As the Special Counsel winds down the DC criminal case and the Florida appeal, veteran prosecutors Mary McCord and Andrew Weissmann analyze the strategy behind getting a dismissal without prejudice before Donald Trump takes office, while dispelling the notion that Jack Smith “folded” in any way. Then, they head to New York to break down the nuance of Judge Merchan’s decision to postpone Trump’s sentencing, as he accepts briefing on a motion to dismiss the case that both parties agreed to. And before wrapping up, Mary and Andrew review some of the presumptive nominees Trump has named for top Justice Department posts, and the contrast of working on behalf of a client versus working on behalf of the Constitution.
A note to listeners: Since we recorded, the 11th U.S. Circuit Court of Appeals also granted Special Counsel Jack Smith’s request to dismiss that appeal without prejudice.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to Prosecuting Donald Trump. It is Tuesday morning, November 26. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord.
Hi, Mary, and happy in advance.
Mary McCord: Thanksgiving Eve.
Andrew Weissmann: It’s Thanksgiving Eve Eve.
Mary McCord: Oh, you’re right. We’re not even to Thanksgiving Eve yet. Thanksgiving Eve Eve. Okay.
Andrew Weissmann: So what are you doing for Thanksgiving, Mary?
Mary McCord: Well, all my kids are coming home, my adult kids, so we will be having dinner here together and giving thanks for them and family and all the good things we have in life as opposed to some of the things that are not so great.
Andrew Weissmann: Which will be the topic of our conversation.
Mary McCord: Oh, my goodness.
Andrew Weissmann: So I think I know this, but I’m not sure everyone else does, but one of your children is a chef.
Mary McCord: That’s right. So I’m very excited about him coming home.
Andrew Weissmann: So does he do some of the cooking?
Mary McCord: Yeah, it’s great because then we work together, and I actually become more of the sous chef and he becomes more of the chef. So I’m looking forward to that.
Andrew Weissmann: That’s lovely, isn’t it?
Mary McCord: I just get to do what he tells me to do. How about you?
Andrew Weissmann: So our family does this really great thing. I grew up on a block in New York where the balloons for the Macy’s Thanksgiving parade are blown up. And it’s around the Museum of Natural History. The floats and the balloons are all blown up there. And everybody on our street would have something called balloon parties. And now the street’s cordoned off and there are lots of police and stuff. But the balloons, as my father used to say, the balloons are blown up and then they’re netted. So they’re sort of facedown on the ground. And he said it’s like they’re under arrest.
Mary McCord: Oh, gosh.
Andrew Weissman: So the balloons were blown up there and we’d have this big open house that everyone sort of came. And it was just all ages from 90-year-olds to babies. And everyone sort of flocked in. It’s such a great start of the holiday season. So I’m going to be with my family and extended family.
Okay. So, Mary, there’s a lot that went on. So what are we going to talk about?
Mary McCord: Right. So obviously, top of the show, we will talk about Jack Smith’s filings yesterday. He has moved to dismiss and Judge Chutkan has dismissed the January 6th federal prosecution in Washington, D.C. He’s also moved to dismiss the appeal of the dismissal of the Mar-a-Lago case as to Donald Trump alone. And there are some nuances and details to both of these that we need to talk about.
We will, of course, also talk about Judge Merchan having postponed the sentencing in the Manhattan case brought by District Attorney Alvin Bragg and what is happening there, the briefing on a motion to dismiss that was at the joint request of the parties. So that, I think, has been kind of badly botched in some of the news I’ve seen that has suggested like that was some sort of big surprise. We will talk about that.
We will also then talk a little bit about some reporting that came out in The Washington Post last week that Trump plans to fire the entire Jack Smith prosecution team when he takes office. And we’ll talk about what might be a few stumbling blocks to that. And then we will finish up talking about some of the people who Trump has announced as appointees, particularly at the Department of Justice. Matt Gaetz is now out. Pam Bondi is now the presumptive nominee. Of course, it’s too early to actually nominate anyone because Trump can’t do until after he’s inaugurated on January 20th. But the presumptive nominee is Pam Bondi.
So anyway, shall we start with the very much expected motion to dismiss both the January 6th case in D.C. and the appeal in Florida with respect to Donald Trump?
Andrew Weissmann: Sure. Let’s start with D.C. first, and then we can move down to Florida because there are sort of very distinct —
Mary McCord: That’s right.
Andrew Weissmann: — issues there. So what happened yesterday is there was a filing that was made by the government, but it said in it that the defense, that would be Donald Trump, agreed with the relief that was sought by the government. And some people who are listening might think, well, of course, why wouldn’t the defense agree that the government is moving to dismiss the January 6th case? So of course, the defense would agree, but there’s a wrinkle, which is that the government moved to dismiss without prejudice. And the statement in there was that the defense agrees with the motion.
Mary McCord: Or does not object to the motion.
Andrew Weissmann: Yeah.
Mary McCord: And just so people know, one of the federal rules is that when any party is going to file a motion, they’re obligated to reach out to the lawyers for the other side and get that lawyer’s position on the motion because judges want to know.
Andrew Weissmann: And to state it.
