With eight days to go until Election Day, veteran prosecutors Mary McCord and Andrew Weissmann tackle several issues related to the vote and its aftermath: if Donald Trump doesn’t win the election, could his DC criminal case be dismissed based on the Appointments Clause? Can a president use the military domestically against “the enemy within” despite the constraints of the Posse Comitatus Act? Will another ‘red mirage’ followed by a ‘blue shift’ cause the former president to cry foul and call for stopping the electoral count? And, will Elon Musk and his America PAC be held liable for paying residents in swing states to register? Andrew and Mary address these questions and remind listeners to vote!
Further Reading: Andrew and Ryan Goodman’s recent piece on Just Security: An Overlooked January 6 Charge: The “Stop the Count” Scheme
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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 Monday morning, October 28. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Yes, good morning.
Andrew Weissmann: So we actually have a bunch of stuff that’s on our dance card, but before we do that, given that we are, what is it, eight days away?
Mary McCord: Eight days.
Andrew Weissmann: Mary, you know, it’s funny, I’m of an age where I always think, well, the Election Day is coming and that’s the day you vote. But of course now, because we’ve joined the modern world, that’s actually kind of the last day you vote. And I’ve voted, have you voted? —
Mary McCord: I’ve voted, yes. I keep wondering though, which day to put my sticker on because it felt really early when I had my sticker. So I just have my sticker saved. Maybe I should just, I should probably start wearing it now.
Andrew Weissmann: So let this be a reminder, the two “Prosecuting Donald Trump” co-hosts have both voted already.
Mary McCord: And all of our listeners who are citizens of the United States, ‘cause we know we have listeners abroad, all of you listeners who are qualified to vote, please vote.
Andrew Weissmann: And even citizens abroad who can vote.
Mary McCord: Yes, oh yes, yes, yes.
Andrew Weissmann: Since those people can vote, military can vote when they’re overseas. So anyway, everyone go out and vote, but we actually have a variety of topics we wanted to discuss. So Mary, what’s on our dance card?
Mary McCord: Sure, so we will start of course with former President Trump’s motion filed last week to dismiss the January 6th case on the grounds of Jack Smith being unlawfully appointed. And I shouldn’t say a motion to dismiss, it’s a motion for leave to file a motion to dismiss.
Andrew Weissmann: I learned that last time ‘cause I made that mistake.
Mary McCord: That’s right.
Andrew Weissmann: And it’s definitely —
Mary McCord: But it does include the motion. It includes the motion to dismiss along with the motion for leave. And Judge Chutkan invited the former president’s attorneys to do that. So, yeah, well, after they asked, she said, “I’ll let you file a motion for leave.” I shouldn’t say she invited, that’s a little bit too strong.
We will then also turn to some other very related things that candidate Trump is talking about. We’ll talk about his threats to use the military and the National Guard against what he calls the enemy within, and talk about the Posse Comitatus Act and the Insurrection Act and the authorities that govern the National Guard. We also want to review the phenomenon of sort of the red mirage followed by the blue shift as Election Day draws near to remind everyone really about how it is going to be several days at least, if not more, before we really do know the results because of all these different forms of voting. And in some states, including Pennsylvania, the law does not even allow election officials to start counting the ballots or canvassing the ballots till Election Day. So that means it’s going to take a while to get through all of that.
We’ll talk about the tools DOJ has in its toolbox for addressing election interference, including conspiracies maybe to not count all those votes.
Andrew Weissmann: Right.
Mary McCord: And then we will also look at, because this has made a ton of news lately, and again, as former prosecutors who are constantly thinking about the legality of things, we will look at the payments that Elon Musk’s PAC has offered. That’s hard to say.
Andrew Weissmann: Say that three times fast.
Mary McCord: I’m not going to say it again. The payments he has offered to residents of the swing states to sign it, ostensibly to sign a petition, but you can only sign that petition and be eligible for the payments, including a million dollar lottery if you are registered to vote in those swing states. And is that legal or is that not? So we will cover a lot of ground today. I think it’s all super important. It all, from a legal perspective, I think is really interesting and never really thought we’d have to talk about all of these things a week before the election, but we do.
Andrew Weissmann: Absolutely. So one thing our listeners should note is just after we recorded, there is news as we were sort of somewhat predicting that is a civil case in Pennsylvania brought by the Philadelphia district attorney on behalf of the Commonwealth of Pennsylvania against Elon Musk. So we’ll also talk about that in our third segment. So let’s get started.
I just want to make sure everyone understands there’s a new motion in DC that you referenced, and it’s a motion for leave to file the motion, which means it’s because basically all the time periods it’s sort of ostensibly run out. And so Judge Chutkan said, you know what, go ahead and file your motion, which is really asking for leave to file the motion that is very, very similar, if not almost identical. On substance, it is identical to the motion that was made in Florida before Judge Cannon saying that Jack Smith was not statutorily correctly appointed because he first came from outside the government and then was brought in, which is very, very standard. And in fact, it’s contemplated under the special counsel rules.
