In the DC election interference case, Special Counsel Jack Smith filed his 180-page opening brief under seal last week, along with a request to release a redacted version to the public. MSNBC legal analysts Mary McCord and Andrew Weissmann analyze how this will play out, what aspects would need to be removed, and if/when the public might see a redacted version. Then, they head north to Manhattan, where a 5-judge panel held oral arguments in Donald Trump’s appeal of his New York civil fraud judgement. And a few other headlines grabbed Andrew and Mary’s attention this week from former New York Mayor Rudy Giuliani, current New York Mayor Eric Adams, and a defamation lawsuit from Springfield, Ohio. Plus: time to answer a few listener questions.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome to “Prosecuting Donald Trump.” It is Tuesday, October 1st. Mary, can you believe it? As you all know, I’m Andrew Weissmann. I’m here with Mary McCord. Welcome to October 1st.
Mary McCord: Yes. Good morning. It’s a dreary one here in Washington, D.C.
Andrew Weissmann: So speaking of dreary and the weather, Mary and I wanted to start by just sending our thoughts and prayers to all of those folks in the sort of Southeast states that were hit so hard by the hurricane. I mean, the images and devastation is it’s sort of hard to imagine. And Mary, you and I were recently in Highlands for the show.
Mary McCord: One of our episodes, yes, the summer.
Andrew Weissmann: And an enormous hospitality of the people there and hearing from them that they’re safe and sound, but the devastation and the photos and videos of it are really heartbreaking.
Mary McCord: Yes, it is. Beautiful area of the country, but extremely hard hit. And, it’s going to take a while for things to clean out and people to get their power back and water is scarce. So really, really sending good wishes to all the folks down there.
Andrew Weissmann: It’s hard to sort of recalibrate after that, —
Mary McCord: It is.
Andrew Weissmann: — but let’s focus on what we’re going to talk about in this episode.
Mary McCord: Yeah, sure. You know, top of our list is Jack Smith’s filing under seal of his lengthy opening brief on immunity. That’s a brief where he is setting forth how he thinks that the allegations in the superseding indictment are not precluded by the Supreme Court’s immunity ruling. And then there’s an extensive appendix to that where he actually is laying out all the evidence that the government intends to use to prove up the facts in the indictment and making arguments about that evidence not being precluded by the immunity decision.
So we talked about that, of course, last week, that’s an 180-page filing, but what is now at issue is his motion to, you know, redact certain things from that filing and have then the redacted version made public. And so we’ll talk about that and what that means. We’ll also then talk about a bunch of other stuff that’s going on. The civil fraud appeal by Donald Trump in New York City was heard by the appellate division late last week. I believe there’s some other stories getting attention. Rudy Giuliani has now been disbarred in Washington, D.C.
Andrew Weissmann: Spoiler alert.
Mary McCord: Yes. Right. New York City Mayor, Eric Adams has been indicted and has already, and I’m not sure I’ve ever seen a motion to dismiss account filed this quickly after an indictment has already filed a motion to dismiss the bribery count and we will get to listener questions as well. So, a lot on our dance card today. Shall we jump in?
Andrew Weissmann: Yeah. So, let’s start with the Jack Smith filing and some people might have two sort of preliminary questions. One is the word redact.
Mary McCord: Right.
Andrew Weissmann: That’s such a legal term.
Mary McCord: Good point.
Andrew Weissmann: That’s something that you and I use all the time. We say it’s redacted, it’s redacted. And you know, it’s so second nature, but it’s basically, it’s when you file something where you are taking out, you’re deleting, you’re putting a big black magic marker through certain words. And so in cases where there’s sensitive material, you’ll file with the court the full unredacted submission, and then you’ll file something with the proposed redactions what you’re proposing to delete so the court can see what it is. Very often what you’ll do is you’ll, for the court copy, it’ll be almost in red highlights in boxes so they can see what you’re proposing to redact. Then the other side gets to weigh in to say, do they think that it’s too much or too little, they can propose variations or they can agree on the redactions then the court rules. And so the parties on both sides will see the full version. The court sees the full version, but the public sees the quote, “redacted version.”
Mary McCord: That’s right. And just one little amendment to that.
Andrew Weissmann: Yeah.
Mary McCord: When the full version is filed with the court, this is another term of art that we throw around a lot, which is that whole full motion is filed under seal. Right? And under seal simply means not on the public docket, not available to the public. And literally under seal comes from when it used to be that you would walk the filing in an envelope, sealed to the court and hand it to the clerk and it would be marked under seal. And it literally would be sealed so that no one could see it except the judge and the judge’s chambers staff back in the day.
Andrew Weissmann: Yeah. I know when you and I were walking barefoot —
Mary McCord: Yes.
Andrew Weissmann: — to the courthouse, is it too soon to tell you an anecdote?
Mary McCord: Nope. I think we’re ready for anecdotes. There’s always a good time.
Andrew Weissmann: Proper response.
Mary McCord: Yeah.
Andrew Weissmann: Never too soon.
Mary McCord: Yes.
Andrew Weissmann: So, speaking about that issue about whether it’s hard copy now that you can do it electronically, there was a very famous instant during the Mueller investigation where the defense filed under seal their papers, but they’re doing it now electronically. And there’s a whole process for doing that to make sure that the under seal version —
Mary McCord: Does not get put on the public docket.