Mary McCord: And to state it. And it needs to be right there in that first paragraph. In fact, usually, oftentimes it’s in the title, right? Government’s unopposed motion to do blah, blah, blah, or consent motion or agreed motion.
Andrew Weissmann: Exactly.
Mary McCord: But here, the end of the first paragraph, it says the government has conferred with defense counsel who does not object to this motion.
That way the judge knows I don’t need to wait for an opposition. This is not objected to.
Andrew Weissmann: And she didn’t.
Mary McCord: And she did not.
Andrew Weissmann: And so the second thing that happened is she granted it. So in one day, you have the government having moved to dismiss without prejudice and the judge has entered an order dismissing without prejudice this case. We’re going to return to the issue of the with or without prejudice because that’s really about sort of what could happen in the future. Why don’t we talk now, though, about the grounds, essentially what the arguments are for why Jack Smith, why the government did this at this time, because it’s quite a lengthy submission in many ways about the history that’s animating this.
So, Mary, what did the government say as to why it was taking this position?
Mary McCord: Yes, and listeners who heard our deep dive into the Office of Legal Counsel or OLC opinions about whether a sitting president could be indicted or prosecuted will be refreshed here because, as we expected, this is something that Jack Smith, you know, all federal prosecutors, all the Department of Justice are bound by OLC opinions. And what Jack Smith points out is that this case is in a little bit different posture than what is directly addressed in that OLC opinion, which is could you indict a sitting president, and could you prosecute a sitting president?
And what Jack Smith mentions in his motion is it didn’t directly address what about when a president has already been indicted, the prosecution is ongoing, you know, it’s well in train, does that guidance still apply? So Jack Smith represents in his motion that he consulted with the Office of Legal Counsel, OLC, to answer that question about would this sort of categorical guidance in the OLC opinions from 2000, which reiterated and reaffirmed an OLC opinion from 1973, would that still be binding here?
And the answer that Jack Smith got back from OLC was that yes, for all the same reasons that the original opinion relied on for why a sitting president could not be indicted or prosecuted, those same reasons would apply in this situation. And because of that, that’s why Jack Smith says this case must be dismissed.
However, Jack Smith also refers to parts of the OLC opinion, and this gets directly to this with or without prejudice issue, that says OLC explained that because a sitting president’s immunity is temporary, extending only so far as his term in office, it would not subvert the important interest in maintaining the rule of law if there were to be a prosecution after the president is no longer sitting.
Now, just for listeners, this is a different type of immunity than the immunity —
Andrew Weissmann: Exactly, exactly.
Mary McCord: — the Supreme Court ruled on this summer, which is about whether you are immune for prosecution for official acts, and we’ve talked about that at length. This is just can you be prosecuted at all, period, while you are sitting as president.
Andrew Weissmann: Right. Whether it’s for anything, whether you shot somebody, whether you had a speeding ticket, whether you did it in office, the Trump Supreme Court immunity decision is about sort of for all time for certain acts, you cannot be criminally prosecuted. And there’s a separate decision about civil liability.
This is really just about a temporary period of not being subject to criminal prosecution during the time period that you are president. And just to put a fine point on it, in case people haven’t studied up on our “Prosecuting Donald Trump” episodes, This is like a recap. When Mary’s talking about these are opinions from the Office of Legal Counsel, this is all internal DOJ policy. When we talk about opinions, that’s the way one refers to what the Office of Legal Counsel does. They issue opinions that are binding. If you’re somebody like Jack Smith or any other employee of the Department of Justice, it’s also not uncommon for when you’re at the department and you’ve got a legal issue that’s of significance that you go to the Office of Legal Counsel.
But just to be clear, that is not a court of law. So this is not a legal opinion. And there actually is a dearth of legal —
Mary McCord: It’s not a court opinion. It is a legal opinion, but it’s not a court opinion. Right.
Andrew Weissmann: Exactly, so it’s not the court that has said this is required or not required. This is something that I was sort of very aware of during the Mueller investigation, the idea that you don’t have a court saying this is or is not something that’s legally required. I mean, just to be fair, the Office of Legal Counsel has in their written opinions does give a lot of reasons as to why they think this is the best reading of the law, that you wouldn’t want to have that sort of distraction of the elected president during the time period that he is the president.
Should we turn, Mary, to this issue, though, of this temporary period? There is a sort of arcane issue that comes up because there’s a slight suggestion in the written filing by Jack Smith about what’s called the statute of limitations. And I think this is important and interesting because it’s something I was definitely thinking about during the Mueller investigation, which is if the Office of Legal Counsel opinion is correct that during this time period that Donald Trump is president or anybody is president, they cannot be criminally prosecuted. Then what happens is the time period is excluded from the statute of limitations, which is, to put it in legal jargon, there would be what’s called equitable tolling of the statute.
So sometimes you have to bring a case within a certain period of time or it’s gone.
Mary McCord: Really, always, right? Criminal and civil. There’s a statute of limitations and there are various exceptions about if you didn’t know the source of your injury, et cetera, et cetera.
Andrew Weissmann: Exactly. There are lots and lots of different rules, but criminally, the sort of default is a five year statute of limitations. And one of the ways that you could extend that time period is if the government cannot bring the case during the time that somebody is president, that would be told from, let’s say, January 20th until four years later, January 20th, when they’re out of office.
