As a level set for post-election litigation, MSNBC legal analysts Mary McCord and Andrew Weissmann look at two cases in Pennsylvania and Virginia that have already made their way through the courts involving naked ballots and purging alleged noncitizens from voter rolls. Then, newly unsealed court documents in the DC case show long-held concerns from judges around former President Trump’s efforts to delay. And Andrew and Mary close with the latest from Florida: the 11th Circuit appeal of the dismissal of the Florida documents case is moving along and Judge Cannon doesn’t think her recusal is necessary in the case involving the second assassination attempt of the former president.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome to Prosecuting Donald Trump. It is Monday morning, November 4th. I’m Andrew Weissmanm, and I’m here with Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. I feel a little like butterflies in my stomach. It’s a momentous week for everyone, I can’t imagine there’s anyone in this country who does not realize tomorrow is election day. But if you have not voted yet, please, please, please, this is not only a responsibility, but it’s an opportunity. It is your chance to participate in our democratic republic and register your vote, not only for president and vice president, but for your members of Congress in your state, your local officials. And it’s really something that we are honored to be able to have the opportunity to do in this country. And I hope everyone will take advantage of that.
Andrew Weissmann: Amen. Mary, I am more nervous, as a friend of mine from Georgia says, I’m more nervous than a long-tailed cat in a room full of walking chairs.
Mary McCord: I love that. I love that metaphor. It’s just — I can picture it.
Andrew Weissmann: Exactly.
Mary McCord: A very long-tailed cat. Like a Dr. Seuss-type kind of long-tailed cat.
Andrew Weissmann: Yeah, and a lot of rocking chairs.
Mary McCord: And a lot of rocking chairs. But you know what? One way to deal with that is you can vote, and you can make sure that people who are friends and acquaintances and loved ones are voting, too. It’s an honor and privilege that we have in this country. And if you don’t vote, you can’t complain.
Mary McCord: That’s right. And amazing, I think this is the most early voting we’ve ever seen by Democrats and Republicans. Seventy-five million is the last tally I saw. Maybe it’s probably higher than that even by now.
Andrew Weissmann: And we’re going to talk about elections, and we’re going to talk about the legal things that are going on with respect to the vote. But it’s really useful in connection with what you just said, Mary, to remember that, except for very small incidents, that this has all been safe and sound and secure.
Mary McCord: Yeah. And actually, that leads directly into sort of the things we’re going to talk about today.
Andrew Weissmann: Exactly. But Mary, can I just make one other comment, which is I know you want to thank our listeners because there was an award that was given out by Signal, and our listeners voted. And there were a whole bunch of wonderful other podcasts. But we won the listeners’ choice award. And so thank you, thank you, thank you to very, very loyal listeners. And as much as you hopefully appreciate what we’re doing, you should know Mary and I really appreciate you all and really love the commentary and feedback we get and the really terrific questions. And both of us are teachers in our day jobs. And so this is an aspect of that that’s really fun and terrific and rewarding. So thank you very much.
Mary McCord: Yes, absolutely. And whether we actually say we’re answering a question from John in wherever, we oftentimes take the questions and incorporate them into what we cover anyway, whether we specifically call out the listener or not. So keep them coming.
Andrew Weissmann: So Mary, what’s on our dance card?
Mary McCord: Yes, so we are going to start out today really talking about a couple of the pre-election challenges. There’s been scores of them. We cannot cover them all. But we can cover the two that recently did make it to the Supreme Court, the US Supreme Court, which issued rulings in both of those cases late last week. Then we’ll move to some things related, of course, to the Trump cases. Some listeners will recall that it made some news last week that documents from the grand jury period of time where the grand jury was considering whether to return an indictment regarding the January 6th attack on the Capitol and the efforts to overturn the results of the 2020 election, there were a lot of proceedings before that grand jury. And heavily redacted documents were released. But they’re interesting in a couple of ways that we’ll talk about.
Andrew Weissmann: Absolutely.
Mary McCord: And then we’ll finally just kind of wrap up with some updates on other cases, the 11th Circuit briefing on Judge Cannon’s dismissal of the Mar-a-Lago case based on alleged violation of the Appointments Clause and also her decision not to recuse from the case in which Ryan Ruth is being prosecuted for his attempted assassination. We’ll talk a little bit about her decision there when she was asked to recuse from that.
So let’s start off, though, with some of the pre-election litigation, which, again, there’s been so, so much, but two cases I think are really worth focusing on.