Andrew Weissmann: And then the public redacted version is done electronically. And here what the defense did is they simply did it on their computer and then filed it. But that’s not sufficient because they filed something. And an enterprising reporter simply took the filing, the PDF, and did this thing, which is like unredact. And all the markings —
Mary McCord: Yes.
Andrew Weissmann: — came out and it revealed information about Paul Manafort sending Trump campaign polling data to various people aligned with Ukraine and Russia in others. That was certainly our allegation. And we had proved that up in various ways, but they were the ones who made that public. We didn’t. And it’s because you have to be really careful in this electronic age about how you do it. The typical way you do it is you actually —
Mary McCord: Make sure don’t leave in any metadata either.
Andrew Weissmann: Yeah. So, you typically do that by actually taking a picture of the filing. So there’s nothing to unredact.
Mary McCord: Right.
Andrew Weissmann: There’s no other document behind it. So that’s one of the differences. It was better in our day.
Mary McCord: It really was. And you know, it’s funny that you mentioned that because when the court first went to electronic filing and it used to be you filed everything in person, right. And if you filed after hours, there was an afterhours box and all that. Then they went to electronic filing for everything except under seal documents. So we had several years where those you still had to walk over until they figured out a way to do documents under seal electronically. So with this lovely blast from the past for us, you know —
Andrew Weissmann: I know.
Mary McCord: — dinosaurs of the law.
Andrew Weissmann: We could wallow with this, but Mary, I have a question for you to sort of tee us up, which is given that you said that the 180-page filing is under seal. What are we talking about? Because there was —
Mary McCord: Yeah.
Andrew Weissmann: — something that was actually not under seal. And so, what was not under seal and what does it say? And then what’s your reading of it.
Mary McCord: Right. Now and this was initially filed under seal, but has been made public. This was the government’s motion for leave to file an unredacted motion under seal and file a redacted motion on the public docket. So at the time that the government filed its 180-page pleading, it filed this motion also under seal. This motion’s been made public. This is where the government is explaining what they have proposed in the redactions. And that is to redact certain material that was deemed sensitive under the protective order that was entered by the court way back last fall.
Now, note that protective order was something the government had asked for shortly after I brought this case because it was worried that when it provided discovery to Donald Trump and Donald Trump’s legal team, that they might make some of that material public, which would include sensitive things like identifying information of witnesses, what’s called rule six materials, which are grand jury subpoena returns, witness testimony before the grand jury, exhibits presented to the grand jury, other materials obtained through search warrants and other transcripts and recordings and interview reports of witness interviews, those kind of things. And the government sought that productive order. And that protective order was granted. So that in discovery, the parties could designate material as sensitive.
The government now is saying, we are using that same definition of sensitive and we’re redacting certain sensitive information from this public filing. Again, the public filing, being the main brief about the superseding indictment and then the addendums, the attachments that are about evidence, not direct allegations.
Andrew Weissmann: Right. And just to be clear when you say the public, the proposed public filing.
Mary McCord: Right. The proposed public filing.
Andrew Weissmann: Okay.
Mary McCord: Not because right now what’s going to happen is it noon today, so after we record, but before this is public Donald Trump’s team can object. If they want or agree, if they want to, what the government has proposed to redact from the main part of the filing they have until October 10th at 5 a.m. 5 a.m., that’s ridiculous, at 5 p.m. to object to the redactions to that addendum.
Andrew Weissmann: So they sort of at two part staging that Judge Chutkan has imposed, one is with respect to the brief, the others with respect to what appears to be a much longer appendix.
Mary McCord: That’s right.
Andrew Weissmann: Is that right?
Mary McCord: That’s right. And I was calling an addendum, but you’re right. I think they’ve called it an appendix. So that’s significant —
Andrew Weissmann: Yep.
Mary McCord: — for the reason that it seems that maybe by bifurcating this, the judge is thinking about ruling first on the motion and maybe making some redacted version of the motion available to the public even before ruling on the appendix.
Andrew Weissmann: Right.
Mary McCord: But one of the things that I thought was significant, and I’m not sure about you, Andrew, in the government’s motion, it says that it has redacted the names of individuals aside from those names that already appear in the superseding indictment, such as Mr. Trump and former Vice President Michael Pence, but it has not redacted, and I’m reading, quotations or summaries of information from sensitive materials, but in the footnotes, it has redacted citations that reveal the non-public sources of such information, including grand jury transcripts, interview reports or material obtained through sealed search warrants. So what that means is that they may have in that opening brief, the substance of what was in grand jury testimony and interview reports, they are proposing to make public not be redacted. Just the attribution of that to a particular witness, a particular grand jury proceeding, a particular interview is what they would redact. So they are most concerned with redacting, the identities of witness or the actual source of the information.
Andrew Weissmann: So obviously the part that as lawyers will be interested in is there’ll be a lot of legal discussion and that, —
Mary McCord: Yes.
Andrew Weissmann: — it seems very hard for Donald Trump to object to that.
Mary McCord: Right.
Andrew Weissmann: He, I think will certainly try and tie the first part of these objections with respect to the brief, to the second part, which is in other words right now, he has to do something today.
Mary McCord: Yes.
Andrew Weissmann: He has to do something by October 10th, he’s going to try and push this all off by saying, —
Mary McCord: Yes.