Mary McCord: Or at least there’s an argument. I mean, I think just to be clear, the OLC memo, like you said, notes the possibility that a court might equitably toll the statute of limitations to permit the proceeding against a president once he’s out of office. We don’t know the answer to this question because it’s never happened before.
Andrew Weissmann: Exactly.
And so my point is that if a court said that the OLC is correct, that you can’t do it, the government would have an incredibly strong argument that that time period should be excluded. Otherwise, you really are giving the person not temporary immunity, but sort of almost full immunity.
And so on page five, Jack Smith makes reference to this saying, but OLC recognized that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency, quote,” is a legitimate one” unquote. And it noted the possibility that “a court might equitably toll the statute of limitations to permit proceeding against the president once out of office” unquote.
So why do I raise that? Because we don’t know whether a court’s going to agree with OLC or not. And one thing that I was very concerned about when I was in the Mueller investigation is that right now a sitting president would have the view, which is you cannot charge me and go forward with a criminal prosecution while I’m a sitting president. But as soon as they are no longer the president, their interest is to flip and say, oh, you should have charged me because they want the statute of limitations to have run. And you should have gotten an answer. And the government, by not getting an answer to that question, either during the Mueller investigation or now, has left that ambiguity.
So this is sort of a looming issue that has been unresolved by the courts because we have rarely been in this situation except for four years ago, during the Trump administration.
Mary McCord: And so this all gets us back to this words without prejudice. Right. Exactly. As Jack Smith says in the penultimate paragraph, although the Constitution requires dismissal in this context, the context we’re in, consistent with the temporary nature of the immunity afforded a sitting president, it does not require dismissal with prejudice. As we talked about a week or so ago, with prejudice means this case cannot be rebrought. Without prejudice means it could be rebrought. So this leaves open the possibility that four years from now, the government potentially could rebring the case, then seek to have a judge rule because no doubt Donald Trump’s attorneys would come in and say statute of limitations is expired and move to dismiss it. And then the government could argue the statute of limitations should be equitably told for the four years that Donald Trump was in office so that we are now resuming justice, though we were on November 25th of 2024, the day that the case was dismissed.
What I think is really significant about this is that, again, going back to the very top of this episode, Donald Trump’s attorneys did not object to this motion. In other words, they didn’t say we agree with the dismissal, Your Honor, but we think it should be with prejudice. They could have done that. They could have taken that position.
Andrew Weissmann: Why do you think they didn’t?
Mary McCord: I’m not entirely sure.
Andrew Weissmann: Just to be clear, I’m not either because I don’t know what the downside would have been. The judge may have said no, but why not ask for it? Because with prejudice is a better outcome.
Mary McCord: For them. Absolutely.
Andrew Weissmann: It might be very, very remote, just so our listeners know. It might be extremely remote that in four years there would be another prosecution. But if you’re the defense, you’re like very remote than never.
Mary McCord: Than zero chance.
Andrew Weissmann: Right.
Mary McCord: And, you know, we talked a few weeks ago about if this case were dismissed without prejudice, which it has been. Judge Chutkan, within I think an hour or two, I might be wrong on that because I was working, but I saw the news come in pretty quickly, granted the motion and ordered that it be dismissed without prejudice.
Andrew Weissmann: Mary, that must be because she had to snap a doodle.
Mary McCord: Yes, she was snap a doodling, yes. And I suspect she’s thinking, wow, this frees up my docket.
Andrew Weissmann: Exactly.
Mary McCord: Get out from behind all of this stuff that has been piling up while I’ve been dealing with this case. I mean, I’m sure that she has all kinds of interesting and mixed feelings about it, but this is a big, big case. And I’m sure for her, this does make her life significantly more reasonable in terms of her workload.
But what we talked about some time ago is that it’s possible that Donald Trump could then, once his Department of Justice after January 20th is sort of in charge, seek to have this actually dismissed with prejudice. But there is no case right now.
Andrew Weissmann: That’s hard.
Mary McCord: The case has been dismissed. It is not on the books. It is not on the docket. It is done, which means they would actually have to move to reopen a criminal case and then move to have it dismissed with prejudice.
And reopening at this point, it would be months later and that would be discretionary. And I could very readily see her saying no.
Andrew Weissmann: That’s why it seemed like a mistake to me, even though it’s unlikely to get re-prosecuted. This is one where the judges acted on essentially a motion by consent because they didn’t object to this. It got granted. Then they’d be coming back in two months and say, no, I want you to dismiss it with prejudice. And she could be like, no.
Mary McCord: You should have said that back then. I’m not going to reopen this case for you. That’s right.
Andrew Weissmann: Exactly. And the time period’s over. Now, what I think Jack Smith got out of doing this now, because some people might be saying, why did he file this motion now? Like, why not do it later? And also, why do it at all? Like, why not just wait and let the Trump administration handle what it’s going to do with this case?
And one thing that Jack Smith got out of this was.
Mary McCord: I have pretty strong feelings about this.