Andrew Weissmann: There’s sort of good news, bad news.
Mary McCord: That’s right.
Andrew Weissmann: Which do you want to start with?
Mary McCord: Gosh, you know, our producer’s mouthing something to us. Okay, bad news. She says start with the bad news.
Andrew Weissmann: We’re supposed to start with the bad news?
Mary McCord: Yeah, then the good news, right? So it was like two cases that hit the Supreme Court. And the Supreme Court did what, in my view, was the right thing in one and what, in my view, was the wrong thing in the other.
Andrew Weissmann: Guess what, Mary? Shocker. Do you agree with me? I agree with you. I do. Okay, the first decision we’re going to talk about comes out of Virginia. And there, it’s sort of an interesting scheme that the governor put in place. And I’m going to sort of paraphrase from the government’s brief here, because this was a case where the Department of Justice had actually brought litigation to say that the state was violating the so-called quiet period rule, which is created by federal statute.
And to put the government’s position in perspective, what they said is everybody agrees that non-citizens should not be voting and that states have a legitimate interest in making sure that people who are not eligible to vote are not voting. The issue is sort of exactly how and when they can do it. And the quiet period has to do with the idea that 90 days before an election, that there is a quiet period where essentially, systematic processes can’t be used. Individualized determinations can be made. Of course. Gross databases can’t be used. Why? Because there are errors in that. And the right to vote is so sacrosanct that if you were to do this instead of using a scalpel, if you were to use a sledgehammer during that 90-day period, people who actually are eligible will get caught up in that system and will be disenfranchised because the risk is too great.
So essentially, the DOJ was saying, we have no problem in general. But during this time period, you can’t do what the governor did here.
Mary McCord: Can we talk about what the governor did? Yeah, because I think we got a little bit ahead.
Andrew Weissmann: So what was at stake here?
Mary McCord: Yeah, and this is not new. It’s just the timing of this was bad. So under Virginia law and procedure, there’s been a process by which the DMV, the Department of Motor Vehicles, does transfer over data because people are allowed to register to vote when they go and get their driver’s license, a pretty common thing across a number of the states. They send over any kind of files. And normally, it’s just within the last year where a voter indicates either they’re a citizen or not a citizen, just so that the voting rolls can compare those responses to actually registered voters and then look into whether there’s any anomalies there. In other words, whether anybody who either marked non-citizen or didn’t mark citizen or non-citizen at all, whether any of those people show up as registered voters.
And so in a normal period, they could then call those, say, oh, it looks like maybe you might not be a citizen. We’ll send you a notice. And then you can come and respond and let us know, oh, yes, I am a citizen. Here’s my proof of citizenship and not be removed from the rolls or be put back on the rolls, right, if you’ve been removed. And that can happen systematically, normally, because then there’d be plenty of time for the voter to go and get themselves reinstated.
But that quiet period, and it’s like you said, it’s not just a made-up thing. It’s a statute, a federal statute, the National Voter Registration Act of 1993 that says any program, the purpose of which is to systematically remove the names of ineligible voters, must be complete by not later than 90 days prior to the date of the primary or the general election, right? And that’s because in those 90 days, there might not be time for that voter to get the notice and cure whatever the issue is. And remember, there could be all kinds of reasons. And in fact, the evidence in this case showed that there were plenty of people who were citizens and had voted for years who were going to be called by Governor Youngkin’s decision on the 90th day. Let’s be clear, he did it on the 90th day, which is prohibited to say, keep doing this systematic, and not just the data for the last year, but the data going back further than the last year.
So there are people who may have gotten their driver’s license three or four or five years ago, maybe were a non-citizen at the time. Check that on their DMV license application, since became a naturalized citizen, since then registered to vote. And they got kicked off. There were even people, US-born citizens, who were swept up in this culling. And that was the evidence put on.
Andrew Weissmann: And this is the district judge. Just to be clear, the federal district judge who heard this made that finding.
Mary McCord: Exactly.
Andrew Weissmann: Exactly what the concern was, that a congressional statute, this is what Congress had acted. This is not the courts acting unilaterally. This is Congress that said, here’s the concern, and here’s the concern about the right to vote. And the district judge said, this exact concern that you are raising about what could happen, happened. This is indeed what happened.
Mary McCord: I mean, even Youngkin’s team didn’t try to argue against that. It was conceded.
Andrew Weissmann: So she issues the judge, district judge, issues an injunction. It goes up to the Fourth Circuit.