Andrew Weissmann: — don’t rule on this stuff today because it’s really related because you know, delay, delay, delay.
Mary McCord: And I think he’ll try to push off. I think he’ll take three on like, we shouldn’t have to do this at all. This should not become public till after the election America.
Andrew Weissmann: Mary, you’re so cynical. Yeah. Of, I agree with you. I do think that there will be, the government goes on and on to justify why it’s appropriate to redact names, talking about how witnesses have been harassed or threatened. And they even do that with respect to some names that they say are already public because they don’t want to amplify the problem. So that if their names and tweets, for instance, that the former president issued, they say that they’re proposing to redact even those.
Mary McCord: Right.
Andrew Weissmann: At least some of them. So I do think that the brief will include information that is new if we end up being allowed to see it. The one thing that’s a little interesting to me is I think there’s some tension on this issue of the identity of the person is relevant to the issue of whether it’s official or unofficial action and the judge’s decision. No, of course she —
Mary McCord: She will see it.
Andrew Weissmann: — and the parties will see it.
Mary McCord: Yes.
Andrew Weissmann: But it’s hard to have the legal discussion about it because —
Mary McCord: Without identifying.
Andrew Weissmann: — it’s hard to know that the person for instance, was working in the White House at the time, —
Mary McCord: Right.
Andrew Weissmann: — in such and such a position. So I think you would at least have to have enough identifying information to understand whether the person was in the government and what their sort of job function was. Because otherwise it would be hard to really understand. Now it may be that that all gets redacted, but the judge knows —
Mary McCord: That’s what I was thinking. Yeah. Because the judge certainly knows it.
Andrew Weissmann: But yeah, but it could be Swiss cheese at that point where —
Mary McCord: That’s right.
Andrew Weissmann: — there’s a lot of people speculating about who it could be. But I do think the one thing we do know is Judge Chutkan is likely to rule very quickly because when we were talking about this last week with respect to the 180-page filing, and I remember being asked this by Lawrence O’Donnell saying, when do you think we’ll have some sort of ruling? And I said, well, Judge Chutkan isn’t going to let the grass grow on this. And he said, what do you think within two weeks? And I was like, oh, yeah, absolutely. And literally it was the next day when she got the filing, she set a scheduling order.
Mary McCord: Right.
Andrew Weissmann: And just to be clear, it’s a scheduling order that allows the defense an opportunity to be heard.
Mary McCord: Yes.
Andrew Weissmann: But when she gets the filing today, it’s highly likely that she will rule quickly on that. It’s hard to anticipate whether the government will think it needs to respond or she could even bring the parties in. That would be something under seal to talk about any proposed differences.
Mary McCord: Yeah. Because my suspicion is Donald Trump is going to want a whole heck of a lot more redacted. First of all, he is going to say, this shouldn’t get filed on the public record at all. Period, full stop, same arguments he’s made before.
Andrew Weissmann: Yes.
Mary McCord: It’s not fair, et cetera. Then he’ll say, if you’re going to put it on the public record, my suspicion is, he’ll say a whole lot more needs to be redacted here.
Andrew Weissmann: Right.
Mary McCord: So it could be —
Andrew Weissmann: Yeah.
Mary McCord: — that the government will want to file a response. We’ll see. Or like you said that she’ll have the parties come in and argue about this.
Andrew Weissmann: Right.
Mary McCord: That argument, unfortunately though would also be under seal.
Andrew Weissmann: Yep.
Mary McCord: So we wouldn’t be privy to that.
Andrew Weissmann: Right. And the judge will just go through it like point by point and make rulings, you know, in, out, in, out, et cetera.
Mary McCord: Right.
Andrew Weissmann: And then this is where, Mary, your point from last week comes up, which is you had asked me. And do you think that Donald Trump will try to —
Mary McCord: A mandamus.
Andrew Weissmann: — or a mandamus this and others to seek appellate review as a way to delay this. And this is where it is possible that they do that because you know, again, he’s sort of looking at the calendar, he’s just thinking five weeks.
Mary McCord: Yep.
Andrew Weissmann: Right? Now he would have to get a stay from the appellate court.
Mary McCord: Yep.
Andrew Weissmann: I doubt that Judge Chutkan would stay her decision terribly long if at all. So that’s another thing that could cause delay, but we’re going to die relatively soon. I, I certainly think in the next few days, my surmise would be, we’ll have a good answer on that.
Mary McCord: Yep. I suspect so too. And hopefully something on the record to talk about next week.
Andrew Weissmann: Yep. So why don’t we take a break and then turn to sort of almost like the other extreme, which is an appellate argument in New York here in my backyard. And we’ll talk about the appellate argument. This is the appeal of the New York Attorney General civil judgment against Donald Trump, his children, and some others in connection with the fraud allegations found by the court. Remember this was tried to the judge.
Mary McCord: After a trial.
Andrew Weissmann: Exactly. Let’s take a break and then come back and we’ll go from the world of the district court to the world of the appellate court.
Mary McCord: Sounds good.
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Mary McCord: Welcome back. Well, as we indicated, we are now moving up to New York City to the appellate division and the argument over the massive, remember this was a, almost a half a billion dollar judgment against Donald Trump and others for sort of this massive fraud scheme that involved inflating the value of various of his assets, including real estate assets and very substantial monetary judgment by Judge Engoron at the end of that trial, as well as summary judgment, even before the trial, on certain issues.