Andrew Weissmann: Yeah. So one thing he got was that he moved to dismiss this without prejudice. And it worked that it was without prejudice. And that way he was able to say, as he did in the filing, this has nothing to do with the merits of the case and our belief in the merits of the case. This is because we are at the Department of Justice. We are bound by the Office of Legal Counsel opinions and we followed them. And so he got to really have it resolved and dealt with on his terms. And for sort of historical purposes, it does preserve the ability potentially to go forward later. But it also is the Department of Justice talking about its view of the case. So those are all sort of reasons to do it.
Mary McCord: Can I just say something about this? I’ve seen various headlines Jack Smith folded. I mean, that is completely wrong. What Jack Smith did, and I’ve seen indications he folded and that shows this was a political prosecution. It is the absolute reverse of this. He actually adhered to the rule of law because he followed the guidance of the Office of Legal Counsel, binding guidance as opposed to trying to buck it, trying to pretend like it didn’t exist. Like somehow he was freed from having to comply with that. He followed the law. He moved to dismiss the case because he had to. So to me, it shows just how unpolitical the prosecution was because he is adhering to the rule of law.
So this notion of folding is just wrong and bonkers. And I know people are going to say what people are going to say, but I think that what he did was the honorable thing. It’s what I think we would want our Department of Justice officials to do, which is follow the established guidance and the solid constitutional arguments.
Andrew Weissmann: Yeah, it’s so funny because I didn’t even go there in my head because it’s just so it’s an insane view of this. I mean, it is literally doing this because of the OLC opinions. But I do think there’s a separate issue, which is that the OLC opinions don’t actually dictate as to when you would file that motion. So one of the things that Jack Smith could have done is he could have said, yeah, there’s an OLC opinion out there and the next administration on January 20th can move to dismiss the case.
But if he had done that, in other words, if he had said, I’m going to leave it to the next administration to follow the OLC opinions —
Mary McCord: It would have been with prejudice.
Andrew Weissmann: It would have been with prejudice, exactly. And so —
Mary McCord: it was strategic as well as, you know, lawful.
Andrew Weissmann: Exactly. He got something out of doing it now. But, Mary, your point is either way, it had to be dismissed. I mean, there’s just no question that that was going to happen. So the idea that he folded in this, if you’re even going to use that term, I just would say he just complied with the Department of Justice policy, which is respecting the role of the presidency.
Mary McCord: Right. OK. I know we need to go to break, but I want to throw something out there and we will talk about it on another day, which is one possible reason why Donald Trump’s attorneys did not object is they may think that Donald Trump is planning to pardon himself.
And so we will leave for another day whether it is possible for a president to pardon himself. There is also an OLC opinion from three days before Nixon resigned in 1974 that says a president cannot pardon himself. Now, whether we think that Donald Trump cares about that OLC opinion or would just simply ask for a different one is a whole another topic for a whole another day. I think it’s very interesting arguments about this, and I think we should come back to it in another episode.
Andrew Weissmann: Absolutely. And because of the open issue about whether a president can pardon himself, it still doesn’t explain why you wouldn’t have said I want it dismissed with prejudice because, you know what, belt and suspenders, folks. Should we take a break?
Mary McCord: Yes.
And we’ll come back and talk about Judge Merchan.
Andrew Weissmann: Exactly. Although, you know what we didn’t talk about? The motion that was made by Jack Smith in Florida. And then we’ll talk about Judge Merchan. So we are. Wait. So, Mary, we are very undisciplined.
Mary McCord: We are.
Andrew Weissmann: And we need to. Okay. Then our producers nodding her head vociferously up and down. So, Mary, let’s take a break. Get our act together.
Mary McCord: Okay. Let’s get our act together. Okay. Okay.
(BREAK)
Andrew Weissmann: Welcome back. Mary, we’ve spent a lot of time talking about the filing yesterday that was made by Jack Smith in D.C., but he also made a filing in the 11th Circuit where there is an appeal pending, a government appeal, seeking to have Judge Cannon’s decision reversed, where she said that Jack Smith was not properly appointed. People will remember that as the outlier case. That is the one judge who has said that. Every other judge who has had that issue, no matter what president has appointed, that judge has said that it is proper and constitutional and within the statutory authority of the attorney general to appoint a special counsel, including in the circumstances in which Jack Smith was appointed.
So that is an appeal that’s pending before the 11th Circuit. And remember that there are three defendants that were indicted in that case. And so there are three defendants on that appeal. It’s Donald Trump and two co-defendants.
So, Mary, what did Jack Smith ask the 11th Circuit to do? What’s their request there?
Mary McCord: Yeah. And Jack Smith’s brief would have been due on December 2nd. So his reply brief, you know, it was Jack Smith’s appeal of the dismissal. And that brief now will not be due, at least with respect to Donald Trump. So this was a much shorter motion. It refers directly to the motion filed in the January 6th case in Washington, D.C. and essentially says for the same reasons that were set forth in our motion to dismiss in that case, the U.S. here, through Jack Smith and pursuant to the appellate rules, moves to dismiss the appeal in this case, the Mar-a-Lago case, as to defendant Trump.
Now, what that then says is dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him. Right? So case remains dismissed as to him, again, without prejudice, because that’s what Judge Cannon did. But then it goes on to say the appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them. Again, it ends with the government is consulted with counsel for defendant Trump, who does not object to this motion.