Mary McCord: Injunction, just to be clear, we’ve used this term many times, means stop. Stop. You’ve got to stop. You can’t keep doing this. Because it was involving 1,600 people, right, being involved here. Yeah.
Andrew Weissmann: So she says stop. They get appealed. Everyone has a right to appeal. It gets appealed. The Fourth Circuit says, we agree. This is what goes to the Supreme Court. There’s a congressional statute in place. There’s this record from the district judge and the Court of Appeals. And Mary, what does the Supreme Court do? And what’s the vote?
Mary McCord: They decided to stay that decision. Remember, there’s another term we use, stay the injunction, meaning there’s no injunction. We have stayed it. We have paused it. We’ve put it on pause. They stayed it pending the disposition of the appeal in the U.S. Court of Appeals for the Fourth Circuit. Because what the Fourth Circuit has said is, we’re not going to issue a stay because we generally agree. But they didn’t have a full, lengthy briefing and argument on the merits, right? So they said, we’re not going to issue a stay.
Supreme Court said, we are going to issue that stay. We’re going to stay everything pending the disposition of the appeal in the Fourth Circuit and the disposition of a petition for a writ of certiorari if such writ is timely sought.
So this comes out last Wednesday, October 30th. Election Day is tomorrow, Tuesday, less than a week from that decision. There is no way for this to get through a full briefing, argument, ruling by the Fourth Circuit, petition for cert up to the Supreme Court and a ruling on that by election day. So effectively, that meant that injunction is gone. And, Governor Youngkin, you can keep doing this.
Andrew Weissmann: It’s so unbelievable because this is the Supreme Court really not obeying a congressional statute on this issue and really disrespecting what the Supreme Court has previously said is the fundamental right to vote that carries with it all sorts of presumptions, all sorts of restrictions on what people can do to burden that. So this is really a surprising and really terrible decision. It is six to three.
Mary McCord: Well, hang on. We’re calling it a decision, but it’s really not, right? I mean, it is the effective decision, but there is no opinion. There was just a summary order.
Andrew Weissmann: It’s a ruling.
Mary McCord: It’s a ruling, it is. I just didn’t want people to think there’s an opinion because we don’t have any idea what they were thinking, what their rationale is, why they were rejecting, at least for purposes of stay, rejecting what the Fourth Circuit and the lower court said. And you say six to three, but technically we don’t know that. What we know is that three judges would have denied the application for the stay. Justices, Justice Sotomayor, Kagan, and Jackson would have denied it. Technically, that doesn’t actually tell us it’s 6 to 3, but it sounds pretty much like 6 to 3.
Andrew Weissmann: Okay, I’ll take that.
Mary McCord: Yeah. I have one good news about that. The one good news about that is there is same day registration in Virginia. So if you did get notice or you are concerned, right, that you were removed from the roles under this, you can still go and you know that you’re eligible, you are a US citizen, you can go and register tomorrow on Election Day and vote. And that’s the main thing that I think people need to know because it is putting the onus on the voter. But it is relief that’s able to be had.
Andrew Weissmann: So Mary, that’s a really good segue to the good news. So why don’t we take a quick break and come back and we’ll give people some good news as to a decision by the Supreme Court.
Mary McCord: Perfect, stick around everybody for the good news.
(Break)
Andrew Weissmann: So Mary, let’s get finally to some good news. What’s the issue here? What was Pennsylvania dealing with? What was being challenged?
Mary McCord: So in Pennsylvania, the mail-in ballot system is kind of a complicated, in my opinion, ridiculously complicated system by which people have to put their ballots inside a secrecy envelope and then put the secrecy envelope inside a bigger outer envelope. And sometimes people forget to put their ballot in the secrecy envelope. And you know, things happen, people are busy, they think it’s a simple process. Whatever the reason, there are a lot of people, apparently, who forget to put their ballot inside the secrecy envelope. So then their ballots are just there inside the outer envelope.
Those are disqualified under Pennsylvania law. And so this case is not about whether they should be disqualified or not be disqualified. This case is about a lower court, actually back at the time of the primary, that said, well, based on litigation there, those people whose ballots were disqualified should still be able to file a provisional ballot because their ballot was disqualified. That means they’re not getting a chance to vote. So they should be able to get a provisional ballot and those ballots would be counted unless there’s some valid challenge to those ballots, right?
Andrew Weissmann: Right, for instance, they could, they tried this way, it was discounted, they want to show up on essentially primary day or Election Day and vote. They still haven’t voted.