Mary McCord: By the regulations, right.
Andrew Weissmann: But the issue is whether it was maybe contemplated by the regulations, but is it contemplated by the statutes in terms of what the authority is for the attorney general? This is something that Judge Cannon granted, and that is now on appeal in the 11th Circuit with briefing going on that won’t be heard until after the election.
Of course, if Donald Trump wins the election, he will have the ability to just get rid of that case so that the issue will be largely moot if he does that because there won’t be a criminal case. The same thing could happen in DC. But assuming that Donald Trump does not win, Judge Chutkan now has this motion for leave to file. So that’s sort of where we are.
The one other thing I’ll say is that in DC, as unlike in Florida, there are not one, but two Court of Appeals decisions on this issue. The reason I raise that is Judge Chutkan is bound to follow the Court of Appeals decisions in her circuit. She can’t just say, I just disagree with them. She might disagree with them, but she has to follow them unless she can come up with a reason that is legally valid as to why they’re somehow not dispositive. And she actually asked Donald Trump’s counsel to address that in the papers, to say, why is it that I am not bound by two separate decisions? The most recent being regarding special counsel Mueller, who I worked for, saying that he was properly appointed.
And if you remember, Robert Mueller came from outside the department also at the time that he was appointed, even though he had been a very long-time Department of Justice, FBI official. At the time he was appointed special counsel, he was actually doing a stint, a rare stint outside of government.
Mary McCord: Yes, that’s right. And so just to kind of foot stump what you’ve just said.
Andrew Weissmann: I love that expression.
Mary McCord: Yeah, well, that’s actually, you know, it comes from my government days. And I thought I tried to jettison some of these, but I don’t know, sometimes it just applies, right? It just applies.
Andrew Weissmann: Mary, should we do a level set?
Mary McCord: Do a level set. Let’s just, you know, let’s set the table here. Let’s level set, yeah. And we’re going to do more than the wave tops. Should we just hit the wave tops or should we go all the way into the water?
Andrew Weissmann: When I worked for Director Mueller, when he was at the FBI, the word you could not use, I was going to say we should do something not at the wave tops, we should do a robust. And he was like, that was a word you could never use. There was this jargon that he just hated. He was a very substance guy and he just hated this kind of jargon. But anyway, whether we call it wave tops or just between you and me, robust.
Mary McCord: Robust, yes. Let’s dive in.
So first as to the motion for leave, right, their rationale for why they should be able to bring this motion to dismiss based on the appointments clause. Now, remember this case has been pending for more than a year. And originally after the first indictment was filed, there were deadlines for motions to dismiss. And there was no motion to dismiss based on an appointments clause violation. And that’s because I think Mr. Trump’s attorneys realized that in DC, Judge Chutkan was bound by the DC circuit opinions you just referenced, Andrew.
But now what they say is now you should let us file it late because we now have the Trump v. United States concurring opinion by Justice Thomas. And we have a district court, not in this jurisdiction, but a district court in their view, which wrote a very persuasive opinion. This is Judge Cannon they’re referring to, of course, who has in fact dismissed an indictment against Donald Trump on the grounds of the unlawful appointment of Jack Smith.
And so this is the rationale for them saying, you should be able to hear this motion now, even though we’ve missed our deadline because we have these intervening decisions. Now, before we move on to the other pieces, substantively why they think that they have something new to rely on, let’s just be clear. Justice Thomas’s opinion in Trump v. United States was a concurring opinion that talked about this appointments issue, which was not briefed, it was not argued, it was not even part of the Trump v. United States.
Andrew Weissmann: Mary, what are you suggesting?
Mary McCord: Yes, so that Trump v. United States, you know, there’s so many cases with the word Trump in them that we need to be clear. I’m talking about the immunity decision, right? The immunity decision that we’ve spent many, many episodes talking about where we had a, a majority ruling, we had Justice Amy Coney Barrett disagreeing with some of those things, we had the three dissenters. but Justice Thomas, completely on his own, wrote a concurrent saying, I really think that, you know, another thing that needs to be considered is whether the appointment of Jack Smith was lawful, and this is something that’s important to decide at the outset. That is not a binding opinion. That is one justice out of nine musing about his views of the appointments clause.
And then secondly, Judge Cannon, a district court judge to the same level as Judge Chutkan in a different jurisdiction, even if it was a judge in D.C., a district court judge, that still would not be binding on Judge Chutkan. They are the same level judge. Only a circuit or a higher court is binding on Judge Chutkan. That said, sometimes judges who have respect for other judges within their district will find the rationale persuasive. And similarly, a judge could find a district judge’s opinion in another jurisdiction persuasive. It’s certainly not binding, and it certainly doesn’t overrule D.C. Circuit precedent.
So neither thing that Donald Trump’s attorneys are kind of hanging their hat on here actually changes the fact that the D.C. Circuit has spoken.
