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Hello and welcome to a new episode of Prosecuting Donald Trump. The last two weeks have been dominated by talk of the Manhattan criminal case. But there are other cases that Trump should be worried about and some say even more worried about, including the main topic for today's episode, the investigation by special counsel Jack Smith.
concerning the January 6th events. There's a lot to get into, so let's turn to it, Mary. I'm Andrew Weissman, of course, and I'm here with Mary McCord.
I'm so glad to be here this morning. Like you said, Andrew, you know, our attention was so focused last week on the indictment, but there was a lot going on, including judicial opinions that are not favorable to the former president. And so we're going to get a little nerdy today. Not that we never otherwise get along. We're going to get a little nerdy. So let's go.
Why don't we start with Mike Pence, because he just could be so important.
to what we call the January 6th case that is being looked at by Jack. So, Mary, what do you make of Mike Pence's decision to just sort of stop while he's ahead or while he's behind? Because, you know, there's this opinion that says, OK, there's a tiny little kernel of truth about your speech and debate clause here.
issue, but you basically have a whole host of things that you still have to testify about. And he didn't appeal that. So what's your take on what's going on? Well, we should start from the premise that even though you and I are going to talk a little bit about the opinion, we haven't seen the opinion because it's an opinion that's secret because grand jury matters. It relates to Pence's assertion and Donald Trump's assertion that Pence should not have to testify in the grand jury pursuant to a grand jury subpoena.
because of reasons of both executive privilege, that's what the former president argued, and speech or debate clause, which is what the former vice president argued. And so when someone challenges a subpoena, they do that in front of the chief judge of the District Court of District of Columbia, which is now Jeb Boasberg, and they do it in secret. The pleadings are secret and the opinion is secret. When you're saying that, it just suddenly reminded me of
When I was litigating things in the same district before the prior chief judge, Beryl Howell, we had also some opinions that would be sealed, secret, because it was a grand jury matter. But there were times when the person who was at issue and the matter had become so public that
And the person whose sort of interest was at stake, whether it was public or not, had talked about it. And it was also clear that there was a grand jury investigation, that the judge did two things. She first issued a redacted opinion that just took out some names, but made it public what her ruling was. Like, so you could read the legal pieces. And then, um,
A second version came out that was almost fully unredacted, meaning you could read the names, because the need for grand jury secrecy was so evanescent at that point. And I just wonder, in this case, what your view is when you have the vice president so publicly talking about this and saying,
because you have the Attorney General of the United States saying there is a grand jury that's looking at this, that we're not in the normal situation you and I have been in, where we would be saying no one knows anything about this. No one knows who we're investigating. You know, I just think that I wonder if Judge Boasberg, the new chief judge, is going to be following that lead of former Chief Judge Howell. Yeah, it wouldn't surprise me because, you know, the reason for grand jury secrecy rules is to protect
It's to protect the investigation so that it doesn't become public too early and allow for obstruction of justice or, you know, because remember, of course, it applies to all kinds of things, including violent crimes. It doesn't just apply to white collar crimes.
you know, helps to prevent tampering with evidence, et cetera. But here, as you indicated, the fact of the grand jury is well known and Pence himself has spoken about the order. And so in many ways, you know, this isn't a waiver issue because Pence himself can't waive Rule 60, which prescribes grand jury secrecy. But the judge, I think, could
follow Beryl Howellsley, Judge Boasberg could, and say, there are things here that are so important to the public interest that the public should be able to know them. And I do think here we have the first time ever, it would appear based on Mike Pence's statements, that any judge has applied the speech or debate
privilege to a vice president in his role as president of the Senate. And so the presidential value of that decision alone suggests that it should be public. And I think that's might as well get to the heart of that. Right. So the speech or debate clause in the Constitution generally
immunizes members of Congress from having criminal liability, civil liability, or even having to testify in the grand jury on matters related to their legislative functions. And so it's so interesting in the case of a vice president like Vice President Pence,
who has two roles. They have primarily an executive branch role as the vice president, but they do sit as president of the Senate, break ties when that's necessary, and more importantly for these purposes, are the designated official on January 6th to actually vote.
open up the Electoral College ballots from the 50 states and count them. It's a ministerial role that's been made even more clear than it used to be by the Electoral Count Reform Act passed last year. But it's still a role that apparently this court opinion found in that role
as the person responsible for opening up those ballots, counting those ballots. That is a legislative role protected by the speech or debate privilege. So, you know, back to your point of the opinion apparently draws lines about what he can testify about and has to testify about and what he can't. It appears that's the line drawn. Now, that could still raise questions in the grand jury. I mean, he may try to interpret
That broadly and the government, I think Jack Smith and his team will try to interpret it narrowly. So there could be disputes even once he is in the grand jury where the parties will have to go again to the chief judge and say, here, we think this is not covered by your ruling or we think it is covered by your ruling and litigate it.