Mary McCord: They haven’t voted yet, their vote didn’t count.
Andrew Weissmann: Right, so if you’re not going to count it one way, it doesn’t mean that if you make a mistake one way, the rule isn’t and now you can’t ever vote.
Mary McCord: That’s right, and that’s basically what the Pennsylvania Supreme Court said. That was challenged.
Andrew Weissmann: Exactly.
Mary McCord: They shouldn’t get to have a provisional vote and the Pennsylvania Supreme Court on a four to three decision said, well, under state law, state law says you can file a provisional ballot so long as you don’t have any other ballot that’s been accepted.
Andrew Weissmann: Counted.
Mary McCord: And if you’re, you know, fail what they call naked ballots because they’re not in the secrecy envelopes, you’ve probably heard that term used on the news, these naked ballots, if their naked ballots were thrown out, that means there was no other ballot counted. Under state law, they can use the provisional voting process. So that was then taken up to the Supreme Court and in this instance, the Supreme Court did rule in favor of allowing people to have their vote count.
In this decision, this is another one of these, as our friend Steve Vladeck likes to call, shadow docket cases because they’re early preliminary decisions made on applications for a stay. So just like in the Virginia case, the challengers went up to the Supreme Court, they didn’t like the ruling of the Pennsylvania Supreme Court, they went to the US Supreme Court and said, stay that ruling, pause that ruling so it won’t have an effect while we brief up the bigger issue. And these are the things where you don’t get full opinions, you don’t get full briefing, you don’t get full argument. We already said that in Virginia, all we got is granted but three would have denied. Here, what we get is we are denying the request for a stay, meaning Pennsylvania Supreme Court, you’re ruling stands. And then of course, we had a short two paragraph statement by Justice Alito with whom Justice Thomas and Justice Gorsuch joined respecting the denial of the stay.
And they didn’t say we’re disagreeing, but they really what they did was I think, try to tee up another challenge.
Andrew Weissmann: That’s exactly right.
Mary McCord: They said, this is a really narrow decision because where this case started was in one jurisdiction and it was brought by two voters whose ballots had been discarded and wanted to be able to provisionally vote. And it was at the time of the primaries. So what Justice Alito and the others said is that right now, there’s nothing we could do to really change this for all of Pennsylvania because this case is just about these two voters in the primaries. And we don’t have a jurisdiction here essentially to change things in a way that’s greater than that.
But then what they do that I think is more dangerous is suggest that the question of these provisional ballots might be something that could be challenged.
Andrew Weissmann: Exactly, and these are three justices. And I have to say, it is a continuation of sort of two trends, the Supreme Court really being activist and signaling that they are taking on even like the role of the executive branch in the case of the immunity decision. Here in the prior case, we were just talking about a congressional statute, taking that on and not respecting it. Here you have three justices signaling that essentially trying to, I think, really improperly disenfranchise people. The idea that, yes, of course you can’t vote twice, but it doesn’t mean those people who tried to vote once can’t vote at all.
Mary McCord: That’s right.
Andrew Weissmann: It is a real concern in terms of democracy and it’s a real concern in terms of the integrity of the Supreme Court in terms of how they’re doing this. And I have to say, just to your point, that these are decisions with no explanation does not help.
Mary McCord: No.
Andrew Weissmann: Because Mary, you and I could, if there was cogent reasoning, in the way that, frankly, we talked about Amy Coney Barrett’s concurrence in the immunity decision, if there was cogent reasoning, even if we didn’t agree with it, we might’ve done something different, at least that gives us somewhat thing to talk about why there still could be respect for the court and the respect for the justices.
And here, with these unexplained decisions, plural, it really leaves that cynicism to creep in, and in many ways, legitimately, especially if you have some justices who appear to be quite partisan.
Mary McCord: Yeah, and there’s some other really interesting things about this too, coming into partisanship that have to do with a case from a couple of terms ago on the independent state legislature theory. And I think when you read the Pennsylvania Supreme Court decision with a concurring opinion and three dissenting opinions, it’s clear that the justices are thinking ahead about an argument that is being made that the court shouldn’t be able to go beyond what a statute says.
Now here, as we just indicated, the Supreme Court majority, Pennsylvania Supreme Court majority says, “Look, there’s a statute says you have to discard the ones without the naked ballot, there’s another statute says you get to provisionally vote unless you’ve had a ballot already counted.” That’s what the statute says.