Andrew Weissmann: Yeah, I think the other thing they throw in the kitchen sink is that there’s a superseding indictment. In other words, there’s now a new indictment. So they say that sort of refreshes the timeline, so you should hear us. They threw in that the Supreme Court decided the case that is the so-called Chevron case about the deference or lack thereof that the court should give to agencies saying that the statutory basis is not clear enough and that Supreme Court decision sort of should have it changed the way the court is looking at this, and thus the D.C. decisions hadn’t had the benefit of that.
Mary McCord: And the major questions doctrine, you know, that’s the West Virginia versus EPA saying that when Congress wants a statute applied, they need to be very clear in saying so.
Andrew Weissmann: So they threw in the kitchen sink, and frankly, I have to say I don’t think the substance of the argument is very strong for the same reasons we talked about with respect to the Judge Chutkan decision, but I thought they did the best they could on the issue of why it should be heard. And I would expect that Judge Chutkan will, in some fashion, reach the merits on this. And, I mean, she may say that I wouldn’t normally grant leave, but I think she’s going to reach the merits to say why she agrees with, but in any event feels bound by the D.C. Circuit decisions.
But ultimately what this means, just so people understand, the big picture is if Kamala Harris were to win, then this issue will in some form be live before and could potentially go to the Supreme Court on the question of whether the special counsel is appropriately appointed in this circumstance, the same issue before the 11th Circuit. Just so everyone understands, it’s a procedural motion, and others, what we talked about this is that even if the government were to lose on this, it’s not saying that there can’t be a prosecution, it’s just saying that Jack Smith in his current incarnation is not the appropriate person to bring it, but you could still bring it. It just, you would just have to bring it from somebody who spent one second in the Department of Justice before they were appointed special counsel.
So it’s quite the technical issue as Jack Smith’s papers in the 11th Circuit have pointed out.
Mary McCord: And that’s so interesting that you raise that because I think one of the things that Trump’s attorneys were trying to do in this motion is address some of the things that have come up in the briefing in Florida. And so we’ve been talking about the Appointments Clause issue, but listeners may recall there was another basis for Judge Cannon to rule. Now she didn’t hang her hat on that because she was dismissing based on Appointments Clause, but Mr. Trump’s attorneys also argued that under the Appropriations Clause, the bucket of money that Jack Smith has been using, they are claiming he’s not eligible to use that money.
This dates back to a time when a fund was created for the Independent Counsel, and that has been the same funding stream that has been used by every special counsel, special counsels who have been appointed by Republicans as well as special counsels who’ve been appointed by Democrats. Congress has never batted an eye or said you shouldn’t be using that fund. Nevertheless, that’s a separate basis for Mr. Trump saying that this case should be dismissed. And of course, Jack Smith in Florida said, that’s not a dismissal basis. Even if for some reason this court were to determine that’s the wrong appropriation, we can just use a different bucket of money going forward. But here, of course, in this new motion, they say Jack Smith should be basically enjoined, prohibited from using any monies because —
Andrew Weissmann: Of course they do.
Mary McCord: That’s right, because he’s just acting as a private citizen, ultra vires, outside any authority. And so, no, you can’t just switch to some other bucket of money. He’s got to be enjoined from any kind of appropriation. So anyway, they’re going full bore here.
Andrew Weissmann: Mary, should we take a break and then turn to something, which I know I am looking forward to hearing your thoughts on this. And it’s actually quite serious. And talk about some of the language, threatening language that’s been heard and what it means in terms of what the authorities are for the use of the military domestically.
And just to frame it before we take a break, people will remember during the Trump administration towards the end, there was a protest in Lafayette Square, just outside of the White House, where there was various forms of National Guard, military showing up. I think the Secretary of Defense showed up and then shortly thereafter, basically said that was a mistake.
Mary McCord: Yes.
Andrew Weissmann: And this issue of the use of the military domestically and what are the legal authorities, because that language is something that for people like us, who used to be in the Department of Justice, raises, like our antennae are up.
Mary McCord: Yes, and that was of course during the protests after George Floyd was murdered. These were the Black Lives Matter and other similar racial justice protests that were really going on around the country and even around the world.
Andrew Weissmann: Yes.
Mary McCord: And that use of the National Guard from other states as well as D.C. and other federal law enforcement has been soundly, soundly criticized. And we’ll talk about that in conjunction with the more recent statements of the candidate Trump after the break.
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Andrew Weissmann: So welcome back. Mary, we were just talking about the use of the military. I was actually thinking when you were describing the protests of which the one that I was referencing was at Lafayette Square, but you correctly noted it was happening around the country and even the world. You know, it was so interesting. That was a time, I’m not trying to be nostalgic or look through rose-colored glasses, but you know, if anything good had come out of the horrendous George Floyd murder, it was this outpouring of what seemed like unity amongst a diverse coalition of people protesting what was going on and understanding that there really needed to be change. And it was just, it does feel like a million years ago, but moving with that as a backdrop, why don’t we turn to a phrase that you use, which was posse comitatus and what that means and what’s the legal framework that in terms of our thinking about the military being used domestically?