Yeah. And that's, you know, we saw this in Georgia with Lindsey Graham, who is also raising speech in debate. And, you know, one of the standard things that we've seen in maybe less exalted cases, because usually dealing with attorney-client privilege or sort of privileges that are much more routine, is someone goes in the grand jury, and if there's a dispute, there's a judge who oversees the grand jury. And, you know, the way it works is
is if the person doesn't answer, you actually can instruct the witness to go to that judge immediately. And you go, the defense lawyer who is outside of the grand jury room, the defense lawyer is not allowed inside the grand jury room, also goes to the grand jury judge. And that is a sealed courtroom. And it's decided right then and there, unless there's some unusual reason
And sometimes the court reporters, they're reading what happened to the grand jury judge and the judge makes a decision and you go on back and that's sort of how it happens because grand jury litigation is just so quick. And this is one area where because Beryl Howell started as an Eastern District of New York judge,
a USA federal prosecutor, which is where I was trained also. We're very used to that procedure, which was very fast. A judge is right there. If there are issues about specific questions, you could just go to the judge and Judge Boasberg here would be able to say, that's in, that's out, go on back and answer the question or no, it's privileged, you can't do it.
Now, he also carries his own caseload, so it will depend a little bit on his availability. But I imagine in something as significant of this, he will at least try to accommodate if it's possible to do so. What else could he have that's more important? That's right. It's pretty significant. It's pretty significant.
The piece that, you know, at least by the reporting that is out there, the piece that did not prevail was the executive privilege argument that Donald Trump brought. And, you know, this is something he's been arguing about in so many cases now and, you know, including the Mar-a-Lago investigation and including other.
litigation not even involving these criminal investigations, litigation related to his responsiveness, for example, to the House Select Committee's requests for White House and presidential records from the National Archivist. Even there, former President Trump asserted executive privilege, saying that anything that had to do with
advice from his high-level advisors should be privileged and not be turned over to the House Select Committee, and that none of his high-level advisors, including his vice president, should be able to be compelled to testify in the grand jury. But the case law actually on a criminal investigation, the assertion of executive privilege, has been clear ever since the Nixon matters, which is that in a criminal investigation, that executive privilege is
can yield to a demonstrated specific need. And it also yields in other circumstances, including in response to a congressional request, and it yielded in Trump v. Thompson, which is why the records were able to go from the archivist to the House Select Committee, because again, Trump lost there. But here in a criminal matter, I think it's even in some ways
been well established for some time that that privilege can yield when there's a demonstrated specific need. And of course there is here. But let's talk a little bit about that. Some of Pence's highest level advisors, such as Mark Short, have already testified in the grand jury. So why do you think, Andrew, it was so important for Jack Smith not only to spina Pence, but then to, when Pence raised these objections and Donald Trump raised these objections, to go ahead and take this up to the chief judge
get a ruling on it. Keep pushing, keep pushing to be able to put Mike Pence in the grand jury. So I think that raises sort of two really interesting issues, one of substance and one of procedure. And
You know what, why don't I bore people first with the procedure? And it's going to be like, get ready for, if you want to know what happens at my NYU criminal procedure course, which focuses on the Fourth and Fifth Amendment, you're going to get a little taste of it. So you'll know...
whether you're really happy you didn't become a lawyer. And so I'm going to talk about that. And then I'm going to talk about why I think Mike Pence should go into the grand jury and why, if I were Jack Smith, this is exactly what I would have done. But the first thing to sort of focus on is like, why the grand jury? Because if you're a federal prosecutor, you have
I'd say there's sort of three options. You could try to do an interview, which means the person comes with their defense lawyer to your office and their FBI agents or whatever agency you're working with. And you just talk to the person and you interview them and it's entirely voluntary. And that's like a critical component. Many people think that the government has the legal ability to require you to come in to do an interview. And the answer to that is no, you don't.
You have a legal ability to give somebody a grand jury subpoena and require them to go to the grand jury, but you don't have an ability to require a more informal interview. The second way you could proceed is also by interview, but with something called a queen for the day or proffer agreement. And that gives the defense lawyer a little bit of protection for their client, because if there's that kind of agreement...
It still requires the person to be honest. If they lie to you, you can be prosecuted. It also allows you to use leads. So I used to give the stupid example where if the person says, I stole a library book and it's in my apartment, you can actually get a search warrant and find the library book and take it because you can follow that lead. Make derivative use another way of thinking.
Exactly. But it does give you the protection because what you can't do is directly use the statement. So when the person said, I stole the library book, an agent can't just go and testify in front of the grand jury or actually really the trial jury and say,
you know what, the defendant admitted it at this interview. So it gives a little bit of protection if you're going to bring somebody in for an interview. And then the third way you can proceed is you can give somebody a grand jury subpoena and they are required to go to the grand jury and testify absent a privilege, such as what we've been talking about, executive privilege or speech and debate or much more commonly attorney-client privilege, or take the case of Mark Meadows, the Fifth Amendment privilege. Right.
So those are kind of your three options. And I think one thing to just make sure listeners are aware of, too, in the first two of those options, right, the informal interview or the queen for a day, normally the person is going to have, if they have an attorney, will have their attorney with them for those interviews. Totally.