So right there, Jack Smith saying we have these other two defendants. They are not going to be sitting presidents. There’s nothing about OLC binding guidance that requires us to dismiss the appeal as to them. And so this appeal will remain. Now, they will probably come in and make arguments about why it should be dismissed, but it’s currently being briefed in the 11th Circuit. And so they will have to deal with that there.
And as we said before, it is certainly possible, maybe likely, probably likely, most likely.
Andrew Weissmann: Certainly likely.
Mary McCord: Yeah, certainly likely that Donald Trump’s Department of Justice, after his inauguration, will move to dismiss that appeal. But that is something that Jack Smith’s not required to do by Office of Legal Counsel Guidance. And so he is not doing it.
Andrew Weissmann: Yeah, and actually this is one where the department has an interest in having this question. Exactly, because you’ve got this outlier opinion. And so they could want to really see this getting reversed to say it was wrong in a whole variety of ways. Or if for some reason she’s right, they’d want it resolved so that this special counsel rules can be sort of revised and they can be applied properly going forward.
I personally think that what’s going to happen is that the two remaining defendants, not only can Donald Trump just tell his Department of Justice to stop that prosecution, which would moot out the appeal.
Mary McCord: Pardon them.
Andrew Weissmann: And he could also pardon them, exactly. So, and I think he might on that one do a belt and suspenders. But that’s one where there will, I think, if it’s going to be motion to dismiss, it could be sort of the Department of Justice and the defense seek to have it dismissed with prejudice. And he could then pardon them, which would definitely be belts and suspenders. Because if you move to dismiss with prejudice, double jeopardy attaches, you cannot be charged again for that crime, at least federally.
And so you could have both of those. And so this appeal, I think, is going, even though the Department of Justice, you would think even in a future administration would have an interest in it going forward. I just don’t think this is going to be the vehicle that a Trump administration is going to want to use to get that answer.
And so I think the Judge Cannon decision will just sort of be out there.
Mary McCord: And to that point, this is a single district court opinion, which is binding on exactly no one. No other judge.
Andrew Weissmann: Yes. I clicked for a district judge.
Mary McCord: I did too. I have huge respect, but it’s only binding on themselves. My judge used to say that. He used to say, like, you know, he would only write when it was a novel issue because he’s like, otherwise he’s like, I’m writing for my vanity. It’s like, you know, no one else needs to read this or needs to care.
Mary McCord: I mean, it can be persuasive authority. Exactly. And judges do respect each other’s opinions and they might say, oh, because my fellow judge so and so within my district ruled X, Y, Z. And I find that persuasive. I’m going to rule that way, too. But they can also say, I don’t find that persuasive. I totally disagree. I’m not ruling that way.
Andrew Weissmann: Yeah, I disagree with Judge McCord. I’m going to do what I want.
Mary McCord: Right. Yeah. So Judge Cannon’s ruling. No other district court judge and certainly no appellate judge is bound to follow it. I mean, I certainly know there are times when I was still in the government, when my view was, you know, that decision, it’s not well reasoned. It’s not persuasive. I’m not worried about it going forward. And we do on the appointments clause issue have an opinion from the D.C. Circuit. So there is an appellate opinion on this that already says that, you know, appointments of special counsel are valid and don’t violate the appointments clause.
So anyway, I think it’s a small issue for DOJ and I wouldn’t be too worried about it. But it will be more of, you know, another lack of accountability for the cases against Walt Nauta and Carlos de Oliveira to be dismissed if that’s what happens. And particularly if they’re pardoned.
Andrew Weissmann: Should we move up to New York?
Mary McCord: Yes, let’s move to New York. This is another area where I’ve been somewhat disappointed in at least some of the reporting out there, because, you know, the headlines that they came out were like, “Judge Merchan, you know, puts off the sentencing as though this was some sort of like decision he made out of the blue on his own.” The parties together agreed to that. I know.
Andrew Weissmann: I know. And so this is one where I actually, I thought that Alvin Bragg’s filing, I think, got it totally right. Where what happened was Donald Trump’s team apparently had conversations with Alvin Bragg.
Mary McCord: Sent him a letter.
Andrew Weissmann: Saying, “We want to make a motion that the case should be dismissed.” And the argument now is because it’s going to interfere with the president-elect’s transition process.
Mary McCord: As well as when he’s president, right? All of the same reasons in the OLC, right? Yeah. So the latter part was something that was looming, but now there’s sort of an immediacy to this because it’s interfering with that process. So there’s sort of this double-pronged approach. And Alvin Bragg wrote to the court saying, “Here’s our position. Donald Trump wants to make this motion. We think you should hear the motion. We think that during the pendency of that motion, which should be briefed very, very quickly, that there should be a stay.” Why? Because you would moot out the motion if you just went forward. Like he’s entitled to make a motion. It’s respecting the rule of law and the defense’s opportunity to be heard. Go ahead and hear it. We agree that there should be a stay, but we do want it heard quickly. And they said, “We are going to be objecting to it.”
In other words, it’s so respectful of the court process because it’s saying, “You know what? We are not going to presume that you’re going to rule in our favor. We’re not going to presume this is a bogus issue. It should be heard. That’s what the courts are for. But we want to telegraph to you and to the public that we don’t agree with this.” This is one where it’s a state case that has gone to trial, where the respect for the rule of law is not that the case goes away. But here there’s a jury verdict. And so you don’t have to dismiss the case. Maybe you’re going to put the case on hold and there won’t be a sentencing for four years. But this is a very, very different situation than the D.C. case that we opened with, where the case has not gone to trial, where there’s a binding OLC opinion.
