Even after the New York DA’s position with respect to a dismissal of Donald Trump’s New York case was filed, there are lingering questions about what happens next with his other criminal cases as he begins his transition back to power and unveils his cabinet nominees. MSNBC legal analysts Mary McCord and Andrew Weissmann give an insider’s perspective on what a final report in the DC case might look like from Special Counsel Jack Smith, as is a requirement within the special counsel rules. What will it encapsulate? And will it be made public? Next up: a few cases involving J6 rioters have been denied a stay, while others have had their trials postponed, but an overarching theme is that Trump’s immunity should not extend to these defendants. And finally, Mary and Andrew ‘nerd out’ on the Constitutional process of how a recess appointment works, why the early framers thought it necessary, and how the president-elect is angling to use it to avoid the Senate’s long held role of advice and consent when it comes to political appointees.
Want to listen to this show without ads? Sign up for MSNBC Premium on Apple Podcasts. As a subscriber you’ll also be able to get occasional bonus content from this and other shows. This week, you can get a premium-only bonus episode of Chris Hayes’ podcast “Why Is This Happening?”. In it, Chris sits down with Rachel Maddow to reflect on lessons learned from this election cycle and what to expect in the new administration, including the recess appointments Andrew and Mary spoke about in this episode.
Andrew Weissmann: Hello and welcome back to “Prosecuting Donald Trump”. It is Tuesday morning, November 19th. Oh, my God, it’s already November 19th, like, anyway, guess who I am? I’m Andrew Weissmann. I’m here with?
Mary McCord: Guess who?
Andrew Weissmann: Right. Mary McCord. Hi, Mary. How are you?
Mary McCord: Surprise. Good morning.
Andrew Weissmann: So, Mary, before we get to today’s show, I thought it might be worth letting people know, since the title of our podcast, which we’ve been doing for over a hundred episodes to our incredibly loyal listeners and our wonderful team at MSNBC is “Prosecuting Donald Trump” and we’ve been focusing almost exclusively on the four criminal cases, but if you’re a listener to this podcast, you know that those are going to go away.
Mary McCord: They are going away.
Andrew Weissmann: Yeah, in various ways. And the New York cases, we’ve talked about, is more complicated, but, obviously, that is not going to be something that is going to be a long-term project but --
Mary McCord: But we are not going away. I’m going to jump to the bottom-line upfront.
Andrew Weissmann: Right, exactly. So, we will talk to you more as we go forward about what our plans are, but the podcast is going to be continuing with the same wonderful team at MSNBC. Mary’s not going anywhere.
And I’m like a dog with a bone, so, I’m not going anywhere, and stay tuned and we’ll give you more information about it, exactly what the reconfiguration will be. But it’s still going to be Mary and me talking with you every week.
Mary McCord: Yeah, chapter two.
Andrew Weissmann: I love it.
Mary McCord: Yeah.
Andrew Weissmann: I love it.
Mary McCord: Chapter two.
Andrew Weissmann: That’s true.
Mary McCord: But we’re still the end of chapter one.
Andrew Weissmann: Exactly.
Mary McCord: We have lots to talk about today.
Andrew Weissmann: Mary, before we get started with the show, there actually is some breaking news. People may recall in the New York criminal case, Judge Merchan had put off the sentencing and stayed everything and asked the D.A. to set forth its position by today of what is positions with respect to Donald Trump’s request to totally dismiss with prejudice the criminal prosecution. And that filing has now been made.
And I have to say, it’s sort of a model of decorum. And what they say is that Donald Trump should be able to make his motion to dismiss based on the fact that he’s the president-elect, but they say that we, the DA’s office, are going to oppose it.
They don’t set up their full reasoning, but they say we are going to oppose it, that there are a lot of options short of dismissal, and that immunity that the president enjoys is a temporary immunity while he is president, that doesn’t mean that you should, in this circumstance, be able to get rid of the case for all time and all purposes, and there are a lot of other considerations such as holding the case on pause until he is no longer president, which presumably is in four years. And so, they’ll be further briefing on it.
They say that during that pendency of a short briefing schedule, there should be a stay so that both sides can be heard, but they asked the court to schedule this very quickly and so that it can be teed up by mid-December for a decision as to how Judge Merchan wants to proceed on Donald Trump’s motion to dismiss the case and the DA’s clear opposition as stated in the letter that they made public today.
So, Mary, with that sort of breaking news, what are we going to be talking about today?
Mary McCord: You know, we’ve already covered the reasons why Jack Smith will probably have to dismiss the federal cases against Donald Trump because of the Office of Legal Counsel finding guidance that a sitting president can’t be prosecuted. We’ve already talked about the impact on criminal cases and also civil cases. But what we haven’t talked about yet is how special --
Andrew Weissmann: Wait, before everyone says, you’re not saying dismissal with prejudice though, right?
Mary McCord: I didn’t say that at all. I just said, we’ve talked about how he will need to dismiss, that’s right.
Andrew Weissmann: I just want to make sure everyone’s not freaking out.
Mary McCord: Yeah, no. (LAUGHTER) And that, you know, once we see what Jack Smith does and he will give us a good indication of that on December the 2nd, and we will be recording on December the 3rd, then we will have a better idea about exactly what that’s going to look like. But what we do know is that during Donald Trump’s upcoming presidency, he cannot be federally prosecuted.
What we haven’t talked about is how the special counsel regulations that do require a final report. We haven’t talked about how we may or may not see that report and what the timing --
Andrew Weissmann: Yeah.