Mary McCord: Sure, yes. So this phrase is probably not familiar to that many people. The Posse Comitatus Act dates back to 1878, right? It was enacted following reconstruction and it was an effort to stop the use of the military in aiding civil law enforcement at the time. That’s something that I think certainly by today and even then, military officials, military officers have always found very problematic because we’re talking about using their forces domestically here in the United States. And so what the Posse Comitatus Act is, and it’s a criminal statute, it prohibits the federal military or National Guard units when they’ve been federalized, and I’ll talk about what that means in a second, it prohibits them from engaging in domestic law enforcement.
And so you may be saying, what is domestic law enforcement? We’re talking about things like search, seizure, arrest, detention, right? The things that normally your local police or your sheriff would engage in, or maybe the FBI, right? But not things that the military engages in.
And so what this means is that just generally speaking, it is a violation of law, of criminal law, for like when Donald Trump says, I’m going to use our military and our National Guard against the enemy within, and he’s talking about American people, protesters, he’s got some choice language, radical left lunatics or something like that, I believe he said, choice language.
Andrew Weissmann: Really adult language that you would expect from the former leader of the free world.
Mary McCord: Very adult language. Yeah, and I mean, broadly speaking, he’s referring to immigrants who he wrongfully accuses of committing all kinds of criminal violations and others who frankly are just opponents to him, he is referring to as the enemy within.
So when he says, I’m going to use our military, that is unlawful under the Posse Comitatus Act. However, the Posse Comitatus Act does have exceptions, and that act itself says that it allows for exceptions where expressly authorized by the Constitution or by a congressionally-enacted statute. So the statute that provides the primary exceptions, the ones that we think of when we think about exceptions to Posse Comitatus is the Insurrection Act.
Now, Donald Trump has said on more than one occasion, he would invoke the Insurrection Act on day one, and he would use that to enforce the law in cities where he claims crime is rampant. Now, never mind that he’s seriously overblowing criminal statistics, which I think cities large and small across the country, there has been a reduction in violent crime.
Andrew Weissmann: I’m sitting here in New York City, which is a prime example of that. And this is where facts don’t seem to matter. But it’s like, that’s just not true with respect to, the crime has largely been going down, not a uniformly, but largely.
Mary McCord: Yes, that’s right. And there are exceptions for certain things, right? So he’s talked about invoking that on day one, with respect to crime in major cities, and the cities that he always points out are cities that are governed by Democrats.
Andrew Weissmann: I’m shocked by that, Mary.
Mary McCord: Democratic mayors, yes, shocking.
And he’s also talked about using it at the border as well. So let’s talk about what the Insurrection Act really does. Do you want to jump in?
Andrew Weissmann: Yes, I was going to say, didn’t Jeffrey Clark make reference to the Insurrection Act when there was a discussion in the White House? This is information that came out during the January 6th committee hearings, where basically Jeffrey Clark said, well, if there’d be protests, if you had Donald Trump sort of overthrowing the will of the people, Jeffrey Clark purportedly said, well, that’s why we have the Insurrection Act.
Mary McCord: That’s right.
Andrew Weissmann: Which was just to make sure everyone understands the implications of that, as well as the implications of Donald Trump and people like Jeffrey Clark, if not Jeffrey Clark himself, coming back into a position to have this view of the Insurrection Act, which is that this would be an appropriate time to have not just law enforcement, but the military take action with respect to people who would be protesting the overthrow of the will of the people.
Mary McCord: Yeah, that’s right. I mean, you put it so starkly there. And remember, this would have been —
Andrew Weissmann: This is the time, Mary.
Mary McCord: That’s right, this is a time, if ever, to be thinking about this, it was raised in 2020, and it’s been raised on the campaign trail by Donald Trump now for weeks, if not months, actually months since he started saying Insurrection Act.
Andrew Weissmann: Absolutely.
Mary McCord: “Enemy within” is a newer phrase.
Andrew Weissmann: With a horrendous history that I’m, unfortunately, from my family’s perspective, is, we’re very, very aware of.
Mary McCord: Yeah, absolutely. So what is the Insurrection really for? So this is another very old law, which dates back really all the way to late 1700s, but has been recodified at various points throughout history, including most recently in 1874, again, in that Reconstruction post-Civil War period as part, frankly, of at the time when the Ku Klux Klan Act was also enacted. And it has multiple components, but basically, the first one, Section 251, is about authorizing the president to call forth the militia and the armed forces.
