the obstruction and conspiracy to obstruct official proceeding counts against me. Now, that case, and I want to come to the point you were just making, but just to frame it up, that case, Fischer did limit the application of the obstruction statute, but did also make clear that the statute covers not just the altering or destroying or mutilating documents or records, but also the impairment or attempted impairment of records, documents, and objects by other means, such as by creating false evidence.
Andrew Weissmann: Can you just say that last part again? Because that’s the key.
Mary McCord: The key.
Andrew Weissmann: As to why this is so frivolous.
Mary McCord: That’s right. And that is a quote, “creating false evidence”. That can also be obstruction. And so as Jack Smith says in his response, hello, fraudulent elector scheme, you know that whole thing that’s a big part of the indictment and the superseding indictment and a big part of our immunity brief. That scheme was to create exactly that, false evidence, fraudulent certificates of ballots from seven swing states so that Mike Pence could count those instead of the actual legitimate electoral ballots from those states. You know, this is something we foresaw. This is exactly what Jack Smith is arguing. But as you indicated, Jack Smith also had to respond to a few other arguments that Trump sort of threw in his motion to dismiss that really had almost nothing to do with the statutory interpretation of the obstruction offense. But they were just sort of atmospherical. Here are other reasons why you should dismiss that in this case.
Andrew Weissmann: Yeah.
Mary McCord: And one of them was exactly what you indicated, saying, hey, the government is taking two different positions in the cases against the rioters. They said, rioters, you’re not off the hook just because you think you were doing what Donald Trump told you to do. You’re responsible for your own behavior. You have free will and you’re responsible for your own behavior. Trump is saying that that was the government saying Trump was not responsible. But as you indicated, that wasn’t the government saying Trump was not responsible. It was just the government saying, you individual rioters, you’re still responsible even if Trump did pressure you to do this or ask you to do this.
Andrew Weissmann: Right. Because you know what? You could have two people guilty.
Mary McCord: That’s true.
Andrew Weissmann: And the reason it relates to Brady is because in the context of discovery, Donald Trump said, and see, so I want all that information about what was going on in these other January 6th cases to use the government’s statements in any of those cases against them. And the court wasn’t having any of it saying, you know what? None of that is exculpatory that a conspirator did X doesn’t mean that you didn’t do X.
Mary McCord: That’s right.
Andrew Weissmann: And so that’s why these two motions relate. One thing we should probably just quickly jump back to is, you know, we were talking about the scope of the prosecution team in Brady.
Mary McCord: Yes.
Andrew Weissmann: The court basically said, you know, there’s just no factual allegation with respect to the White House, the attorney general’s office, the deputy attorney general’s office, the DNI to use the acronym that we’ve been using. And just goes through all of the various claims that were being made as to what’s the scope of the prosecution team. And ultimately, her decision, I thought, was like dead on in terms of saying, you know, the full scope of the special counsel’s office, the part of the U.S. attorney’s office in D.C. that had been working on this case.
Mary McCord: Those are covered, just to be clear. Those are definitely part of the prosecution team.
Andrew Weissmann: Exactly. Yes. These are the things that she says are included. And the government wasn’t opposing that.
Mary McCord: No.
Andrew Weissmann: She said, “It’s part of the Department of Justice Office of the Inspector General,” because, again, the government had said that they had worked with the prosecution team. So she said, “With respect to those personnel who did do that, that’s included. The Washington Field Office at the FBI that worked on the case, they’re included.”
Mary McCord: Right.
Andrew Weissmann: So it was all very much logical because it’s the places where documents could be and were likely to be because these people had worked with the prosecution team.
Mary McCord: Right.
Andrew Weissmann: So that was sort of the scope that she was requiring the government to do was not a lot of friction from the government as to, and I suspect that they’re going to do a double check.
Mary McCord: Yes.
Andrew Weissmann: But they haven’t already.
Mary McCord: Yes. One final point. Trump also wanted to consider the House Select Committee to investigate January 6th as part of the prosecution team. And I think the judge rightly said, “That’s a different branch of government, so it’s hardly in the prosecution’s custody when it is held by the legislature.”