Mary McCord: -- of that may be. We have also had a few new developments in the January 6th cases in terms of how judges are responding to requests to continue those cases. But we really want to also answer a lot of questions that have arisen both from our listeners and just out in the public about recess appointments, because we got a lot of announcements last week about people who Donald Trump intends to appoint to positions, many of which would require Senate confirmation.
And there are some questions about whether he might use a recess appointments authority under the constitution to bypass the Senate confirmation process, and we’ll talk about that. So that is what is on our agenda this morning. Shall we kick it off?
Andrew Weissmann: Yeah, that sounds great. So, should we start with the idea of Jack Smith doing a report? You know, because he said, he’s going to step down by the time of the end of the Biden administration, but there is the possibility of his writing a report. And should we talk about sort of what the rules that they wrote out there (ph)?
Mary McCord: Right. Let me tell our listeners, you know, what the rules say and then kick it over to you for how you think that might actually apply here. So, there are a series of regulations under the Code of Federal Regulations that apply to the Office of the Special Counsel, and various of these we’ve talked about at various times over the course of this podcast.
When the special counsel winds down its investigation, and, of course, this also happened in the investigation that Andrew was very much a part of, the Mueller investigation into Russian interference in the 2016 election.
When an investigation by the special counsel is wound down, the regulations provide that, and here’s what it says, at the conclusion of the special counsel’s work, he or she shall provide the attorney general with a confidential report explaining the prosecution or declination decisions reached by the special counsel.
Prosecution, easy, we know what that means. There’s at least one indictment in January 6th, there’s indictment in Mar-a-Lago. Declination would mean decisions made not to prosecute. So those would be included in the report. And, of course, those were in the Mueller report.
The next provision says that the attorney general must notify the chairman and ranking minority member of the judiciary committees of both the House and the Senate at the conclusion of the special counsel’s investigation, including describing and explaining any instances in which the attorney general concluded that a proposed action by the special counsel was so inappropriate or unwarranted under established department practices that it should not be pursued. So that’s a thing that happens, that’s a not public thing.
And more importantly, for purposes of the report, we’ve been talking about, the attorney general may determine whether public release of the special counsel’s final report would be in the public interest to the extent that it would comply with any applicable legal restrictions, and that could include things like redacting classified or other protected information, grand jury information, things like that. And so, that is really what we’re talking about here when we’re saying, “Will the public ever see this report?”
Now, first of all, Andrew, I want to ask you a question. Have you ever considered whether an indictment itself, because here we have an extremely extensive indictment of Donald Trump and an even more extensive and lengthy 160-plus page detailed recitation of the evidence and the actions on which that indictment was based, and, of course, that is the immunity filing that Jack Smith filed recently in order so that Judge Chutkan would be able to decide what’s official and what’s unofficial, what Donald Trump could be prosecuted for and what he couldn’t.
That is so extensive. It feels very much like a report to me, but the regulations still say a final report. So, have you ever considered whether an indictment and filings in an actual case could take the place of that report?
Andrew Weissmann: Yes, I have. So, this is something that, because I was working for special counsel Mueller, you know, we were very familiar with the regulations that you just talked about.
And I’m going to just take one step backwards just to explain to people why the regulations read the way they do, which is that the special counsel must issue a report, but it’s a confidential report by the special counsel, who’s an internal DOJ employee working for the Department, and that confidential report goes to the attorney general. And then the decision to release or not is the attorney general’s decision, not the special counsel’s decision.
Mary McCord: That’s right.
Andrew Weissmann: It’s the attorney general’s decision. Why is that? Because these regulations were put in place very much in reaction to what Ken Starr had done in connection with the Bill Clinton investigation where many people remember that report, which was very, really voluminous but also had a lot of, let’s say, salacious details, was just widely disseminated by the special counsel, sort of dropped on Congress and made public.
And there was a general sense, I think, that there needed to be a revamp of how this was done and that it would be, yes, you need a report, yes, if there were disagreements between the attorney general and the special counsel, those have to be told to Congress at the end.
But that the issue about making it public would be made by the attorney general, consistent with rules that, Mary, you and I dealt with every day, which is what I call the Jim Comey problem.
It’s the put up or shut up, which is somebody is either charged, in which case the grand jury has made that decision, or nobody really cares about your personal views at the Department of Justice about whether somebody is guilty or not, like that’s a decision by the grand jury.
And so, there’s that tension when you write a report about, “Are you going to start talking about people’s potential criminal liability who have not been charged?” So, this basically says, the special counsel is going to write an internal report about why they decided to prosecute. It could include why they didn’t.
So, for instance, with respect to the January 6th case, there could be a whole host of co-conspirators where there’s a discussion in that report about why they were not charged either along with Donald Trump or separately.
Mary McCord: And let’s think about Special Counsel Robert Hur’s report about the investigation into President Biden and some of the classified information that was found in --
Andrew Weissmann: At some point.
Mary McCord: -- his home. And that lengthy report was made public and it explained his decision not to bring charges or recommend charges against President Biden.
Andrew Weissmann: And that went through the same process we talked about.
Mary McCord: That’s right.
Andrew Weissmann: I should say one thing that can happen is, so you could have the sitting president actually agree and tell the attorney general, “You know, I have no opposition to this, you can go ahead and publish it so that you’re not dealing with this situation where you’re tarnishing somebody who is saying no, no, no, do not make it public.”
And, by the way, just to be clear, the whole goal of this sort of put up and shut up rule is due process. It’s like --
Mary McCord: Right.