When I say militia and armed forces, armed forces means our regular US military. Militia refers to lawful militias, militias authorized by the Constitution and by statutes, the Militia Acts passed by Congress, dating back again to the late 1700s, which were the modern precursors to and still incorporate our National Guard. So the only lawful militia is a militia that is authorized by law, that’s our National Guard, and other state-authorized militias that the Constitution and Acts of Congress have authorized. I am not talking about private groups.
Andrew Weissmann: Private militias, yes.
Mary McCord: Exactly, like Oath Keepers, et cetera, et cetera. No authority for them. We’ve talked about that on a past episode, and I’m happy to talk to anyone who wants to talk to me about that again. But the official phrase militia means, let’s just say National Guard.
So that first provision allows, and this is where we usually see Insurrection Act, it allows for the president to call forth the militia and armed forces to suppress an insurrection in a state when the legislature or the governor asks for help, right? So the last time that the Insurrection Act has been used was 1992 in response to the police beating of Rodney King in Los Angeles that kicked off civil disturbances, riots there, and the governor sought the help of the US military under the Insurrection Act, and that was provided. It has not been used since then, not that provision or any other provision.
Andrew Weissmann: And Donald Trump has said that he is going to use it even if he’s not requested.
Mary McCord: That’s right. Well, those are the next couple of provisions.
Andrew Weissmann: Exactly.
Mary McCord: Exactly.
Andrew Weissmann: I’m anticipating.
Mary McCord: There are two additional provisions. One allows the president to, again, call forth the militia and the armed forces when rebellion makes it impracticable to enforce US law in any state through the ordinary course of judicial proceedings. And essentially that means there’s a rebellion, there’s a riot, there’s an insurrection. That means normal sort of law enforcement activity, arrest, detentions, bring a case, a prosecution in court. That’s not sufficient to allow for US law to be enforced, and that can be over the objection of a governor.
What’s important there is we’re talking about the possibility of actually federalizing the National Guard, even potentially from that state, over an objection of the governor. So that’s an incredible authority for the president. And the third provision is the one that was used during desegregation when we had some Southern states that were refusing to desegregate, and that is the section that allows for the president to, again, call forth the armed forces or the militia, meaning the National Guard, when there is an insurrection or domestic violence that hinders the execution of laws in a state so that a class of people is deprived of constitutional rights and the state authorities are failing to protect them, right?
So that’s where we’re talking about, as you recall, there were states where, in fact, in Arkansas, the governor called out the National Guard to prevent the desegregation in Little Rock, and actually Insurrection Act was invoked to have those National Guards stand down so that our military could actually ensure that the laws, that is the law after Brown v. Board of Education, which said separate but equal is not okay in our public schools, to ensure that that would be enforced and so that Black students could, in fact, attend public school in Little Rock, Arkansas.
So that’s the application of that particular provision of the Insurrection Act.
Andrew Weissmann: This is an area, Mary, where something you and I talked about and thought about, where lawyers can be incredibly helpful and can further the law, but they also can be terribly pernicious by giving cover to people who are really abusing the law to say, well, here’s a legitimate argument, even though you and I would look at this and go, either that’s bad faith or it’s pretty darn close to bad faith.
And that’s the kind of thing that received a fair amount of attention in the January 6th Committee when we were talking about various lawyers and different views where, for instance, the vice president’s counsel was saying, But come on, you have to agree that this would lose basically nine-zero in the Supreme Court.
Mary McCord: The challenges that were being made to the election results at the time, right? The legal challenges, yeah.
Andrew Weissmann: So, Mary, does this relate to, I’d been talking about the Lafayette Square. How did that happen? Was that an instance of an invocation of the Insurrection Act, or was there some other purported legal authority for what was going on there?
Mary McCord: That was not. That was, in fact, it was a little bit unclear at the time what authority was being used, not only to use the D.C. National Guard, but also National Guards from several other states who were friendly to the president, who responded by sending their National Guard when the president requested it. That was under Title 32 of the US Code, a section called Section 502(f), and that is a section that allows for National Guards to perform other duty beyond their sort of normal training and things that they do when they go off overseas and things like this, and that other duty has been interpreted broadly to include support of operations or missions that are undertaken by the president or the secretary of defense.
Now, traditionally, that’s been used by presidents of both Republican and Democratic administrations for things like airport security after 9/11, disaster relief after hurricanes, and even support of Border Patrol operations, but not actual law enforcement activity. It was controversially relied on the summer of 2020, as we’ve been talking about, and this is where D.C. is different, right? Because in every other state, the National Guard reports up to the governor unless the National Guard is federalized, and then basically absorbed into it for reporting purposes to the regular military. But if they are not federalized, and under Title 32, they are not federalized, so under 502(f), provision I’m talking about, they’re not federalized, which means they still report to their own governors. But the president can say, hey, would you send your National Guard to help with this thing? In D.C., because there’s no governor, it’s actually the D.C. National Guard reports up through the Secretary of the Army to the president as the Commander-in-Chief.