And listeners will recall back when this happened, there were all these issues about appeal, and normally you have to put up a bond in the amount of the judgment in order to appeal because the ideas that the defendant shouldn’t be out spending all of his money during the time of the appeal so that he can’t pay the judgment. And ultimately that issue got resolved by a smaller amount of bond, if I recall, and not a half billion dollars in bond put up. So, finally, we get to the point of actually being in court and tell us about that, Andrew, because you’re in Manhattan, you’ve probably gone to these appellate division arguments there. Again, this is in state court, not federal court.
Andrew Weissmann: Sure. So this is the appellate division first department. So this is the first level of appeals court where Donald Trump, like anyone else, has a right to appeal the decision against him. And there could be another layer of review to the court of appeals, but that is a little like the Supreme Court of the United States. The court of appeals doesn’t have to take that appeal. So this is the sort of first level of review. The reason by the way it’s called the first department is because New York City is really big. So there’s a second department that’s for another borough and the third department, et cetera. The appellation first department by the way, is the most beautiful building.
Mary McCord: Oh.
Andrew Weissmann: It’s right near me. And it’s this turn of the century building, it’s very small. The courtroom is exquisite and you really feel the majesty of sort of old New York. Just a little aside to get you in the room.
Mary McCord: Yep.
Andrew Weissmann: The other is that there are five justices who sit to hear this. It’s not three as would be typical in a federal appeal. And the presiding judge is Dianne Renwick. Who, little note to self, is when I started out as a prosecutor in the Eastern District of New York, she was a federal defender there. And just fabulous. I think we’ve talked in the past about how the prosecutors and federal defenders tend to have this very good —
Mary McCord: Yes. I certainly did.
Andrew Weissmann: — and close working relationship and one of trust.
Mary McCord: And don’t forget, Judge Chutkan also was a defender, —
Andrew Weissmann: Yep.
Mary McCord: — a defense attorney. Yes.
Andrew Weissmann: And it was one of the things that was lovely about the courthouse is that the institutional players really got along and understood their roles in the system. Anyway, you can actually go online and you can hear the argument.
Mary McCord: And you can watch it. Right? So they can see this ornate courtroom.
Andrew Weissmann: Yes.
Mary McCord: Yeah.
Andrew Weissmann: You can see it. It’s a little hard to see all of it, but they do set up the cameras so that you can see the parties who are arguing and you can see all five of the judges as they ask questions. It’s funny. I listened to it and I also then read a lot of the commentary about it. And I think the commentary kind of got it wrong. There was a lot of like, oh, there was a lot of skepticism about whether the attorney general overstepped her role about why this case was brought just a lot of things like that. And there certainly were those questions. And I think there’s no question that there is a split amongst the five judges, although you know, you never can totally tell just from oral argument and I’ll get to one of the more striking moments for me. But I thought that many of the questions were about the first charge versus the other six charges.
Mary McCord: Right.
Andrew Weissmann: And that’s why I made this point about the first one is based on something called the Martin Act. And it was the one where the judge granted summary judgment, meaning that a trial wasn’t necessary because there were no issues of fact. The Martin Act is quite famously here in New York, a very broad statute. And so a lot of the questions were about that count saying, weren’t there issues of fact, what are the limits of the Martin Act? Should it really reach a dispute between private actors where there allegedly was no harm? That was one of the questions from one of the judges.
Mary McCord: Right. And where one of the private actors here, it would be the various lenders and insurance companies aren’t the ones complaining about it.
Andrew Weissmann: And so, there was a lot of discussion about that. Like what is the limiting principle? There was less discussion about the other six counts. And then there were also questions very much about damages. Was there a double counting or not? And so, I wouldn’t be surprised if there were a three to two decision on, at least some of this, I don’t know which way the three are going to go. And the two, so that’s like the, you know, it’s a critical issue.
Mary McCord: Right.
Andrew Weissmann: You know, it was pretty easy to tell the two and two, and then there was one judge who was relatively silent. That’s why I’m saying that. Just a couple things about the argument. One of the judges who seemed very, very, very much on the side of Donald Trump. And I don’t mean that on a personal level. I mean, in terms of the arguments, —
Mary McCord: The legal.
Andrew Weissmann: — about the legal issues, some of the factual issues, I thought one of the unfortunate things was when other judges, including the presiding judge, Dianne Renwick had asked a question and the attorney general’s appellate lawyer was responding, that judge who was friendly, sort of tried to cut the person off to ask their own question. And a couple times Dianne Renwick had to turn to him and say, no, let her finish then ask your question. That’s not sort of normal to see that —
Mary McCord: Yeah.
Andrew Weissmann: — there should be more, you may not like the answer, but the other is I thought that the attorney general’s appellate lawyer was superb, really good and really good on the law.
Mary McCord: Yeah.
Andrew Weissmann: And really good with the record and very, very good about pointing out where there had been statements that were wrong, that either a judge had made about the case or that the other side had made. So, I was very, very impressed with her facility in terms of the record, being able to do the law piece and the fact piece.
Mary McCord: Yeah. And responding to some tough questions.
Andrew Weissmann: Yeah.
Mary McCord: Yeah.