Andrew Weissmann: Yes.
Mary McCord: Now obviously, anything the legislature and House Select Committee shared with the prosecution team, sure, of course, that’s fair game because that means it’s in the custody of the prosecution team. But not, you can’t just go, you know, digging about. In fact, the government wouldn’t have, the executive branch wouldn’t have any authority to go digging about within the House Select Committee’s records for things that had not been produced.
Andrew Weissmann: Right.
Mary McCord: So, okay, we have exhausted that issue.
Andrew Weissmann: Okay. So, you know what? I think we’re going to take a break and we’re going to go down to Florida to talk about the recusal motion by Ryan Routh’s litigation team asking Judge Cannon, who was randomly assigned to recuse herself within her discretion to not listen to this case. So let’s take a break and come back and talk about that motion.
Mary McCord: Sounds great.
(BREAK)
Andrew Weissmann: Mary, welcome back. So, Ryan Routh has made a motion for Judge Cannon in Florida to recuse herself. And one thing’s just noted is that Ryan Routh is represented by the Federal Defender’s Office. That is counsel when you can’t afford your own attorneys. That is constitutionally required to be represented by counsel. The Federal Defenders, as you and I know, Mary, from being prosecutors for many, many years, tend to be just excellent. And they’re repeat players. And usually, I had just enormous respect for them. And there was a great working relationship. And you could be tenacious in court, but then collegial outside of it.
Mary McCord: Yes.
Andrew Weissmann: So, anyway, they filed this motion. What’s the gist of it? What’s the argument?
Mary McCord: Right. So, first of all, I will say I do think the Federal Defender just kind of falls all over himself to say, “We’re not saying we think that you’re biased, Judge Cannon. We are making this motion because of the potential appearance that your impartiality might be questioned.” And the statute that governs here, the federal statute, says that any judge of the United States shall disqualify herself in any proceeding in which her impartiality might reasonably be questioned. So, I mean, this is what I would have done, too, if I were them. Because you may end up in front of her, you don’t want to offend her. So they really go to great pains to say, “We’re not saying we think you’re impartial. It’s just that your impartiality could reasonably be questioned.” And they say that based on really three things. One, while in office, it was Trump who nominated Judge Cannon to her current position as a U.S. District Judge. And so, therefore, you, Judge Cannon, owe your lifetime appointment to the victim in this criminal case. So you might be biased, therefore, or appear to be biased against the defendant in this criminal case. Also, Judge Cannon, you had assigned to you the criminal case against the victim here, Donald Trump, and you dismissed that entire case against him, which might, you know, lead one to believe or to question your impartiality. And finally, he talks about in the motion that Trump, as the current Republican candidate for president, has repeatedly praised your honor for your rulings in this case and as an alleged victim here. The victim, Donald Trump, has a significant stake in the outcome of this case, too. And here’s the kicker. Were he to become president in the future, he would have authority to nominate your honor, Judge Cannon, to a federal judgeship on a higher court, including the Supreme Court, should a vacancy arise. So the federal offender is saying, “Taking all of these circumstances together, an appearance of partiality in the mind of the public, requires this court, Judge Cannon, to recuse herself.”
Andrew Weissmann: And I think the key in what you said, Mary, is taking it all together.
Mary McCord: Yes.
Andrew Weissmann: And the fact that they didn’t say the following, they didn’t say, “Because Donald Trump appointed you, you cannot sit on cases that involve him.” That is just not the law.
Mary McCord: That would be ridiculous.
Andrew Weissmann: Exactly. And so it’s a well-done brief in terms of they have only limited facts to support it. And so their key thing is the constellation and the fact that Donald Trump in this indictment is the alleged victim.
Mary McCord: That’s right.
Andrew Weissmann: And that’s, to me, such a critical piece of this to help differentiate it from the legion of cases that make it and should make it very hard to move to recuse a judge. You can’t just get a new judge because you don’t like the person’s rulings. And generally speaking, it has to be something that they’re doing outside of court, generally speaking. Obviously, there’s things that they can do in court that would be so beyond the pale.