Those arguing against that were saying, “You can’t let people provisionally vote in these circumstances unless the legislature has been very specific about it.” And what they’re trying to tee up is this idea that under the elections clause and the electors clause of the US Constitution, it’s the state legislature that has the final sort of say over the manner of doing elections in each state and in particularly the manner of choosing electors for president and that a state court can’t go so far a field of that, that it is essentially usurping the role of the state legislature.
And this all comes from a case called Moore v Harper a couple of terms ago, where the Supreme Court rejected the independent state legislature theory in a case there that had to do with partisan gerrymandering saying state courts still can, of course, rule on state law in applying whatever the legislature does with respect to the manner of conducting elections unless it goes sort of, you know, so far a field that the court would be exceeding the scope of judicial review and usurping the General Assembly’s power to regulate federal elections.
The concurring judge in the Pennsylvania Supreme Court case last week wrote separately to basically make the point that this is not what is happening here, right? This is clearly complying with state law, that’s all we’re doing. And really, I think trying to already anticipate and push back against arguments that may come later that this is that kind of exception that the US Supreme Court was suggesting might be reviewable back when it decided Moore v Harper.
That’s pretty hyper legal technical and we will have far more to say about that and dive into it if and when, if and when that comes, yes.
Andrew Weissmann: So why don’t we take another quick break and we’ll come back and talk about some developments in D.C. and in the Florida litigation, both at the appellate level and in the district court in the assassination attempt case.
Mary McCord: Sounds good.
(BREAK)
Welcome back. Well, as promised, we are going to kind of dive into something that happened at this point, I guess, late 2022, early 2023, and this involves the grand jury proceedings before the indictment of Donald Trump for basically trying to overturn the results of the 2020 election in Washington, D.C. So what was made public last week were a number of opinions by the chief judges on motions to compel testimony of witnesses who had been subpoenaed by Jack Smith to testify in the grand jury, and for whom Donald Trump and his lawyers had said, “No, you may not testify “because I’m asserting executive privilege.”
These are the kind of things that go in secret to the chief judge of the district court of the District of Columbia, so that they are not, you know, this is not something that anybody can go sit in the courtroom and listen to and watch and read the opinions.
So talk to us about that process, Andrew, and what happened there, and then we’ll get into those rulings a little bit.
Andrew Weissmann: Yeah, so the first is people might be going, “Why are we going backwards?” I mean, in terms of like, why are we covering these decisions that were written by Chief Judge Beryl Howell, “Chief Judge Boasberg in like ‘22 and ‘23? And the answer is because of litigation, this was just recently unsealed with redactions, and so we’re now looking at sort of what had happened.
Having read all this material, it’s also very normal for this to happen. In a long-term investigation, a long-term grand jury investigation, very often the government is trying to call witnesses, and the witnesses’ counsel, or people who are interested, raise issues. Attorney-client privilege issues, as you said, Mary, executive privilege issues, just various ways in which somebody will litigate, usually in very good faith, various issues, and it goes to, in D.C., it is the chief judge who hears all grand jury matters. Grand jury matters are secret, and so there can be litigation at the district court, there can even be litigation that goes up to the Court of Appeals. Again, it’s all sealed.
Mary McCord: And that happened here.
Andrew Weissmann: Yeah.
Mary McCord: That happened here.
Andrew Weissmann: So my reaction generally was like, this was sort of what I assumed was going on, that Donald Trump would make claims of executive privilege, and that the district judge would have to make decisions about it after hearing, just to be clear, after hearing from all sides today, and having briefs and oral argument, and then issuing rulings, and those rulings can be appealed by one side or the other, or both.
Mary McCord: And several were.
Andrew Weissmann: Exactly. So that’s sort of the frame.
Mary McCord: And also, can I just interject before we get to substance? Still, people might be going, “Why now?” And that’s because journalists at Politico, and probably others as well, had brought litigation seeking the release of these documents.
Andrew Weissmann: Yeah, which is also typical.
Mary McCord: Yes. That’s right.
Andrew Weissmann: And so that’s why a lot of these things are public now, but redacted, so that what you see is a lot of the legal decisions, you see the legal reasoning, but you don’t get a lot of the details about exactly who are the witnesses, and what- —
Mary McCord: Yeah, no names.