Mary McCord: That’s right.
Andrew Weissmann: This is one where there has actually been a trial. There’s been a verdict and the only thing that remains is sentencing. And so you can see the prosecutors there saying, there’s no reason for when you’re thinking about the temporary immunity at issue here, that that means that there can’t ever be this case. Nor should you just dismiss the case entirely and disrespect the entire trial process and the jury’s determination. And I’m just going to get on my high horse for a moment. I think there’s an elitist view about juries that really needs to be undermined in terms of like a jury. There’s 12 people who have made a decision. I know I’ve been on a jury.
Mary McCord: Chosen by both parties.
Andrew Weissmann: Exactly.
Mary McCord: Both parties’ attorneys get a chance to strike the people that they don’t want on that jury.
Andrew Weissmann: Exactly. And so that idea of respect for a jury outcome, I mean, that’s one that should and is in the law something that is fundamental. And it is the community’s assessment of what happened at a very, very high standard, which is beyond a reasonable doubt the highest standard that the law has, period, not just the criminal law. And it has to be decided unanimously.
And so that is going to be the state’s argument, which is essentially it is fine, I think it’s going to be fine for them to say, “You know what? Hold off the sentencing.” But the specter of that sentencing, that’s something that the president caused before he was president based on his actions. And it’s not something that you have to speculate about. There was a trial on that where he had every single right that every defendant has to present a case and to challenge the evidence, and he lost. And so whatever consequences there are for while he is president, that’s just part of life. Or as they used to say, “If you can’t do the time, don’t do the crime.”
Mary McCord: Oh, yes. Love that oldie but goodie, right?
So where that leaves us is, you know, what had been pending in front of Judge Merchan was whether the jury’s verdict should be vacated because of the immunity decision coming out of the Supreme Court this summer, and whether, as we’ve spoken about before, whether any evidence that was introduced at the trial on which the jury rendered its verdict was official acts evidence that should not have been introduced at trial under that decision. That’s a motion that is pending that has now just been stayed. The decision on that motion has just been stayed in order for the judge first to get briefing on the motion to dismiss that you just were talking about, Andrew, and make a ruling on that.
Similarly, he stayed the sentencing while he’s deciding all of this. And then we’ll have to come back to the question of if he does not dismiss everything outright, the question of what does he do with sentencing? Does he do it now? Does he stay it for four years? What does he do with it? And one of the things that I think is a little bit interesting about this, because you mentioned rightly that Donald Trump’s team in their correspondence with Alvin Bragg and also with the judge made it clear they want to file this motion to dismiss. They think it should apply not only while Trump is president, but during the presidential transition period. So it needs to be immediate. Yet they ask for a briefing schedule where their opening motion to dismiss wouldn’t be due, as I recall, for several more weeks.
And instead, the judge said, I’m granting this motion for a briefing schedule. Defendant Donald Trump, your motion’s due by the close of business on Monday, December 2nd. Alvin Bragg, your response is due the next Monday, December 9th. No reply briefs may be filed. I’ll then issue a ruling after that.
So that was the schedule proposed, I will say, by Alvin Bragg. And honestly, you would think if Donald Trump thinks this needs to be done immediate, he would have also proposed, you know, a quick schedule like that. So that is where we stand, which means next week when we do the podcast, we will be able to talk all about whatever Donald Trump says in the motion that he files on December 2nd.
Andrew Weissmann: And they seem to, it’s so great because they seem to have the schedule. I think it’s wonderful that they’re clearly following up on “Prosecuting Donald Trump.” The podcast is now coordinated with the prosecuting Donald Trump Manhattan case in terms of just fortuitously that, you know, you have the 2nd and the 9th.
Mary McCord: Perfect. Thank you, Judge Merchan.
Andrew Weissmann: So, Mary, should we take another break and come back and talk about the Department of Justice and sort of what’s going on there? And there’s obviously been a lot of talk about, we’ve had one proposed nominee, we have another proposed nominee after the first one fizzled. This is like Yogi Berra deja vu all over again. Which is, I mean, we had four years of like, I only point the best people and then I fire just the best people. So this is like failure to launch in terms of Matt Gaetz. But I have to say, just my one quick thought on this is Donald Trump’s sort of a master of flooding the zone and then you forget that. So like the Matt Gaetz thing, like he knows to quickly moves o from the bad news and then there’s so much of it that you sort of forget the Matt Gaetz fiasco. But any event, how about we take a break and we come back and talk a little bit about the sort of those DOJ issues that are coming up?
Mary McCord: Yes, let’s do it.
(BREAK)
Mary McCord: Welcome back. As promised, we are going to shift gears now to the incoming DOJ. Again, we’ll not be incoming until after inauguration, January 20th. But unlike other recent presidents elect, Donald Trump, as you said, has been flooding the zone and we have learned so much about it. Almost all of his major top appointments or prospective appointments, you know, within just the first couple of weeks after the election, which is really unusual and particularly unusual for Donald Trump. As you may recall, the first time around, it took sort of forever to get some of the names out there. And he’s learned. He’s definitely learned. So definitely learned.