Andrew Weissmann: -- you know, you’re under investigation and that ultimately someone decides that you didn’t do anything wrong or you did something wrong, but you’re not getting charged, whatever it is, that’s it.
Mary McCord: Yeah, or that the evidence is just not as solid --
Andrew Weissmann: Fair, right.
Mary McCord: -- as you would want for beyond a reasonable doubt.
Andrew Weissmann: Yeah.
Mary McCord: And, you know, you don’t go to trial if you don’t feel totally confident that you can prove every element of the offense --
Andrew Weissmann: Right.
Mary McCord: -- beyond a reasonable doubt.
Andrew Weissmann: And, by the way, to relate it to something like ripped from the headlines is this in many ways is going to be the issue with respect to Matt Gaetz.
Mary McCord: Matt Gaetz.
Andrew Weissmann: There was an investigation, the Department, we don’t know the reason, decided not to go forward. And so, it’s important for the Department to deal with that under the sort of put up and shut up rule.
Now, there are distinctions when somebody then is saying, “Oh, I want to then be considered for an office where there are disclosure obligations.” And you could say, “Look, if you want to be considered for this, these are the kinds of things that need to be known.” But all I’m saying is that those kinds of issues are going to get brought up again in that contemporary context.
Mary McCord: Right.
Andrew Weissmann: So, anyway, to get to your question, there’s nothing in the rules that says what a final report has to be or how long it has to be or the form of it. So, you could have a one-line sentence that says, “Our final report is the amalgamation of the superseding indictment in the January 6th case and our brief and all the attachments.”
Mary McCord: Exhibits.
Andrew Weissmann: Yes. Now, that wouldn’t necessarily answer the question if they decided not to charge --
Mary McCord: That’s right.
Andrew Weissmann: -- people, there’s nothing in those filings that says that nor should there be, so that you could have a separate paper on that. Now, it doesn’t have to be the Ken Starr report or the Mueller report, it doesn’t have to be that lengthy. That’s something that’s entirely up to the special counsel as to the form it takes.
I am particularly interested in what a report would be, maybe less so with respect to the January 6th case than the Mar-a-Lago case because even though we know a lot, there’s more that we do not know there.
Mary McCord: Yeah. And I would say even before we moved to Mar-a-Lago, even on January 6th, we know a ton about the allegations and the evidence regarding Donald Trump. But remember there’s those other unindicted co-conspirators.
Andrew Weissmann: Totally.
Mary McCord: And even though, you know, they’re definitely scattered throughout the superseding indictment and evidence with respect to them is in the lengthy immunity filing that Jack Smith filed recently, but, you know, there could definitely be more information with respect to each one of those unindicted co-conspirators.
And then part of the question comes back to your issue you were raising, does all of that, even if it’s included in a report and why Jack Smith decided at least initially not to indict them, maybe he thought, “I’ll indict them later,” you know, we don’t know, that kind of thing in the report, those are things that might be rejected because, for the reasons you just indicated, they have not been indicted. And so, you know, in terms of bareness, having an opportunity in court to actually dispute things and put on a defense to things, when it’s just a report, you don’t have that opportunity.
Andrew Weissmann: So, sort of the $60,000 question, the big picture is there has to be a report, whether it’s big or little, whatever the form is, there has to be a report under the special counsel rules. That means Jack Smith will do it. He’s not going to violate the rules on that. And so, the issue is what will Merrick Garland do?
Mary McCord: That’s right.
Andrew Weissmann: Will he seek to make it public? And that is something I’m sure he is thinking about and getting precedent on. You know, he is a long-time judge. He also, way before that, was at the Department.
This is one where I’m going to give you my sense of it, which is the issue of sort of put up or shut up doesn’t come up here because the put up has happened.
Mary McCord: There’s an indictment.
Andrew Weissmann: There have been indictments and they’ve been lengthy. And so, I’m sure there’ll be redactions with respect to classified information, grand jury information, personal identifying information as there were in the Mueller investigation. There were --
Mary McCord: Right.
Andrew Weissmann: -- a variety of redactions that have to happen. But what I think guided Bill Barr there, leaving aside how he characterized it, but in terms of just again, I’m trying to be narrow and dispassionate, but on the decision to make it public was the enormous public interest in this --
Mary McCord: That’s right.
Andrew Weissmann: -- to know what had happened and what was found and what wasn’t found. And so, I think, especially given that you don’t have the same put up or shut up issue that I don’t see how you don’t make this public. Even though it’s going to be about the incoming president, there are reports all the time that are about a sitting president, Ken Starr had one and Robert Mueller had one.
Mary McCord: The Mueller report that Bill Barr decided to release publicly and the Robert Hur report about Joe Biden while he was president. So --
Andrew Weissmann: Absolutely.
Mary McCord: -- you know, the recent precedent really is for these to be made public. And so, I would be kind of surprised if he doesn’t make that decision. The question is, is there time, because the reports, you know, gotta be completed, and clearly, they’ve got all the information and it’s a writing assignment. I often like to say it’s not like it’s a research assignment, it’s just a writing assignment.
Andrew Weissmann: I love that. (LAUGHTER)
Mary McCord: Because the research is done, but then it would have to go through this process of redaction, which can take a little bit of time, and you can’t do that until after the report is ready. So there is that question there, will that be done in time, particularly, I would say, with respect to the Mar-a-Lago report because of the volume of classified that might be in --
Andrew Weissmann: Right.