Andrew Weissmann: Actually, they would say, although some of the, you can sort of figure out some of it now, but what’s good is the legal issues are there, and I think it’s great that there’s more sunlight on this aspect. And so that’s why we have it. I should just say one thing about the process of litigating. Of course, the person who’s raising privileges may have, as part of their motive, that it slows things down. That’s not unheard of. If you are a target of a grand jury investigation that you want things slowed down, and you may also-
Mary McCord: It’s pretty typical.
Andrew Weissmann: Yeah, any day that you’re not under indictment is a good day, and also you might win. In other words, there might be, the judge might rule in your favor, and if there’s a 1% chance of that, a defense lawyer, if they think it’s a good argument, will make it.
So I think that’s all sort of understandable that that would go on. I also think Beryl Howell in particular, who I know, I know you know Judge Boasberg much better, but Beryl Howell was raised in the Eastern District of New York, and also having dealt with her during the Mueller investigation, grand jury matters, she hears in an incredibly expedited way because there is really good law up to and including the Supreme Court that grand jury matters need to be decided expeditiously so that criminal investigations are not delayed, and that seems to be very much what happened here.
Mary McCord: And same with Judge Boasberg, and the whole reason this changed is it just, there are rules about, internal court rules about how long someone can serve as the chief judge, and she happened to step down, I think it was in very early 2023, and Judge Boasberg became the chief judge, and this is one of, frankly, the burdens that they have is handling grand jury matters.
On the delay issue, I mean, I 100% agree with everything you said, but you do see here a couple of things that I think are noteworthy. First of all, how many times Trump comes back to the well making essentially the same arguments with respect to different witnesses, and he has a right to do that. Maybe he thinks he’s going to have a better argument with respect to one witness, let’s say the vice president, than with some other witness, let’s say somebody else in maybe White House Counsel’s Office or something, but he comes back multiple times, multiple times essentially seeking the same thing.
The courts multiple times go through essentially the same sort of analysis of whether the executive privilege can be overcome by the government’s demonstrated need for the testimony, and in the course of this, you see multiple occasions where Trump’s team kind of waited to the last minute to litigate this, and I say that because Jack Smith, it appears from the unredacted portions of these different opinions and orders that he proposed a process by which they gave advanced notice of who they wanted to call and consulted with both the former president, Donald Trump’s legal team, the incumbent president, Joe Biden’s White House Counsel, so that they could be able to tell the court, and in an orderly fashion, yes, the president’s asserting executive privilege, no, he’s not, yes, former president is asserting it, but current president is not, et cetera.
So they tried to do it in an orderly fashion, and repeatedly I was seeing things like, Mr. Trump’s team had X days, and sometimes up to I think two weeks to file something, and didn’t do it until right before the testimony was scheduled. So I agree with you that it’s not uncommon for people to want to slow this process down, and that’s fair, but it does seem like there were some dilatory tactics employed there to then slow it down even further.
Well, that was actually one of the comments from I believe it was Chief Judge Boasberg who was quite concerned saying, in light of comments like, oh, don’t worry about the delay here, saying no, no, no, we are concerned, because this continues, this will bump up into the 2024 election cycle, which is precisely, to me, it’s sort of like that’s exactly what was intended, which was so that you could make the claim, oh, look, this is election interference, and oh, you should stop everything, but basically you had the chief judges saying, no, we need to move this along, so that doesn’t happen.
So the hypocrisy of what was going on was called out by the judges.
I should just, I just do want to, maybe, I’m not sure I push back, but I just want to make sure people know that the claim of executive privilege, there’s sort of a couple things that are sort of really interesting. What was interesting in what you just said is that the government wanted the position of the current president with respect to whether the current president was serving an executive privilege, but also to know whether the former president, there’s a whole issue about whether the former president can assert executive privilege when the current president is saying no, and basically —
Mary McCord: And the answer is he can.
Andrew Weissmann: Yeah.
Mary McCord: He can assert it.
Andrew Weissmann: Oh, he can assert it, but whether this view of the current president essentially, no pun intended, trumps the view of the former president, and essentially in a decision that then Chief Judge Howell rendered, she said, I don’t really have to decide that because I can sort of assume it, and it doesn’t matter, because in this situation, I find that the government has overcome any executive privilege.
Mary McCord: Right, and that’s consistent with the case Trump v. Thompson, which my organization, I was co-counsel with the House General Counsel representing the House Select Committee, which sought presidential records for its investigation into January 6th, and the former president asserted executive privilege. The current president said no. That’s the issue that went to the Supreme Court after we litigated in the district court and the circuit, and the Supreme Court said, under any test, because these privileges are not absolute, under any test, the government’s need has overcome the privilege in these circumstances, and so we don’t have to decide this question like we’re talking about now about, you know, would the thumb be on the scale of the current president over the former president, or, you know, how do we handle it? Because they said under any test, the privilege is overcome by the demonstrated need.