Andrew Weissmann: We’re going to, sort of have gone quickly in terms of the appointment, which frankly, people are probably reacting and he’s learned. He’s definitely learned. So, you know, we’re going to, I think, have sort of like gone quickly in terms of the appointments, which, you know, frankly, is a perfectly, you know, if people are probably reacting because of the choices. But in terms of the process, you know, having a fast process is useful. Having that time period of interims and actings and waiting isn’t really great. I mean, you and I both have lived through many, many transitions at the department, and it’s useful to have the official people there and whatever the policies are, the elections have consequences and it goes forward.
So I really don’t begrudge the process at all.
Mary McCord: Yeah, but, you know, with all of that news has come other news, including reporting by The Washington Post last week that Donald Trump plans to fire the entire Jack Smith team that worked on the pursuit of both of these federal prosecutions, the January 6th case and the Mar-a-Lago case. And so there’s a lot of questions raised by that, including the fact that these are career attorneys, most of whom before they were detailed to Jack Smith’s team after he was appointed as special counsel, were attorneys either at the U.S. Attorney’s Office in D.C., at a different U.S. Attorney’s Office or at Maine Justice in different divisions there, criminal, civil rights.
Andrew Weissmann: And Maine Justice is the term for what we —
Mary McCord: The department.
Andrew Weissmann: The building.
Mary McCord: The headquarters.
Andrew Weissmann: Headquarters. Yes, exactly. The headquarters, the building with its limestone facade. The building I worked in, you worked in. Exactly. You know, I’m trying to think, I don’t think I actually ever worked in that building, even though —
Mary McCord: Oh, even when you were assigned to Maine? Yeah. I did, because National Security Division was in that building.
Andrew Weissmann: So I was at the FBI, which is right across the street. We used to call it sneaker communication’s because it was like, calls are running back and forth. But anyway, Maine Justice is the headquarters.
Mary McCord: Anyway, okay so this raises various issues. These are career people who do have civil service protections. Now, listeners may say, “Hey, I thought Donald Trump, his first time around, got rid of all those civil service protections.” He attempted to do something called Schedule F, creating a new sort of schedule for civil service employees that would strip them of many of their protections and make them fireable, even for political reasons, and replaced essentially by people who would all be fireable for political reasons. So, in other words, this was a way to kind of try to get out the career people and get loyalists.
That Schedule F was never implemented. After Joe Biden was elected, his administration went through an entire rulemaking process, which is the way that regulations actually get enacted through a rulemaking process that’s required by law, by a statute called the Administrative Procedures Act. They went through a rulemaking process to actually create rules for the protection of civil service workers, including attorneys at the Department of Justice.
So to change that and strip all of those protections would require undoing that rule, which also requires a rulemaking process. That process includes notice and comment and, you know, basing decisions on those comments and on a rational basis and not being arbitrary and capricious and not being contrary to law. And I’m throwing those terms out because those are terms that are required. Those are basically requirements. And a rule can be challenged if it is arbitrary and capricious. It can be challenged if it’s contrary to law.
And in fact, during the first Trump administration, there were many challenges to things that his agencies did. And some of those my organization challenged successfully because some of the rules were arbitrary and capricious or contrary to law.
Andrew Weissmann: And for certain employees, I mean, the department can’t, you can’t have a boss that just says, you know what, I don’t like you or I don’t like your politics and you’re fired. You can do that. The employee then is going to have a successful appeal.
Mary McCord: That’s right.
Andrew Weissman: And they will get reinstated and they can get back pay and all sorts of to compensate them for that, for what happened. An example of that is that Andy McCabe, who was the acting head of the FBI after Jim Comey was fired by Donald Trump. Andy McCabe was a career FBI agent. He was not a presidential appointee. He was as career as anybody had been in the Department of Justice. People should remember the FBI is a component of the Department of Justice. So he’s a Department of Justice employee. Although a lot of times when we’re first to the FBI, you say the FBI and DOJ. But lots of people do that.
I used to say the FBI thinks of itself as an autonomous component, which is like oxymoron.
Mary McCord: Kind of what some kids think of their relationship with their parents, by the way.
Andrew Weissmann: Yeah. I can’t wait to talk to your kids about that. Of course not. So Andy McCabe was fired and he brought a suit and he won. And there are lots of employees who could, in this situation, the department would have to say what’s their basis for cause as to why you are doing that.
Mary McCord: Right. And just to that point, I don’t want listeners to think you can never fire a Department of Justice attorney. Yes, you can. Or other employees. Yes, you can. But there needs to be a basis. There needs to be cause. And it can’t be political reasons.
Andrew Weissmann: Exactly. And so obviously if you have an employee who’s not working out and doing their job, there’s a whole process. I mean, you and I both have been supervisors there, and this is true in the private sector as well, where you do incremental steps.
Mary McCord: You give them notice.
Andrew Weissmann: Exactly, and you so all of this things, and the rare case where you then actually need to get to point where you would fire them but you would document and talk to them, and the whole goal of the remediation is to try and give them guidance so the employee has benchmarks that they can meet to try and show that they can do the job. But what you can’t do is just be like, “You’re a Democrat and you’re fired.”