Mary McCord: -- it would take longer, the intelligence committee would have to review, et cetera, to make sure that all classified is redacted. So will there be time?
Andrew Weissmann: Mary, I have one word for Merrick Garland on this, snap-a-doodle.
Mary McCord: Snap-a-doodle. I’m like, hurry up is two words, but snap-a-doodle is one, so good, (LAUGHTER) very good.
Andrew Weissmann: It sounds like four words.
Mary McCord: Yeah, it does, but it’s not. (LAUGHTER) For those who want to know the spelling, I’m sure Andrew’s got that.
Andrew Weissmann: Yeah, yeah.
Mary McCord: So we will see. And, you know, we may get an idea about this on December 2nd, I don’t know. I mean, that’s when he’s going to tell Judge Chutkan what he’s doing in the January 6th case. He may or may not mention a report, he may only mention, you know, how he might wind down that case, but it’s possible we’ll get some sense then.
And there’s nothing like that due in Mar-a-Lago because that case, you know, is up in the 11th Circuit --
Andrew Weissmann: Right.
Mary McCord: -- Court of Appeals, as we talked about before. And that’s also an issue where under the OLC binding guidance, Jack Smith cannot pursue against Donald Trump, but there are two other defendants in that case. So, that --
Andrew Weissmann: Yeah.
Mary McCord: -- we’ll have to wait to see until there’s some announcement about what’s going to happen there, but until then.
Andrew Weissmann: There are two defendants in that case until such time as Donald Trump becomes president.
Mary McCord: That’s true.
Andrew Weissmann: And then --
Mary McCord: Yes.
Andrew Weissmann: -- I am sure that case will be dismissed --
Mary McCord: Yeah.
Andrew Weissmann: -- as to them and/or delay pardon.
Mary McCord: That’s right. So, this seems like a good time to take a break. And when we come back, we will talk about some other ongoing cases and what may happen to them.
Welcome back. So, speaking of cases that are pending, you know, last week, I think we talked about several of the January 6th rioter, attacker defendants coming into court saying, “Put off my sentencing, put off my whole schedule, my pretrial schedule, because I’m going to be getting a pardon.” And most of the judges have been saying, “Nope, we’re not going to do that yet.”
Andrew Weissmann: Republicans and Democratically --
Mary McCord: Yes, yes.
Andrew Weissmann: — appointed, including judges appointed by Donald Trump.
Mary McCord: That’s right. In fact, one of those judges gave somebody an eight-year sentence just a few days ago. So clearly thought. And we’ve talked about this and we can talk about it again that there’s a big difference between, well, first of all, that there’s no guarantee about a pardon, but a pardon doesn’t mean you didn’t commit a crime, in fact, to the contrary, and these are serious cases. And whatever Donald Trump’s immunity is does not extend to these defendants.
Now, there were two judges who, this past week, did decide to put off the trial, and that was in the interest of conserving judicial resources. And we could agree or disagree that that was the right decision to make. I personally think, I would’ve liked to have seen them just move forward.
But I do also understand that in the posture of those cases, it wasn’t a case that’s already through a trial, there’s already a verdict, it’s just awaiting sentencing. We saw many of those go forward. It wasn’t one that was so early that they just are having, you know, status conferences and setting deadlines and those have gone forward.
This was one where there was a request to move the trial date into a little bit of a later date, trials that were otherwise going to go forward, I think, in December, at least that’s the situation with one of those defendants.
And the judge there said, “Look, jury trials, they’re a big drain on resources of the court, they’re a drain on the jurors obviously, and what I will do is I will postpone this trial, I think, till February, just in the interest of conserving resources if it’s a kind of a case that might go away after the new administration comes in.”
And like I said, I don’t really like that. I sympathize these judges have been trying these cases for three and a half years and they’re now thinking, you know --
Andrew Weissmann: Triage, triage also.
Mary McCord: Triage, triage.
Andrew Weissmann: And the reports are that these weren’t the most serious of the cases. So that if you’re going to be doing ones, you could imagine saying, “I’m going to prioritize” --
Mary McCord: That’s right.
Andrew Weissmann: -- different ones.
Mary McCord: It’s also not a dismissal, right? It’s just --
Andrew Weissmann: Yeah, of course, not, of course, not.
Mary McCord: -- scheduling the trial a little bit later.
Andrew Weissmann: So, you know, I tend to have more of a view that the former Chief Judge Beryl Howell, when she said, “Look, whatever a president is going to do, whether they’re going to pardon or not, I mean, they have their own prerogatives and powers, and that will either happen or not happen, and I have to do what I have to do. And so, I’m going to go forward with what my obligations are, and whatever the president does, he will do.”
Mary McCord: Yeah.
Andrew Weissmann: That tends to be sort of where I come out. But I understand the issue of scheduling.
Mary McCord: Yeah.
Andrew Weissmann: And also, these are just two of the judges, it was just two cases.
Mary McCord: Right.
Andrew Weissmann: And so, to me, I also don’t like the fact that it sort of gets credence to this because we don’t know that that’s going to happen.
Mary McCord: Yeah.
Andrew Weissmann: And sort of normalizing it in advance, because what happened on January 6th is horrendous. I mean, I guess it’s debatable, but, to me, it’s really hard to see it as a legitimate debate.
Mary McCord: And no judge has thought that there was anything legitimate about that attack.
Andrew Weissmann: Of course.
Mary McCord: Republican-appointed judges --
Andrew Weissmann: Exactly.