And Justice Kavanaugh wrote separately there to kind of just make clear the point that we’re not deciding that, you know, that issue. That’s right.
Andrew Weissmann: I thought, as we were discussing this a little bit prior to starting, I thought there was something that’s going to come back and is going to be the focus of litigation, or be used in the litigation before Judge Chutkan on this issue of what is official and what is not official, the issue of, you know, is it official and thus presumptively immune versus not official? And that is on page 18 of Judge Howell’s decision in deciding whether something is covered by executive privilege, she had to decide is something sort of so personal that the president happens to be president, but it’s personal, as she says, his lunch order would be an example of that. That’s actually one of her examples.
Mary McCord: No privilege about your lunch order.
Andrew Weissmann: Right, exactly. And so the issue came up whether what happened on January 6th, and it’s not exactly clear exactly what conversations are being discussed, but the issue is sort of conversations with, it looks like the vice president’s staff about the leading up to the January 6th, whether those are official or not official. And she said, and I’m going to just quote, “The communications implicate the former president’s generalized interest in confidentiality because they speak to his efforts to execute effectively the duties of the office, in this case, the integrity of a national election and certification of such, and thus are presumptively privileged as presidential communications subject to limitation through a showing of specific need.” Unquote.
So this is in connection with executive privilege, and it’s certainly certain topics, which we don’t know that because of redactions. And I think this, Mary, this is your point, which is she’s making this somewhat in a vacuum because there is no indictment. This is all pre-indictment, and there’s no hearing that’s been held. So she just sort of has a representation of what these conversations are.
But it does overlap with at least to some extent-
Mary McCord: The Supreme Court’s immunity decision.
Andrew Weissmann: Exactly. So I just thought we’re going to, this is something that is going to be front and center before Judge Chutkan as to her view and whether she agrees or disagrees or whether she can distinguish what Judge Howell is doing.
Mary McCord: Well, first of all, I don’t think she has to do that. I mean, she just has to follow what the Supreme Court said. But the issue for her on immunity with respect to whether Donald Trump is immune from any of the allegations that have to do with his pressure on Vice President Pence to not count the electoral ballots from the swing states and instead count the fraudulent ballots or send the whole things back to the state, that issue of immunity, she will decide, I think, based on what the Supreme Court gave her in terms of direction of whether that was, those conversations were in their official capacity or whether they were in their capacity as speaking as candidates and that kind of thing.
And your point here is Judge Howell, year and a half before that was saying, in terms of whether executive privilege can be overridden by the government’s need for the testimony of the Vice President. And again, these documents don’t say the Vice President’s name, but you can kind of just tell from the context that here we were talking about Vice President Pence. She was looking at it under that framework.
And I do expect that Trump’s attorneys will see when they file their brief may say, “Hey, let’s look back at that Howell decision when she seemed to be suggesting this was official conduct.” And I think the response we may see from the government is that was before there was even testimony. So Howell is trying to make a decision before there’s even testimony, before she even knows the subject matter about whether this could be official. And she’s clearly saying some of it could be official. Again, remember, she ultimately rules though, notwithstanding that the government’s demonstrated need overcame that executive privilege and she did require the Vice President to testify.
But I think they may try to argue about it just as you did. And I think the response will be, “Now we have the details. Now we know far more because he did testify about the nature of these conversations. And now Judge Chutkan, you need to apply what the Supreme Court said?” And I think Jack Smith already has argued, right? That these are in their capacity as candidates and office seekers, right? Rather than office holders, as we heard before.
Andrew Weissmann: Exactly. Mary, should we go down to Florida? And I’m just going to quickly note that in the Court of Appeals, guess what? There’s ongoing litigation in connection with the challenge by the government to Judge Cannon’s decision to dismiss the case because of what she said was the improper appointment of Jack Smith. And so it’s a technical issue. It wasn’t a decision on the merits of the case. And Donald Trump has put in his brief. It’s very much information that we have seen before. There will be a reply brief.