Andrew Weissmann: And Mary, I don’t know about you because you’re an appellate lawyer and I’m not. I’ve certainly done appeals and I’ve also helped people in preparing for appeals. And I think one of the things that’s just can be so effective in an appellate argument is the appellate lawyer who really is conversant with the record.
Mary McCord: Oh, yeah. Know it called. Yes.
Andrew Weissmann: And know it called so that you can turn to the judge and say, if you turn to this page, this is what says.
Mary McCord: Transcript page 175 at line 12.
Andrew Weissmann: And you know what, and you could see it here where, when they were doing that, you could see the judges writing it down.
Mary McCord: Yep.
Andrew Weissmann: And it’s just a very impressive thing. And it’s a way of, this is like an insider tip for people who are thinking about becoming appellate lawyers, it’s such a good way to help win your case, to get credibility and really advance your cause in terms of tethering this to the facts.
Mary McCord: Yes.
Andrew Weissmann: And that sort of happened over and over again in the approximately 55-minute argument.
Mary McCord: It’s an interesting thing that’s maybe for another day, but you really see that at that sort of intermediate appellate level when everything is about the facts of this case and applying a lot of this case, some people may say, I don’t see as much of that up in the Supreme Court when I listen to Supreme court arguments and that’s because the Supreme Court, when it takes a case, it’s not that it’s uninterested in the facts. And sometimes it does decide strictly on the facts, but oftentimes it’s taking a case because of a bigger sort of legal principle that’s going to have ramifications far outside the facts of the case. And so sometimes they will focus much more in argument on the legal question, how it might apply in other circumstances as opposed to the details of the case. So it’s an interesting dynamic there that we can maybe illustrate at some point, but yes. How quickly do you think they’ll rule, Andrew? What’s their norm?
Andrew Weissmann: It’s long, but you know —
Mary McCord: Yes.
Andrew Weissmann: — I do think in this case, I just think they are going to, you know, I would love to say they are going to treat it like any other case. But you could just tell from the argument that that’s not —
Mary McCord: They are not.
Andrew Weissmann: — the case.
Mary McCord: Yes.
Andrew Weissmann: I would be shocked if it was decided in a month or two.
Mary McCord: Yes.
Andrew Weissmann: That is quite short. As our listeners know, justice is slow. And so I really don’t have a prognosis. I mean if you said a year, I would be like, oh my God, that’s —
Mary McCord: Yes.
Andrew Weissmann: — going to be too long. I just find that unlikely. Also because of this issue that there’s seven counts and there’s a difference between the first —
Mary McCord: Right.
Andrew Weissmann: — and the others.
Mary McCord: You have to parse that.
Andrew Weissmann: And I think you will get several decisions because, again, just tea leaf reading there clearly was a split with a judge who thought that the attorney general shouldn’t have brought the case at all. That the Martin Act, this was bridged too far. It was a private dispute. And another judge saying, what are you talking about? We’ve decided cases on this statute involving a private dispute.
And let me just give you sort of the big picture issue was the judge who was sort of disinclined to think this was a righteous case by the attorney general kept on saying, well, there was no harm. There was no harm. And another judge said, the attorney general is entitled to have a deterrent effect and —
Mary McCord: Yes.
Andrew Weissmann: — doesn’t have to await harm. And one of the arguments from the attorney general’s appellate lawyer was, you know, you cited to cases like the Lehman Brothers bankruptcy, which was a huge bankruptcy that people think caused this sort of 2008 —
Mary McCord: Right.
Andrew Weissmann: — meltdown or at least was a —
Mary McCord: Financial crisis, yes.
Andrew Weissmann: — was a precursor to that or a catalyst. She said that happened, but we shouldn’t have to await that to take action.
Mary McCord: Right.
Andrew Weissmann: And Dianne Renwick cited the very preamble to the Martin Act about essentially making, I am going to just paraphrase, which is making the New York business community safe and secure for business. And that is something that you can see that coming and anticipate it. You don’t have to just prosecute the crime after —
Mary McCord: After it’s done.
Andrew Weissmann: — it occurred.
Mary McCord: Right, that’s right.
Andrew Weissmann: Which by the way, you and I know in criminal law it’s like, this is what we used to call in the terrorism world left of boom —
Mary McCord: That’s right.
Andrew Weissmann: — which is —
Mary McCord: Prevents.
Andrew Weissmann: — the phrase for you want to prevent it before the bomb goes off.
Mary McCord: Exactly.
Andrew Weissmann: Not after.
Mary McCord: Yes.
Andrew Weissmann: So, that was sort of the back and forth and it’s sort of an obvious point.
Mary McCord: There were also good arguments I thought made at trial about there is injury here because this does affect sort of insurance pricing and other people seeking loans wouldn’t get this benefit. And other people seeking insurance wouldn’t get this benefit and those types of arguments. But I think it will be really interesting to see how they come out here.
Andrew Weissmann: One of the things that was a little disturbing in the oral argument was one of the judges sort of kept repeating what I sort of viewed as disinformation. And exactly, Mary, to your point of this issue that there was evidence of harm. That judge kept on saying, well, these are sophisticated parties and no one complained and there was no harm.
And I was just disappointed because there are valid arguments.
Mary McCord: Yes.
Andrew Weissmann: But that not all of that is factually true, and there was a factual record. And if you want to dispute that, there’s a legal standard in terms of whether the judge had a sufficient factual basis to make that. But it was disappointing to hear the sort of the recitation of the case coming from the judge’s mouth that I didn’t think was fully faithful to the record.