Mary McCord: -- Democratic-appointed judges, Donald Trump judges, to a person, have all been very, very serious with defendants about what they did not only were crimes once they’ve been found guilty but also were attempts to undermine the will of the voters.
Andrew Weissmann: And including judges really talking about the role of facts in court.
Mary McCord: Yes.
Andrew Weissmann: And talking about how they are not going along with this idea of trying to rebrand what happened. And that is coming from the wide spectrum of judges, and this is sort of the best of the judiciary, which is --
Mary McCord: I agree.
Andrew Weissmann: -- regardless of who appointed them, regardless of sort of quote, “political background,” they’re just doing their job, and it’s so useful to try and remember that for our audience that you have serious judges where you don’t have to ask the question who appointed them.
Mary McCord: That’s right. And they’ve seen the evidence over and over and over again, which is I think partly why they feel so strongly.
So last thing I want to say about this before we take a break is there was an interesting filing by Jack Smith just in the last couple of days in response to another defendant who is seeking to postpone his sentencing. He already has been through a trial, he’s been convicted, to postpone his sentencing, you know, making the argument really not just about, you know, “I’m expecting to be pardoned,” but also, you know, suggesting that this election, right, means that there’s not, you know, support for these prosecutions.
This is what Jack Smith’s team said in response to that. The defendant cites the results of an election as an indication of the American people’s will with respect to this specific case. That is an unfounded assumption. The American people have a diverse range of motivations for their votes and the government does not nor can it discern any specific intent of the electorate as it relates to, in this case, Mister Winick (ph), who was the name of the --
Andrew Weissmann: Right, this defendant, right.
Mary McCord: -- defendant in this case. Like, “Oh, I’m voting for Trump because I want Mister Winick (ph) not to be sentenced.” Like, I don’t think that’s what was in the minds of anybody except for maybe his family and maybe not his family.
But I think it also shows a broader point. I mean, I think it’s a point they very much should make, but I’ve had a lot of discussions with people about the impact of some of the more extreme things that Donald Trump said in the lead up to the election and whether the results reflect that the American people wanted those extreme things.
And I will say every single interview, polling data, focus group, every single bit of reporting I’ve seen has shown that people voted out of self-interest based on the economy, and the other issue they cared about was immigration. I have heard, you know, in terms of the masses, now, there might be certain, you know, Trump MAGA people who want --
Andrew Weissmann: Of course, it’s a bell curve.
Mary McCord: Yeah, they want retribution, but the bulk, it wasn’t because, “I want him to, you know, prosecute his political enemies or I want him to pardon the Jan 6’ers.” It was the economy, the economy, the economy, immigration. So, you never know what’s in everybody’s head when they go to the polls.
Andrew Weissmann: Yeah, of course. And even with one person, there can be a multitude of reasons that they haven’t thought through. And certainly with respect to the electorate at large, like a judge isn’t going to start tea leaf reading on all of that.
And obviously, this is one where the proof will be the pudding as to how this sort of shakes out. But this maybe is a really good segue because when we come back, Mary, I’m going to ask you to walk us through something that is a legal term that we have heard a lot about, which is something called, recess appointments.
So, when we come back, we’ll cover what that is and what the genesis is for that authority and how it might work here. But let’s take a break and come back and talk about that.
Mary McCord: Sounds good.
Andrew Weissmann: Hey, welcome back. So, Mary, let’s talk about recess appointments. And I think probably everyone who’s listening has heard by now, Donald Trump has made various nominations.
Mary McCord: Well, not yet. He’s said he will nominate.
Andrew Weissmann: Yes.
Mary McCord: Right? Because he can’t do it yet.
Andrew Weissmann: Yeah. He can’t officially nominate, he’s not precedent.
Mary McCord: Yeah, yeah.
Andrew Weissmann: But he has said, this is who I’m planning on nominating for attorney general, Department of Defense, the DNI, the head of the intelligence community, HHS.
Mary McCord: HHS.
Andrew Weissmann: Yes.
Mary McCord: Transportation, et cetera, yeah.
Andrew Weissmann: And with respect to that, and there’s a whole panoply of people and some, I think, it’s fair to say, quite controversial, some with significant potential issues in their background.
And there’s been discussion about whether they will go through a full background check, but more to the point of this legal issue is discussion that Donald Trump should be able to give them recess appointments and that they wouldn’t have to go through the normal process, which is that the president, to your point, Mary, he can’t do it now, but when he’s president, he can nominate, for instance, the Attorney General of the United States.
And then that person typically, the normal process is they’re vetted, there’s an FBI background check, they’re vetted, and they are reviewed by the Senate, not the House, but by the Senate for advice and consent.
And every now and then, even with a Senate that is of the same party as the president, sometimes the nominee for a variety of reasons is not confirmed. There tends to be a bipartisan view amongst, I would say, right-thinking people that a president, assuming you nominate somebody within the sort of mainstream, who doesn’t have these sort of, you know, real problem, that elections have consequences and the president is entitled to, and I’m going to use the term his, because we still are yet --
Mary McCord: It’s always been a him.
Andrew Weissmann: Right. We still do not have a her, but it’s his prerogative to surround himself with the people he chooses. But there is that advice and consent process.
But even with a Senate that is going to be majority Republican where they believe it’s about 53 senators, I think Pennsylvania is still --
Mary McCord: Yeah.
Andrew Weissmann: -- outstanding, but even with that, Donald Trump has floated the idea of something called a recess appointment. And so, Mary, I know you’ve done a lot of thinking about that.