Mary McCord: Right.
Andrew Weissmann: I don’t think this is a strong motion, but I do think that they sort of did the best they could. And it also tells you just how, A, it’s a very difficult area of the law to prevail. And B, it puts you as a litigator in a very tough spot because, you know, you’re asking the judge who you might very well be in front of to recuse herself. And that’s why this was done very politely.
So one thing we do have, Mary, is we do have the response from the government.
Mary McCord: We do. But before we get to that, and in fact, the government focuses on just one aspect, but I want to illustrate the point you made. It can’t be the case that just because the president appointed a judge, that judge can’t sit on cases involving that president. Normally, that arises not in like a case involving the president as a victim or the president as a defendant. Normally, we’re talking about challenges to policies --
Andrew Weissmann: Yes.
Mary McCord: -- of the presidential administration, things like that. And it can’t be that, oh, just because this is a judge I appointed or that this is a judge that this president appointed, that that judge can’t sit fairly. Here, we are talking about a very different circumstance. She had both the criminal case against Donald Trump and now the criminal case against the person who is alleged to have attempted to assassinate Donald Trump. But this is also relevant to the government’s response. Two pages filed last night.
Andrew Weissmann: Wait, can we just get back to two pages?
Mary McCord: Yes. Yes. Two pages filed last, and honestly, it’s really one and a half because on the second page is mostly the signature lines.
Andrew Weissmann: It is a short filing.
Mary McCord: It is short. And they ignore everything except that first, that point we were just discussing. They basically say, look, Routh’s motion doesn’t cite any authority mandating recusal in these circumstances and doesn’t present either facts or case law requiring recusal on this record. And then they only cite cases about the point I was just making, which you had also made, which is that there’s no support for requiring a judge to disqualify themselves based simply on the identity of the president who appointed that judge. Okay, fine. But what about the other arguments that Mr. Routh made? The arguments that this judge also was the presiding judge over the criminal case against Donald Trump, which she dismissed in its entirety, and which is currently on appeal. What about also the fact that this is a situation where should Mr. Trump win again, he would be in a position to potentially appoint her to a higher court to include the Supreme Court if a vacancy should arise. Now, that’s extremely speculative and not a super strong legal argument. But I also think that the U.S. attorney’s office should have dealt with those things, should have responded.
Andrew Weissmann: Absolutely.
Mary McCord: And they ignore them completely.
Andrew Weissmann: Yeah, no, this is very much a back of the hand kind of submission, which is a little surprising in a case of this magnitude.
Mary McCord: Agree.
Andrew Weissmann: But, you know, obviously this is a tough motion for the defense to prevail on. But, you know, the defense, whether it was Donald Trump as a defendant or whether it’s Mr. Routh as a defendant, you know, they have an obligation to their client to make good faith arguments. And so this is a good faith argument with respect to the case. And so they’ve made the motion and we’ll see what Judge Cannon does with it. You know, one thing to just note is that she has wide discretion here and that even in the way that the government phrased their brief, they said there’s no case, even though they only deal, as you said, Mary, with a limited range of issues, meaning one.
Mary McCord: One.
Andrew Weissmann: That’s how limited it is that they’re not saying that the judge can’t recuse herself. They’re just saying it’s not required in that situation. So Judge Cannon could do it. And so we’ll see how she rules on this particular case, whether she would recuse herself and it would get spun out in the wheel to one of the other judges sitting on that court.
Mary McCord: That’s right.
Andrew Weissmann: So, Mary, it’s great getting into all these legal things. You know, I know there’s so much else going on in the political world, but this hopefully brought people up to speed on these matters. And we’ll talk next week.
Mary McCord: That we will.
Andrew Weissmann: Thanks for listening. Remember to subscribe to MSNBC Premium on Apple Podcasts if you want to get this show and other MSNBC Originals ad-free. And remember also 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 Engineer is Katie Lau. Our Head of Audio Production is Bryson Barnes. Aisha Turner is the Executive Producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC.
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