Mary McCord: To the record, yes.
Andrew Weissmann: Or how, if he thought, that wasn’t the correct factual conclusions. That’s a very different legal standard to say the judge got the facts wrong. So to me, I’ve seen this even in Supreme Court of the United States where the concern about disinformation, I just didn’t feel like it was completely dispassionate presentation.
Mary McCord: I see. Well, we will see what happens. Let us jump to break now. And when we come back, we will top off a few other quick hits on things that are happening that we are keeping our eyes on and then hopefully get to a few listener questions.
Andrew Weissmann: Fantastic.
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Andrew Weissmann: Welcome back. So Mary, one of the quick hits that are on our agenda before we get to our listener questions?
Mary McCord: Yes, so some folks may have seen that Rudy Giuliani was disbarred in the District of Columbia and people might say, well, yawn, isn’t that obvious? But the way this works, it was not like D.C. had its own whole full out proceeding. I mean, there were briefs and all of that, but D.C. has a law, like many states do, that they kind of will have reciprocal discipline.
Because Rudy Giuliani was already disbarred in New York, D.C. disbars him from the practice of law based on this rebuttable presumption in favor of imposing the identical discipline from another state. And here, of course, there was nothing to rebut that. So, that’s it. He can’t practice law in the District of Columbia anymore.
The other big thing that happened last week was, of course, the mayor of New York City, your town, Andrew, was indicted by the federal U.S. Attorney’s office in the Southern District of New York, which is in Manhattan. It’s a very interesting read. It is comprised of, I would say, two big buckets of offenses.
One, what are campaign violations that we call straw donors and that is when you have illegal campaign contributions coming in. And here they’re alleged to come from Turkey, various Turkish entities and foreigners and foreign governments may not contribute to campaigns here in the U.S. And those were disguised by going through legitimate lawful donors in the United States who would make the donations and then be compensated for those. So, we call those straw donors and those allegations seem really solid to me having read the indictment, not sure about you.
The other bucket is a bribery charge, which I think is one that is already more controversial and which has already prompted a motion to dismiss that charge by Eric Adams’ attorneys. That’s one of the fastest motions to dismiss a charge, I think, I have ever seen. The indictment just was filed last week and already that motion has come in. So, I don’t even think there’s been court proceedings yet, have there?
Andrew Weissmann: Well, there’s been an arraignment.
Mary McCord: Yes.
Andrew Weissmann: But there hasn’t been any —
Mary McCord: Like scheduling orders or anything like that, right?
Andrew Weissmann: Exactly. So in the first bucket having to do with the straw donations, there does appear to be allegations that Eric Adams knew about this.
Mary McCord: Right, yes.
Andrew Weissmann: That’s always the key where this straw donations is showing that the candidate actually knew about this and was not just happening at a lower level, which can happen.
Mary McCord: Yes.
Andrew Weissmann: And certainly in big campaigns.
Mary McCord: And that’s where they are showing things like e-mails and conversations and text messages and so —
Andrew Weissmann: Yes.
Mary McCord: — and so, yes.
Andrew Weissmann: So that part seems, I agree, if they can prove it up, that seems much stronger. I think that the bribery charges are fascinating and potentially difficult. The Supreme Court is —
Mary McCord: Keeps narrowing, narrowing, narrowing.
Andrew Weissmann: Yes, exactly. So, that they have to hear the feds have to deal very much with the state of the law. But that’s sort of a very interesting read as to whether there really was a quid pro quo —
Mary McCord: Right.
Andrew Weissmann: — at the time that the payments were made. And I do think that the defense is right to jump on that. It is a little tricky to win that as an argument on the papers.
Mary McCord: Yes.
Andrew Weissmann: And I would say that the pleading does not work.
Mary McCord: Without some factual development, yes.
Andrew Weissmann: But I think one of the reasons they did that is because of the political reality here in New York.
Mary McCord: That’s right.
Andrew Weissmann: Which is that there are a lot of people with a drum beat that the mayor should resign.
Mary McCord: Yes.
Andrew Weissmann: And so having this pending motion out there is a way of saying that there’s a challenge to the charges. So of course, this is in fact only a challenge to one charge, but I think there were a lot of non-legal reasons to have brought that as quickly as they did. Some people might be asking, why are we covering this? Like sort of what’s the relation to “Prosecuting Donald Trump?”
And let me just give you my quick take is, one of the things that was disheartening but in the model of and mold of Donald Trump was Eric Adams took through airwaves after the charges were announced and basically said that I have been the victim of the Department of Justice because I have been complaining about the number of immigrants who have been sort of landing in New York or being deposed in New York from other states and without getting sufficient help from the federal government. And so this is retaliation for that.
Mary McCord: Basically a political prosecution, right?
Andrew Weissmann: Yes. And there was a suggestion also. You know, so Eric Adams is a black man and so there was also that flavor. They should point out that the U.S. Attorney in the Southern District of New York, the office that brought that is also a black man.
But this sort of idea that you are just going, of course, play all of those different cards to attack the prosecution. We saw that also with Senator Menendez, who is also prosecuted at that same office. And this goes to the other big point is sort of, it is notable that Department of Justice is the one that is supposedly engaging in witch hunts and is just going after Republicans, the Department of Justice is gone after Senator Menendez.