I, in the last couple days, have also just, I will say, done a lot of thinking, but I have read the key decisions on this. There was a key one from the Obama time period.
Mary McCord: Right.
Andrew Weissmann: But sort of like, where does that come from, the idea that the president has some power to do a recess appointment? This is because I’m a lawyer, I have a million follow-up questions, which is, what is it, what’s the derivation?
Mary McCord: Right.
Andrew Weissmann: How would it work here? Would it be legal? How long would the person, if there was a recess appointment, how long could they serve before it somehow had to go back to the Senate for --
Mary McCord: Yeah.
Andrew Weissmann: -- advice and consent? So, have I asked enough questions for it?
Mary McCord: Yes, yes. Okay.
Andrew Weissmann: Okay. (LAUGH)
Mary McCord: Where does it come from? The constitution, right? So, the constitution says in Article II, which is the article that applies to the powers of the presidency, the president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions, and that really means like a commission to a person to hold a particular office, which shall expire at the end of their next session.
So, this, you know, dates back to when Congress would be in session for a period of time each year. And then, you know, we didn’t have airplanes and we didn’t have quick means of --
Andrew Weissmann: Cars.
Mary McCord: Cars, right?
Andrew Weissmann: Wait, but, Mary, does that mean we didn’t even have iPhones?
Mary McCord: And we did not have even the Internet.
Andrew Weissmann: No.
Mary McCord: Yes. Can you believe it?
Andrew Weissmann: No.
Mary McCord: Yes, I know, it’s hard to believe. So, you know, granted, we also did not have, you know, California at the time either, but --
Andrew Weissmann: Wait, no California and no iPhone?
Mary McCord: Yeah.
Andrew Weissmann: This sounds like hell.
Mary McCord: Right, yeah, yeah, right. So even when we’re just talking about the states on the East Coast, it still is a quite a bit of transportation time to get to and from Washington, D.C. And so, when they would recess, they would tend to recess for a long chunk of time before coming all back to have --
Andrew Weissmann: Right.
Mary McCord: -- a session. And the idea was that if some position, as a principal officer, so not every political appointee has to be confirmed by the Senate, but certain officers, all cabinet heads, for example, and usually, the next person under the cabinet head, and some people even below that in some cases have to be confirmed by the Senate, and the idea was, “Well, if there’s a vacancy, someone dies or they become unable to perform their duties or they resign, that, you know, it shouldn’t have to be that we wait for everybody to, you know, get on their horse and ride to --
Andrew Weissmann: Right.
Mary McCord: -- Washington, D.C. --
Andrew Weissmann: Right.
Mary McCord: -- so that we can all come and join Senate and just to take up this issue of a new nominee. So, in modern years, we do have airplanes and we do have cars.
Andrew Weissmann: Mary, before we get to that, what’s the time period, because I understand what you’re saying is, because of this concern in the 18th and 19th century of sort of like when this was done, that this is so anachronistic, but how long did that recess appointment last? In other words, I understand that was done because of this concern.
Mary McCord: Yeah, it’s not just till they come back in session, right? And that as this constitution said, “Shall expire at the end of their next session,” so if they’re out on recess, that’s right. So, they’re out on recess, an appointment gets made, they come back, the appointment stays. It stays all the way till the end of that session. So, that can be a year or very close to a year.
So, for example, if Donald Trump were able to make recess appointments, if the Senate went on recess, January 20th at 12:01 P.M. in the afternoon for at least 10 days, and I’ll explain why that --
Andrew Weissmann: Yeah.
Mary McCord: -- is in a minute, and Donald Trump then made all of his cabinet members through recess appointments, even once the Senate came back, those cabinet members would stay in office through the end of that session, the end of that year.
Andrew Weissmann: But what I’m hearing you say though is, this is a total anachronistic provision because this sort of reason for it isn’t really valid anymore, which is that you needed this because of the practicalities.
Now, there is the language in the constitution, but let’s just get real, the entire raison d’être for that language does not exist. I mean, as --
Mary McCord: That’s right.
Andrew Weissmann: -- people talk about like, this is sort of a classic case of that provision in some ways, his son said it, like, yes, maybe you want to take advantage of it because the wording’s there, but the very purpose and reason, and the reason to say, “You know what? We’re not going to insist on the Senate having an advice and consent role is because of the absolute practicality that you can’t be without” --
Mary McCord: Yeah.
Andrew Weissmann: -- “these senior people during this interim time period.” But that doesn’t exist especially if the Senate has ample time to do this and voluntarily says, “We’re drawing from the issue.”
Mary McCord: Well, this is what I think is so shocking here. And, you know, this came out through some sort of social media posts where the incoming president-elect Donald Trump suggested that he just didn’t have time to mess around with the confirmation process and he wanted the Senate to go into recess so that he could appoint everyone just quickly through recess appointments.
And to somewhat shockingly, to me, that was not immediately denounced by the Senate or even members of the House who don’t actually have a say in this, except for in a small way that I’ll get to, instead, it was like, “Well, we’ll think about that.”
Now, why members of Congress who are a separate branch of a three-branch government of, co-equal branches of governments, would want to give up their constitutional authority to provide a check and a balance on presidential appointments?
I shouldn’t say, it’s beyond me because it’s not beyond me, it’s all political, but it really still shocks me, like they would sort of neuter themselves from their role. But they have not said they will do it. There was not an --
Andrew Weissmann: Yeah.
Mary McCord: -- immediate denunciation. All right. So, let me get into a few nitty-gritties and then we can play this out.