So he’s able to just call up the D.C. National Guard to use for things under 502(f) that he would not be able to do on his own elsewhere. So that’s why you saw friendly state governors send their National Guards to D.C., but there were other governors, frankly, from Democratic governors, who refused in the summer of 2020.
And so some of the questions here, if we take ourselves out of D.C., I think what’s important for listeners to know is that when the National Guard is under Section 502(f), again, they report to the governor, which means it’s hard to imagine that the president could force an unwilling governor to deploy his own or her own National Guard under Section 502(f) at the request of a president if they did not want to do so, because they remain in control, right? The governor remains in control when the National Guard has not been federalized.
Similarly, it’s hard to imagine that the law would allow, and this has never been tried at any other place than D.C., the president to ask friendly governors to send their National Guard into a state where that state governor is objecting. Because remember, again, they’re still under control of the governor. That would be saying one state could invade another state, another sovereign, and without federalization of the National Guard.
So I know this is kind of complicated, but the point is there are limits on the authority of any president to use the National Guard, and some of those limits are things that would frankly mean that if Trump were to win again and want to use the National Guard in ways that he has talked about, he really would have to invoke the Insurrection Act, and that brings a lot of its own issues, including whether that can be challenged on grounds of bad faith.
Andrew Weissmann: So speaking of things that Donald Trump could invoke, I think there’s something I wanted to flag the same way that we’ve been talking about the Insurrection Act and Posse Comitatus Act, something that happened the last time around, four years ago, where there was this idea of the red mirage, and that was that at the time, it was thought that on the day of the election and shortly thereafter, that there would be a large, what’s seeming red vote because of in-person voting that would be more heavily weighted towards Donald Trump, but that the people who were voting absentee or by mail where the count took longer, as you noted, Mary, for instance, in Pennsylvania, the people who count the vote aren’t even allowed to open stuff and start counting until the end of the Election Day, so they can’t do any sort of pre-work to get going.
So there was this thing of the red mirage, and that is that it would look like there was a heavily favored Republican vote, but as you counted the mail-in and absentee votes, which were largely more Democratic, it would catch up. So one of the things that Donald Trump did is he said, no, no, no, it’s not a red mirage, it’s red truth, and everything else is just fraud. And so that was sort of the construct. And so one of the things that he, it’s documented, and actually I’ve written about this with Ryan Goodman for Justice Security, and looking back at what happened four years ago, was that Donald Trump and his allies said, “Stop the count.” That was the phrase, “Stop the count,” over and over again and in various ways. The idea is freeze the count so you’re not counting any of these blue votes so that the red mirage will actually be set in stone.
And that’s the kind of thing that we could easily see. Again, now I think that the Republicans have gotten better at sort of understanding that early voting and mail-in voting and absentee voting is a good thing so that it may not be as big a red mirage, but I wouldn’t be surprised to see that same stop the count mantra if at the end of Election Day, there is a seeming vote in favor of the Republicans.
And just to be clear, what we wrote about is that idea of stopping the count is a violation, in our view, of not just the obstruction statute, which we’ve talked about in the past, but also a charge that Jack Smith has actually brought, which is a civil rights charge. It’s 18 USC 241. And that statute, that actually makes it a crime for two or more persons to conspire to injure any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.
That sounds like a lot of gobbledygook to our listeners, but that has been applied consistently and over and over again by the Department of Justice with respect to voting.
Mary McCord: Yep.
Andrew Weissmann: To when you’re denied the ability to vote.
Mary McCord: And we’re talking about cases, for example, where maybe county officials or local officials conspired to not count certain people’s votes, right?
Andrew Weissmann: Exactly. And typically that has happened with Black and Brown communities in the history of this country. And so the Department of Justice has stepped in in those circumstances, maybe not as much as they should have, but they certainly have done that. And so this idea of stopping the count, I just want to make sure people understand, that is, it’s not just improper, that is —
Mary McCord: Unlawful.
Andrew Weissmann: Exactly. This is like we’re calling —
Mary McCord: Criminal, it’s criminal.
Andrew Weissmann: We’re just calling it out, exactly, exactly. So, and that is something that would not be an application of the law that is unique. It would be something that the Department of Justice has done in its history.
Mary McCord: There’s lots of cases, right?
Andrew Weissmann: Exactly.
Mary McCord: There is. And it will be really interesting this time around though, because the GOP generally is advocating for early voting, mail-in voting, absentee voting. And it seems like Trump has been a little bit on both sides of the fence on that. He said both, if you haven’t voted, vote right away. And then I’ve also heard him say like, almost in the same breath, oh, it’s all fraud. The mail-in ballots and absentee ballots are all fraud. So I don’t really know where he’s going, but I do think there are a lot more people of both parties voting early. So that red mirage might be more of a just a little bit of a —
Andrew Weissmann: Haze.
Mary McCord: Haze, yeah. Yeah, I was looking for the right word, yes.