It’s interesting, and Mary, I’d love your thoughts on this, which is that if I were in the government, regardless of whether Trump or Kamala Harris wins, I’d want an answer to this because it really affects the issue of how special counsels can be appointed. Leave to one side that the Supreme Court immunity decision that we were just referencing makes that whole issue of the special counsels sort of fraught with problems. But the issue of whether the statute is viable or not is something if I were the White House or the Department of Justice, I’d want an answer to this.
And so it doesn’t sort of lay out there with one district court decision.
Mary McCord: The regulations you mean, right?
Andrew Weissmann: Yeah, yeah, exactly.
Mary McCord: The regulations.
Andrew Weissmann: Sorry, sorry, yes.
Mary McCord: And I only say that because people who remember independent counsel statute, that was a statute that lapsed. And it’s the litigation over that, frankly, that in many ways has provided, and independent counsels before that, like at the time of Nixon, that have given us the sort of the historic argument for why this is okay and not a violation of the Appointments Clause, yeah.
Andrew Weissmann: Exactly, that the internal Department of Justice regulations both comply with the Constitution and is statutorily authorized by Congress. But in any event, that litigation is ongoing. It may or may not be affected by what happens tomorrow in the election, so we shall see. And then, Mary, you made reference at the outset to Judge Cannon’s decision with respect to whether she was going to recuse herself, something we talked about in prior episodes. So what happened there?
Mary McCord: Well, recall that Mr. Ruth’s attorneys argued, and I had, I think, characterized it as fell all over themselves to say, “We’re not accusing you of actually being partial, Judge Cannon, but there could be the appearance of partiality based on not so much just your rulings in the Mar-a-Lago case, but the way the former president has talked about your rulings in the Mar-a-Lago case and praised you for those rulings.” And she, no surprise here at all, rejected all of that, you know, says, “I have no control over what private citizens, members of the media, or public officials, or candidates elect to say about me or my judicial rulings, nor am I concerned about the political consequences of my rulings or how those rulings might be viewed by, quote, ‘some in the media.’”
So she’s basically saying, “There’s nothing here. And also, by the way, just because, you know, Donald Trump appointed me as a judge doesn’t mean I have a bias toward him. And just because if he wins again, he could appoint me as a Supreme Court justice, for example.” I don’t think she says Supreme Court. I think she says maybe higher court. That is certainly not a reason to recuse.
And I think on the law, she’s right about that. I think there could be an appearance. You and I talked about how if we represented Mr. Ruth, we’d probably try this as well. But even the government opposed it, the government saying, “There’s nothing here.” I mean, it was, I thought, a poor pleading by the government, but saying, “There’s nothing here.”
So this is not surprising to me. It’s just a little bit interesting kind of reading how she rejects things very much out of hand.
Andrew Weissmann: There were some new allegations about her relationship to a prosecutor on the case, ‘cause, you know, she had been in the U.S. Attorney’s Office with him, the prosecutor, she had attended his wedding, but she just makes the point of like, “Look, this was many, many, many years ago. They have no personal relationship. That’s not a ground to recuse.” And she’s right on that.
Mary McCord: Oh, absolutely.
Andrew Weissmann: I mean, she had the discretion to recuse, but it isn’t one something where the law required it.
Mary McCord: Yes.
Andrew Weissmann: So, Mary, we have a very special episode that is upcoming on Friday, and this is somebody I’ve known for years, I know you have been in multiple panels with him. So do you want to tee up for our folks what we’re going to be doing this Friday?
Mary McCord: We are anticipating that regardless of the results and regardless of when exactly we know the results, that there will be post-election litigation. And so we will be having a very well-known and well-respected election litigator, Ben Ginsberg, joining us on Friday to talk through whatever the state of play is by Friday, right? Is there litigation that has already been brought? Is there some that we are expecting? How is this going to impact the results if they’ve even been announced by Friday morning, et cetera? So really should be a very substantive and good discussion with Ben Ginsberg. And I hope everyone will join us on Friday.
Andrew Weissmann: I really hope everyone listens to that. It should really help.
In the meantime, Mary, let me just go back to the point we started with, which is, please, anyone who’s listening to this, if you have not voted, if you have friends, family, acquaintances who have not voted and you feel comfortable reaching out to them, that’s something you can do is vote.
It doesn’t matter whether you’re in a so-called swing state or battleground state, everybody should be voting. It is our opportunity to participate in this democracy. So go and vote.
Thanks for listening. We’ll be back this Friday with our special guests to discuss the election results and what legal challenges are popping up. And remember to subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC Originals ad-free.
Mary McCord: And to send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com.
This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
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