Andrew Weissmann: Before we get to the nitty-gritties, I just thought your last comment, just to be really nerdy, reminds me so much of, you know, you and I teach law school and there’s a very, very famous concurrence by Justice Jackson in a case called Youngstown.
Mary McCord: Yeah.
Andrew Weissmann: And Justice Jackson was the Chief Prosecutor in Nuremberg. And so, very familiar with, A, the real world, but also autocratic systems and fascism. And in that concurrence, so don’t worry, I’m not going to go on and on, but I just think one of the most --
Mary McCord: I love this case, so it’s fine.
Andrew Weissmann: I do too. And I was recently rereading this concurrence. One of the things that he talks about is the transformation of the American presidency and its growth in power that he was seeing. And this was a case that was decided sort of in the mid-20th century, post-World War II.
Mary McCord: A war, yeah, war-related cases.
Andrew Weissmann: And he very much talked about the growth of the presidency and the power of it comparing it to the other branches and also comparing it over time since the constitution was framed.
And I think what you’re talking about, this idea that the Senate wouldn’t have the sort of the abiding by its own institutional concerns as a separate branch of government is such a reflection of what Justice Jackson observed, you know, at this 0.3 quarters of a century ago, which is still continued to be true and has grown, is this idea of that the presidency has taken on this disproportion of power. And this is an example of it.
Mary McCord: Yes.
Andrew Weissmann: That sort of growth. But let’s go back to something --
Mary McCord: Yeah.
Andrew Weissmann: -- you had said. One of the nitty-gritties you had flagged for us was this issue of 10 days.
Mary McCord: Right.
Andrew Weissmann: And I know there’s a Supreme Court case that sort of flagged this issue of how long does the Senate have to be in recess before it’s considered, you know, a sufficient time to have a recess appointment?
Mary McCord: Right. And this came up, and you can see sometimes why, even though I agree with you that the reason for the recess appointments clause is really no longer in existence, it comes up sometimes when the Senate sits on a nomination for a very, very long time, like a year.
And presidents are like, “I can’t move along.” And they think, “Well, okay, if the Senate goes in recess, I’ll make an appointment.” And this case arose because what the Senate did is they said, “We’re going to recess, but not really recess, because we’re going to have these pro-forma sessions every three days where the Senate’s open, but we’re not actually there, no businesses getting done, but that means we’re not really in any kind of extended recess.”
And this was challenged as to whether the president could make appointments during this period because these pro-forma sessions really, you know, didn’t constitute real sessions.
Andrew Weissmann: They weren’t real.
Mary McCord: Right. And so, the court had to make a number of decisions in that case. One is, does a recess appointment apply to intrasession recesses as opposed to intercessions? So, you know, there’s one big, long session every year, historically, there has been, and then it ends and then a new one starts. So that recess between one session and the next has always been thought to be where the recess appointments clause applied.
But now, we know they’ll take shorter recesses, right, throughout a session that is an intrasession recess. So, one question was, does it even apply to those intrasession recesses? How long would it have to be? Do these pro-forma sessions of Congress mean that they, you know, aren’t really in recess?
And that went up to the court and the court decided that to make a recess appointment, a recess has to be at least 10 days. And they also decided that those pro-forma sessions were sessions and so, those three-day recesses were not long enough for Obama to make his recess appointments.
Andrew Weissmann: Basically, if the Senate says it’s in session, it’s in session --
Mary McCord: That’s right.
Andrew Weissmann: -- where, like, as long as he can conduct business, we don’t care if they call them pro-forma or not, we’re going to defer to that.
Mary McCord: That’s right.
Andrew Weissmann: That was the majority holding.
Mary McCord: That’s right. So, now, what we know from that is a recess appointment can be made, you know, during an intrasession recess so long as it is 10 days or longer. So, typically, when the House and Senate recess, they each do it, or the House will do it by concurrent resolution, say the House and Senate are going into recess. The Senate will sometimes say, “Okay, we are too.” It sometimes will say, “Well, we’re not, but you can,” that kind of thing.
So, what they could do if they wanted to be complicit with Trump’s request is they could, you know, both agree, We are going to recess immediately after inauguration for at least 10 days and let the president basically put all of his appointees into office as recess appointments,” and those will go through at least the end of the session, so the end of the year.
But there’s also been a lot of talk out there about the president forcing an adjournment, because going in recess is called an adjournment, right, of the Congress. And that’s where I want to clear some things up because there is not some plenary or unilateral authority anytime the president wants to, to say, “You, guys, are both adjourning,” you, guys, meaning House and Senate.
There is a clause, however, that says, “In case of disagreement between them,” the House and the Senate, “with respect to the time of adjournment, the president may adjourn them to such time as he shall think proper.” So, this means if the House and Senate disagree about the time to adjourn then the president can say, “You’re adjourning as of Tuesday until, you know, March,” or whatever.”
Andrew Weissmann: So the issue is, could the Senate and the House collude and create an artificial disagreement or a disagreement and thus give the president the power to decide that issue?
Mary McCord: Or they wouldn’t both because if they’re both going to collude, they might as well just take the recess, right, they might as well just agree to the recess. But here --
Andrew Weissmann: Totally.
Mary McCord: -- let’s assume that the Senate is like, “No, we’re not so keen on recessing. We’d actually like to use our authority to give advice and consent, our constitutional authority.” But --
Andrew Weissmann: Yeah.