Mary McCord: That’s right.
Andrew Weissmann: Or, “I don’t like you.”
Mary McCord: Or, “You were on the team that prosecuted me and you’re fired.”
Andrew Weissmann: Right. And it’s useful to remember on the sort of Trump claim that he’s going to fire all of Jack Smith and his team, obviously they’d have to still be there to be fired. But if they were to do that, it would raise all of these issues. And one of the things that Jack Smith and his team could raise is, if you remember, there were motions by some of the defendants for prosecutorial misconduct and selective prosecution claims. And not only were those rejected by Judge Chutkan, but even Judge Cannon with respect to Walt Nauta’s claim. She never reached the issue with respect to anything Donald Trump. But even she has rejected that saying that there’s no basis for that. And of course there isn’t. And of course these are cases where grand juries have found probable cause for bringing these charges. That doesn’t mean that necessarily there was no prosecutorial misconduct, but let’s just say there’s nothing in the record to support any such claim.
Mary McCord: Yes, there’s no evidence. That’s right.
Andrew Weissmann: And so that’s the kind of thing that, you know, it’ll be interesting to see the incoming folks to the department, whether it’s in a presidential appointments or lower level, how they deal with this. Because they may get pressure from people in the White House to say, “I want you to just fire them.” And then you have to litigate it. But if you’re at the department, your job is to adhere to the rule of law. You take an oath of office to that.
And so before you take action like that, you have to have a good faith factual basis in the law and facts to support it. So that could be one of the first tests of that incoming group of people as to what they’re going to do here.
Mary McCord: That’s what I think is very interesting about the current names that have been proposed for the leadership there. Because including Pam Bondi, they are actually all people who do have experience as prosecutors. She was the attorney general for two terms in Florida. Todd Blanche, who’s been nominated to be the deputy attorney general, was a federal prosecutor. That is also an appointment that requires Senate confirmation.
The principal associate deputy attorney general does not. But that person who Donald Trump has named as Emil Bove, also federal prosecutor, prosecutorial experience in New York. And then the names incoming solicitor general, John Sauer, was a solicitor general in Missouri. And of course, is the person who successfully argued the immunity case in the Supreme Court. So these are all people, unlike Matt Gaetz, who had no experience ever at a state or federal Department of Justice, government agency.
Andrew Weissmann: Other than as the target of investigation.
Mary McCord: That’s right. Other than as a defendant.
Andrew Weissmann: Potential defendant.
Mary McCord: Potential defendant. Not actually ever charged, of course. And also barely ever even practiced law. I mean, a couple of years straight out of law school before he went into politics. So really no practical legal experience at all.
So I think that notwithstanding whatever Trump or folks in the White House or his spokespersons are telling The Washington Post about firing, these are real attorneys. We may just, you know, have different opinions about how good they are. And I think I would put Pam Bondi in a different category than the other three. What’s interesting about those three is, of course, those were all Donald Trump’s personal defense attorneys. And their obligation at the time they were defending him was to him, their obligation if they are confirmed, those who need to be confirmed, and whether they’re confirmed or not, their obligation when they come into those offices, they will take an oath. And that oath is not to Donald Trump. That oath is to the Constitution.
So they will have a different client, a different obligation, and I think may hopefully will understand this is not about personal defense or personal prosecution by Donald Trump.
Pam Bondi, of course, was one of Donald Trump’s attorneys in the first impeachment. So she also had sort of that personal client relationship. And so will also again, her oath will be to the Constitution if she’s confirmed, not to Donald Trump. So I put them in a different category because she has said that, you know, the prosecutors and the investigators that led to the federal prosecutions under Jack Smith, she has made some comments about that. I don’t know how serious those comments were, whereas the other three I don’t think have said anything like that.
Andrew Weissmann: Yeah. And even she, at least in the clip I saw, said we prosecute the bad ones.
Mary McCord: The bad ones. Yeah.
Whatever that means.
Andrew Weissmann^ And there was some hedging that, at least to me, that showed that she understands that you can’t just have a broad brush of, oh, everyone who’s involved in the prosecution. Whereas, so that it gave her some wiggle room.
But anyway, that is definitely, you know, we’ve talked about how the fact that we’re going to continue this podcast next year, more to come on that. But that is going to be one of the things that we really keep an eye out for is how much those people will adhere to their oaths of office and what their arguments will be if they are taking positions that we think are somewhat in tension with that and acting more as personal counsel than as department counsel where your obligation is to the public.
So there’s so much more to come.
Mary McCord: Much more to come.
Andrew Weissmann: Next week, obviously, we’re going to very much be focusing on Judge Merchan, the one case that came to fruition and had a trial, but we now, there’s still the sentencing and litigation pending. We will definitely address that.
In the meantime, Mary, and to all of our listeners, have a wonderful, wonderful Thanksgiving. This is a time to take solace and joy with family and friends at a really wonderful time of year and to try and gain strength and comfort from the time we all have together.
So, Mary, have a great Thanksgiving with your family.
Mary McCord: Happy Thanksgiving, everyone.
Andrew Weissmann: Thanks for listening. And remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad-free.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.