Andrew Weissmann: One thing I will say is, I think it’d be so great if our country had the same kind of numbers that you see in other democracies, because we have such a low voter turnout. And I think whether you’re Republican or Democrat or independent, the idea of early voting, absentee voting, mail-in voting is just a good thing. And it’s great that people are taking advantage of it, regardless of what party, because people should be engaged.
Mary McCord: Yeah, 100%.
Andrew Weissmann: Speaking of which, this is like a perfect segue —
Mary McCord: It is.
Andrew Weissmann: Let’s take a quick break and we’ll come back and speaking about getting people engaged.
Mary McCord: Yes, boy, oh boy.
Andrew Weissmann: We’ll talk about whether you can have a lottery of a million dollars to get people engaged. And we’ll talk about Elon Musk.
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Andrew Weissmann: Welcome back. So Mary, let’s talk Elon Musk, if we must.
Mary McCord: Yes, if we must.
So I think maybe a good place to start is, what exactly is he doing? In other words, what exactly are the terms? Because in reading up on this, I thought that was sort of critical to understand what the potential legal issues are and what the best avenue could be to challenge this and whether they’ve managed to thread a needle in terms of legality.
Mary McCord: I think there’s no question he probably had some legal advice here and is trying to thread that needle. And I think the question really is, did he do so successfully?
So what Elon Musk has done is he has offered to the voters in seven swing states, when I say the voters, only registered voters in seven swing states, not only payment for signing a petition, but also payment for getting other registered voters to sign a petition. And he has also said that those who sign the petition will be eligible for a lottery to be awarded a million dollars and they’re going to draw names every single day between when he first announced this and the date of the election.
Again, the names would be drawn from those who signed the petition. You can only sign the petition if you’re a registered voter in one of the seven swing states.
Andrew Weissmann: And what is the petition for? What does it say?
Mary McCord: Well, it is not for anything. Because you know, normally a petition is to try to actually get a government or somebody else to do something, right? Like we all signed this because we want you to do X. This is just a statement. It is a petition in favor of free speech and the right to bear arms. And this is what it says. The First and Second Amendments guarantee freedom of speech and the right to bear arms. By signing below, I am pledging my support for the First and Second Amendments.
So it’s not asking anybody to do anything.
Andrew Weissmann: By the way, Mary, and you know what? Let’s throw in the rest of the Bill of Rights.
Mary McCord: That’s right, yes.
Andrew Weissmann: I mean, it’s just such a funny thing. It’s like, you know what? I’d like to sign a petition for all of the Bill of Rights. And you know what? While we’re at it, maybe the rest of the Constitution.
Mary McCord: That’s right. Which happens to be already enacted and in effect in our country. And so the flyer or whatever, the online flyer from the America PAC, that is Elon Musk’s PAC, says in appreciation for your support for signing this petition, you will receive $47 for each registered voter you refer that signs the petition. And that is only for the seven states, Pennsylvania, Georgia, Nevada, Arizona, Michigan, Wisconsin, and North Carolina.
There’s a special offer though for Pennsylvania registered voters. Sign the petition and get $100. Refer a petition signer and get $100. And then of course, you’re also in the lottery for a million dollars to be drawn every day. And the last kicker here, expires October 21. Guess what October 21 is? The last day to register to vote in Pennsylvania.
Andrew Weissmann: That is really interesting because the petition is sort of meaningless. That’s sort of like step one.
Mary McCord: Utterly meaningless.
Andrew Weissmann: Two, it’s only in certain states that are key battleground states. And three, that deadline is such a, I mean, talk about a tell as to what’s going on because it’s not just like, I want to show people really care about First Amendment rights or even Second Amendment rights. It’s so geared.
So anyway, there’s been a lot of talk that the Department of Justice has issued some sort of letter that is not public to Elon Musk and the reporting is asking questions. There also is a letter that you and I have read that was submitted by private parties to the Department of Justice saying that they’re asking the Department of Justice to look into what Elon Musk is doing.
What’s the argument? What’s the gist? Why is this something that is potentially problematic?
Mary McCord: Sure, and that letter you were just referring to, you did say private individuals, but they are all attorneys and former public officials who have served in senior legal and law enforcement roles under every Republican president from Richard Nixon to Donald Trump. That’s who signed this letter asking the Department of Justice and other state attorneys general to investigate.
So under federal law, and I can’t speak to all of the state laws that might exist.
Andrew Weissmann: Really? What?
Mary McCord: Yes, not even in just those seven states, but under federal law, there is a statute that is a criminal statute with a five-year penalty, five-year maximum imprisonment penalty that makes it illegal for any person to pay or offer to pay, or also to accept payment either for registering to vote or for voting, right?
So the question here is, is what this PAC doing offering to pay someone to register to vote? Now, Elon Musk would say, presumably, no, we are paying people to sign a petition. But again, the petition doesn’t even ask for anything. It is just a statement of basically fact about the first and second amendment. It is only, this payment is only available to those who register to vote only in the swing states. You can only sign the petition up to the last day for registering to vote in Pennsylvania. So if you’re not a registered voter, you can’t participate.