Mary McCord: -- the House could potentially collude and say, “Johnson could potentially get the majority there to pass a concurrent resolution calling for the House and Senate to recess.” Senate could say, “We’re not going to, but you go ahead.” And then the question would be, “Is that actually a disagreement as to the time” --
Andrew Weissmann: Right.
Mary McCord: -- or is that just you’re recessing and we’re not?”
Andrew Weissmann: Yeah. I think that wouldn’t be a timing thing because
Mary McCord: That’s my argument.
Andrew Weissmann: -- you’re giving the House then a veto over the Senate whereas I think the difference is, it’s like, it should be eight days versus four days.
Mary McCord: That’s right.
Andrew Weissmann: That would be the issue.
Mary McCord: So I do think the better the argument there is that this would not give the president the authority to then force an adjournment because it would not be a disagreement.
Andrew Weissmann: Yeah.
Mary McCord: But that is something no court has ever had to decide --
Andrew Weissmann: Yeah.
Mary McCord: -- because it hadn’t happened before.
Andrew Weissmann: So, one thing I wanted to flag, so talking about the language in the constitution and a lot of the issues that you’ve been talking about, especially the nitty-gritty come from this Obama era decision in 2014, which is the Canning case, C-A-N-N-I-N-G.
Mary McCord: Noel Canning.
Andrew Weissmann: Some people might be like, “Andrew, why are you going into this? I thought law school was over.” And this basically is like law school third year, but --
Mary McCord: This is advanced.
Andrew Weissmann: Here’s why this is interesting. That decision that, Mary, you’ve been talking about, has four justices, and it’s concurring, but they dissent as to the reasoning and like they have very, very different reasoning.
Mary McCord: They have disagreement as to the reasoning, yes.
Andrew Weissmann: Exactly. And of the four justices who are in that concurrence with the different reasoning, it’s written by Justice Scalia. He has obviously passed away, so he is not on the court. The other three justices are on the court.
Mary McCord: That’s right.
Andrew Weissmann: So Justices Alito, Justice Thomas, and the Chief Justice Roberts. So you have three justices who may have a very different view of the scope of the recess appointments clause, and I would say in general, a narrower view of sort of the president’s power.
Now, they don’t have to address the specific issue that we’re talking about, but it’s hard to latch on to Canning as definitive in terms of what the current court would do because the composition of the court has changed dramatically since 2014, and we have some indication as to where three of the current justices are from that concurrence.
Mary McCord: Yes. Although one of the issues in that concurrence, I think, frankly, is a little unclear how it would apply, which is that their view was the vacancy has to occur during the recess in order for the president to be able to make --
Andrew Weissmann: Exactly.
Mary McCord: -- recess appointments. So it can’t be a preexisting vacancy. But let’s think about this. Every political appointee, current political appointee under Joe Biden’s presidency, you know, as a matter of practice because they’re political appointee, resigns as of noon on January 20th when a new president comes in.
And so, if the recess is immediate, question, is that vacancy occurring during that recess? I mean, I think there’s an argument, “Well, yeah, because it didn’t exist until then.” It would depend, I guess, on how fast they go into recess.
So this could or could not be a feature. So, the point is, this is a provision never been used. I think it would really be and just such an overreach and such an overstep for a president to order an adjournment when the Senate is not in agreement to adjourn, I think it would be a complete dereliction of duty for the Senate to agree to adjourn and forego it’s constitutional responsibility, but we shall see.
Andrew Weissmann: This is something that we are going to keep an eye up because we will know a lot more as January purchase. So, Mary, you know, it’s sort of amazing that there’s still so much to talk about so many legal issues, a lot of things to keep an eye out for. And everyone should remember, we’re going to get back to people about our plans for the upcoming year when --
Mary McCord: That’s right.
Andrew Weissmann: -- Mary, I am so lucky that we’re going to continue to meet like this.
Mary McCord: I agree. And, you know, the thing about this, you said there’s never an end of things to talk about, like I keep learning new things. I think a lot of people, when there was some talk out there about the president could force an adjournment, I mean, my text messages are blowing up like, “What? Where’s that in the constitution?” And, you know, I’ve been a lawyer a really long time and I’m like, “Let me learn about this disagreement over the time business because I don’t know anything about that.” So, I keep learning.
Andrew Weissmann: Right.
Mary McCord: You keep learning. It’s all good.
Andrew Weissmann: Great.
Mary McCord: Except that it’s not always good but -- (LAUGHTER)
Andrew Weissmann: Yes, exactly.
Mary McCord: The learning is good. The application in real life is not always so good. So, let’s hope the Senate does the right thing here.
Andrew Weissmann: Exactly. Thank you so much for listening. Remember to subscribe to MSNBC Premium on Apple Podcasts if you’d like to get this show and other MSNBC originals ad-free.
And this week, you can get a Premium-only bonus episode of, “Why is This Happening?,” which is Chris Hayes’s podcast. And he sits down with none other than Rachel Maddow to reflect on lessons learned in this election cycle and what to expect in the new administration, including, as we just talked about, the potential for recess appointments we spoke about in today’s episode.
So, be sure to check that out. I know Mary you and I will be to see how they cover this. You know, they will have such a different take on this.
Mary McCord: Yeah.
Andrew Weissmann: We’re looking at it very much from a legal perspective. They will have a very different sort of political lens to it. So, that’s always an option for MSNBC Premium listeners.
Mary McCord: And, of course, to send us a question, you can leave us a voicemail at 9173422934, or you can email us at prosecutingtrumpquestions@nbcuni.com.
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