Mary McCord: A Democrat.
Andrew Weissmann: And gone after is not even the right word.
Mary McCord: Yes.
Andrew Weissmann: Brought charges.
Mary McCord: Brought charges, fact-based charges.
Andrew Weissmann: Right. And same thing with respect to the Mayor of New York, a Democrat and the list could go on and on up to and including the son of the President.
Mary McCord: That’s right.
Andrew Weissmann: So, where a special counsel was appointed by the Attorney General of the United States. So, the idea is that it’s just in the tradition that, Mary, you and I were raised in, which is we don’t ask whether the person is a Republican or a Democrat.
Mary McCord: Right.
Andrew Weissmann: We ask whether it’s a righteous case.
Mary McCord: That’s right, that’s right. We follow the facts and the law regardless of ideology or party. Okay, so we will be keeping tabs on that as we go along. Maybe at some point get into that bribery allegation, which has to do with an allegation of accepting luxury travel, et cetera, in return for taking action to help get a fire department approval, code approval to open up a Turkish Consulate, Turkish House. So, interesting stuff.
And the last point we wanted to make because last week we did talk about this interesting procedure in Springfield, Ohio, by which the Haitian Bridge Alliance had sought from the court to get arrest warrants or a referral for prosecution of Donald Trump and J.D. Vance for basically a number of different charges related to the lies that they have been spreading about the Haitian community, being there illegally and also eating people’s pets, which sounds as crazy to hear it as it does to say it.
And I don’t know yet what’s happening in that case, but meanwhile, and maybe not too surprisingly, we have also now seen a civil lawsuit brought basically for defamation. Really it’s a conspiracy to violate civil rights brought by the Office of the Haitian Diaspora and the Diaspora Political Action Committee to also make claims for money damages, right. A civil case related to the false information, the defamation that has been spreading that has caused actual harm to people in Springfield. So, that I’m not too surprised to see, and we will follow that.
Andrew Weissmann: To me, that is like ripped from the sort of, if you tell falsehoods that are not just big political falsehoods, like there was a fake election and there was fraud in the election, but you actually are saying something false that hurts somebody.
So, you have Shaye Moss, Ruby Freeman.
Mary McCord: Yes.
Andrew Weissmann: You have Smartmatic.
Mary McCord: Yes.
Andrew Weissmann: You have Dominion.
Mary McCord: Dominion.
Andrew Weissmann: I mean that’s why you see these civil cases where if these politicians aren’t careful, you will have lies that go to a harm. And that’s where you end up with a civil lawsuit. Obviously, you have to meet a whole variety of legal standards for that. So Mary, are we ready for our questions?
Mary McCord: Yes, yes.
Andrew Weissmann: Here’s a question from Jason and it’s about politicizing the Department of Justice. And he says, I have been hearing a lot lately that if Donald Trump were to win the presidency again, he can simply order his department to drop the cases. And the question he has is, doesn’t the department have an obligation to prosecute crime and therefore an obligation to follow through with the rigorous investigation of alleged crime?
So, how does this work? Do they have to follow what the president or the attorney general would order? And if they do that, is there anything the public can do to seek justice? So essentially, does he really have this power?
Mary McCord: Yes, he does. He did even before the immunity decision and he certainly does after the immunity decision. But putting aside the fact that under the immunity decision, the Supreme Court has said communications by a president to his Department of Justice, including directions to do things including potentially sham investigations are things that are within the exclusive investigative and prosecutorial functions of the Department of Justice.
These are executive branch functions. These are core constitutional powers for him to direct his Department of Justice, and he’s absolutely immune. Putting that aside though, even before that, it’s the decision of the Department of Justice about whether to bring a case. It’s not the decision of a private party who thinks the law is broken.
They can’t compel the department to bring a case. And indeed, they also can’t prevent the department for bringing a case. Sometimes you have a case where a victim doesn’t actually want a prosecution to be brought, but it is not actually even the victim’s choice. It is the choice of the Department of Justice and the prosecutors.
And that is the same with respect to prosecuting Donald Trump, if he were to win the presidency. Now, we’d have a couple of things going on there because the Office of Legal Counsel within the Department of Justice has four decades and decades opine that you cannot prosecute a sitting president while he’s sitting. It would be too much of a distraction from his office.
So for one thing, you could not do it for that reason. But even putting that aside, again, it’s up to the Department of Justice. And since the Department of Justice is part of the executive branch, the president does have that ability to tell the department to drop a case. It is an interesting thing. So, what the public can do to seek justice, if members of the public have standing, they can bring their own cases and they can build pressure, right.
And they can build pressure. And ultimately that kind of pressure can translate to things like elections. Now, we don’t elect the attorney general, but presidential elections and things like that. So, it might seem unsatisfying to people, but that is the way the executive branch works and the Department of Justice.
Andrew Weissmann: So couple wrinkles, obviously people in the Department of Justice, if they don’t like a particular thing they’re being ordered to do, they can resign.
Mary McCord: That’s right.
Andrew Weissmann: You’re not an indentured servant. You don’t have to follow a decision you don’t like for whatever reason, so you can leave.
Mary McCord: Yes.
Andrew Weissmann: The other is, there’s a slight, very small open issue that started to get litigated in the Michael Flynn case, which is what happens where you have a case where there’s a pending prosecution and all you’re doing is awaiting sentencing? And the government suddenly moves to dismiss for reasons that, let’s assume that this, making hypothetical, that the court believes that the reasons given by the government are not made in good faith.