So this, to me, is just the thinnest of veils in front of to try to separate what the PAC is doing from actual just directly paying somebody to register to vote. And I think these are the kind of things, again, the statute, like almost all criminal statutes, says it’s whoever does this knowingly or willingly. And given all of those criteria, and I was reading earlier straight from the PAC’s own webpage where this offer is made, all of those details pretty much show that it is knowing that the PAC is offering money, to my mind, for people to register to vote.
And I will say, this is not my area of expertise, but there are lawyers, including Rick Hasen, who is a professor, but has written extensively about election law. He’s one of the foremost experts in the country. He has on his own blog, in addition, of course, to all those former public officials who wrote about this in the letter to DOJ, on his own blog, he has said that this looks to be pretty clearly unlawful, not just the lottery payments, but also the payments, because the only one who can get the payment is a petition signer who is a registered voter in the swing states.
Andrew Weissmann: So that’ll be really interesting to see whether we see activity at the federal, or as we noted, at the state level, because this is something going on in the various so-called battleground states.
Mary McCord: Can I just say one more thing before we move on? Because some people might be thinking, well, what about other things like driving people to the polls and things like that, offering free rides? Are those things like paying people to vote? No, under the Department of Justice Election Crimes Manual, offering free rides to the polls, providing employees paid leave while they vote, these are not prohibited, and there are cases that say that those are things that make it easier for people to vote. They aren’t things that are trying to induce them to vote. So the criminal statute is about, and in fact, case law about that criminal statute says it has to be intended to induce or reward the voter for engaging in either the registering to vote or the voting.
So those kind of things are okay, but it’s hard to look at this $47 payment in every state other than Pennsylvania, 100 in Pennsylvania, and a million dollars a day lottery. It’s hard to see that as anything other than intended to induce or reward a person for registering to vote.
Andrew Weissmann: So in addition to keeping our eye out for potential federal action and state action on this score, it’s really worth noting that our old office within the Department of Justice, that the National Security Division, there’s an election task force, are really being quite vigilant, and they’re bringing cases where there are people who are criminally seeking to disrupt the election.
Mary McCord: That’s right.
Andrew Weissmann: And that’s one where, by the way, listeners should know that Department of Justice has a really active website, and you can go to the Department of Justice and click on the news link, and you can see that the Department of Justice is really making sure that the election is safe, it is secure, and you and I both know that there are also many, many steps at the local, state, federal level to make sure that everybody who is listening and the few people who are not listening to our podcast can all vote safely and securely and should do so, whoever you’re voting for.
Mary McCord: Yes, many, many people involved in that effort, and I feel very confident that that will happen. The challenges, that’s a whole another thing, and we’ll be talking about that in due course, but I know our election officials, the vast majority, are just out there working day in and day out to make sure that this is a safe and secure election for everyone, and that includes people in the hurricane-ravaged areas of Western North Carolina. The provisions have been made there to make sure that people can vote so that these people will not be disenfranchised.
Andrew Weissmann: So since we recorded, there has now been a new case, and that is a civil case, as I mentioned at the top of the show. It’s a civil action brought on behalf of the Commonwealth of Pennsylvania, against Elon Musk and America PAC.
As I said, it’s a civil case, and they are seeking an injunction, presumably that is to stop what the America PAC and Elon Musk are doing in Pennsylvania, and the grounds for that is state law, not federal law. We still have not seen any action on behalf of the Department of Justice, but on behalf of the Philadelphia District Attorney’s Office, they’re bringing this on two theories. One is under Pennsylvania nuisance law, and the other is under Pennsylvania unfair trade practices and consumer protection law, with a particular site to that, and there is a verified complaint that has now been filed, and presumably America PAC and Elon Musk will respond to it, but because an injunction is being sought, this is something that will be heard quickly, presumably by a court to decide one way or the other, whether this practice can proceed.
So stay tuned, because there will be a lot of litigation over this in the next days, if not hours, to see what happens with whether the Philadelphia District Attorney can obtain an injunction to stop what is happening in Pennsylvania.
Okay, to be continued, because there’s a lot that’s going to be happening.
Mary McCord: Yes. What a meaty episode. This has been so meaty.
Andrew Weissmann: Totally, I know, and I feel like I —
Mary McCord: Robust, it’s been so robust.
Andrew Weissmann: Just don’t tell Robert Mueller that.
Mary McCord: Love it.
Andrew Weissmann: Well, thank you for listening. We’ll be taping again on Monday next week. Seems to be a routine, and everyone make sure you go out and vote, Election Day, the final day for voting, not the first day, this next Tuesday.
So next week, we’ll have another fresh episode of “Prosecuting Donald Trump.” Remember that you can subscribe to MSNBC Premium on Apple Podcasts to get this 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 with production support from Max Jacobs. 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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