Mary McCord: Right.
Andrew Weissmann: Then there’s this issue about, could the court still go forward where all that’s left is sentencing —
Mary McCord: Sentencing.
Andrew Weissmann: — or even if the sentencing had happened, could the case then be sort of reopened for dismissal? Does the court have some independent right to say, no, no, no, this is going to stand? So, that’s a long way down the road, if that were ever happen, but there is a slight open issue on that. But the reason it’s slight is because of the court’s recognition that this is so much a prerogative of the executive. And Mary, as you noted, the immunity decision certainly has language in it that would suggest that that window may be shut.
Mary McCord: Yes. No, absolutely. And the reason there’s a slight window is because under the rules of criminal procedure to dismiss a case, once it’s been brought, requires the leave of the court, the approval of the court, and that is actually there to protect defendants. So, that prosecutors don’t sort of manipulate the system, right, dismiss, put pressure, rebring, do those kind of things.
Andrew Weissmann: Yes.
Mary McCord: But it leaves that slight window. And we saw that play out in the Michael Flynn case with the judge there appointing an outside attorney to make the arguments, essentially that the Department of Justice was not making because they were seeking to dismiss the case. So, interesting stuff.
Okay, since we’ve mentioned immunity, let’s toss this one to you, Andrew from Kathy. Can the Supreme Court ever reverse its decision on presidential immunity or is there a way that something addressing that issue could be legislated?
Andrew Weissmann: So boy, we are going to give clear answers today, which is, so can the Supreme Court reverse its decision? Absolutely.
Mary McCord: Yes.
Andrew Weissmann: The Supreme Court can always just say we blew it and they come out differently. There is supposed to be a doctrine of Stare Decisis, meaning that you are supposed to give sort of added weight to decisions of the court. So, you’re not just flip flopping around like a fish on the beach. So, the Supreme Court could reverse itself. Sometimes you see that when you have the change in composition of the court.
Obviously, we saw that famously with the Dobbs.
Mary McCord: Yes.
Andrew Weissmann: Roe versus Wade. And then the second part of that question is there’s something that could be done legislatively. And that’s more complicated.
Mary McCord: That is tougher.
Andrew Weissmann: But in general, where the Supreme Court has said that something is in the constitution and constitutionally required than — that is sort of a higher law and that binds Congress. Congress cannot just create a rule that is directly antithetical to that position. So for instance, if the constitution says that the president has the power to pardon, Congress can’t just pass a law that says, oh, now I’m taking that away or now that power goes to Congress.
The reason I’m somewhat hedging is that that’s a direct conflict. You are looking for something directly in the constitution that gives the power to somebody to do something. And you’re looking for legislation that directly contravenes that since you, Mary and I —
Mary McCord: Like we, yes.
Andrew Weissmann: You and I are lawyers. Lots of this is grayer.
Mary McCord: This is what came up last week, right? What we talked about after the Senate judiciary testimony that the Supreme Court in its immunity decision read those core constitutional powers, even broader than just the pardon and the veto authority. And said that for some even more expansive powers, the words they use is the executive authority is conclusive and preclusive to your point, meaning Congress can’t act upon it and courts can’t review it.
And so the question arises with respect to legislating about presidential immunity, whether the Supreme Court would say, nope, Congress, you are now intruding into areas that are conclusively and preclusively within the executive authority. That said, one other issue that came up during my Senate testimony last week was a potential constitutional amendment that eliminates immunity for a president. And that is something that certainly could happen lawfully, if you could ever get three quarters of the states to approve it.
Andrew Weissmann: A big if.
Mary McCord: Yes.
Andrew Weissmann: A big if.
Mary McCord: But certainly amending the constitution is always a possibility. It’s just that is a very, very uphill climb when you need three quarters of the states to approve it.
Andrew Weissmann: Yes, so it seems to me getting the Supreme Court to change its decision where the different composition of the Supreme Court is going to be, all of these are difficult. That’s probably the least difficult in terms of that versus a constitutional amendment. But you know what? Hope springs eternal.
Mary McCord: Well and they will maybe have the opportunity to revisit their decision and clarify, because anything as we’ve talked about before the Judge Chutkan does with respect to immunity —
Andrew Weissmann: Yes.
Mary McCord: — is likely to go back up. So if the case remains and is not dismissed after, if Donald Trump wins the election and becomes president on January 20th and orders it dismissed, if the case remains, there will, I think there’s a strong likelihood that the Supreme Court will get to weigh in on this again.
Andrew Weissmann: Oh, yes.
Mary McCord: And could definitely clarify, narrow, what have you, its decision.
Andrew Weissmann: Or expand.
Mary McCord: Or expand it. Oh my goodness, yes, okay.
Andrew Weissmann: Great. Okay. So with that, Mary, so nice to talk to you.
Mary McCord: Same.
Andrew Weissmann: And to our listeners, thank you so much for listening. Remember to subscribe to MSNBC Premium on Apple Podcasts, where you can get this show and other MSNBC original shows. And you can get those ad free, if you subscribe to MSNBC Premium.
Mary McCord: And as always, to send us a question, you can leave us a voicemail at 917-342-2934, or you can e-mail 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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