In the grand jury, as you already indicated earlier, your attorney is outside the door. They're not in there advising you on a question by question basis. And so that's another reason why it can be also attractive to the witness to have that first chance to talk with the prosecutor with his attorney sitting there. Exactly.
So very often, if you've got a witness who doesn't really have a Fifth Amendment privilege because they're not really worried about the criminal liability, the defense lawyer is saying things like, why don't we come in for an interview because the lawyer wants to be there to protect their client? I've been in that situation where I've been the defense lawyer. Much more often, I've been the prosecutor and defense.
frankly, a lot of the issue boils down to if the person is really fully cooperative with the government and you don't think they're going to be problematic and you don't think they're going to change their story later, they're just a pure witness, then there's a lot of reason to do it in a more informal setting to make them comfortable, to have their counsel there, and you would proceed that way. In a public corruption case, I think...
I don't know if you agree, Mary, but having done public corruption cases and done large white collar cases,
I think locking people in, in the grand jury where they are under oath and there is a complete written and recorded record of what they have said, and that record is kept not by the FBI, but by a court reporter so that later the person can't say, "That's not what I said," or have a Trump-like conspiracy theory as to everything being doctored is really important.
Okay, so law school's over. Yeah, right. Sorry, everyone. Class is dismissed. But now let's turn to the more fun part. What are we going to get from Mike Pence, potentially? And I'm going to give you my top Mike Pence piece, and then I'll turn it to you for what you think. My top...
Mike Pence piece of evidence is to prove the falsity of a statement that Donald Trump made on January 5th, the day before the January 6th insurrection. On January 5th,
Donald Trump issues a written statement that says the vice president of the United States agrees with me, Donald Trump, that the vice president has the legal authority to not count the votes. And my legal position that he can reject this and send it back to the states, he is fully on board with. So that's his statement.
And Mike Pence, in his book, has already said that he was sort of horrified when he saw that. And obviously, that wasn't his position because just a day later, he doesn't do that.
And we know that— And his own statement, right? Explaining why. Yeah. Exactly. And he spoke to his own counsel, and he has said also, in connection with his book tour, that he had actually told the President of the United States that morning, the morning of January 5th, what his view was. So why is this so important today?
Everything about this case is going to be about Donald Trump's state of mind, mens rea. So this is like, you know, these kinds of cases, everything is about mens rea. What is it that he was intending? And he could say, well, I believe John Eastman. I believe my lawyers. This was, you know, just a dispute about difference of legal opinions.
This piece of evidence would go so far to show that that is, I'm going to use polite term, hogwash. Not exactly a legal term. I decided we've had enough legal terms already. So I just think that's such a key piece of evidence. And if you're Jack Smith, you're thinking that's something you're going to hammer home morning, noon, and night at a trial. Yeah.
Absolutely agree. And, you know, there's so many. I think that's a critical piece, but there's so much else as well. And even if Mark Short and other people have been able to testify as to some of this, I mean, what the vice president knew and conversations he may have had with the president that others were unaware of are so important. And one of those that people are aware of but didn't hear every piece of it is that actually January 6th phone call between Trump and Vice President
Pence that we know from people on Trump's end of it in the room what they could hear of Trump saying calling Pence a wimp and some other choice words when it was appearing at least that Pence was not wanting to do the things that President Trump wanted him to do. That conversation to hear it from Pence's side, my understanding is there wasn't anybody who was a recipient witness to hearing
Mike Pence's side of that conversation. And that's an important one because that is literally the day of January 6th. That is the day that Trump goes out there on the grounds of the Ellipse and riles up the crowd, tells them that they've got to fight like hell, that if they don't fight like hell, they're not going to have a country anymore, and that they're going to march down the street to the Capitol and let their voices be known. And that was sort of the last big
you know, really rallying cry for the people who did attack the Capitol to do so. Not in so many words, but just about as close as you could get. And so that conversation, I think, is important. But even more broadly than that, you know, going back to Election Day and right after Election Day and conversations, we now know something about some of them from the House Select Committee's reporting,
that, you know, multiple people were telling the former president that there was no significant evidence of fraud, nothing that would have changed the election. His own attorney general, Bill Barr, was saying that. Many other people were saying that. So to get Vice President Pence's take on that, I think is important. Yeah, like, just how about asking the vice president, did you think you won? Yeah. Remember, he was on the ballot too. Yeah.
Yeah, exactly. Did you think you won, right? You, vice president, right? Any fraud with respect to Trump obviously would have impacted Pence. So he had a horse in that race for sure. The horse was himself. And so I think that's important. And then this pressure, because part of this investigation is about the pressure of
campaign on Mike Pence, on state officials, on state legislators. And so, you know, not only that January 6th call, but any other conversations. Now, I don't think I went back this morning to try to relook at my notes and what's been reported about that crazy meeting on December 18th into December 19th. This is a meeting when people like Mike Flynn and Sidney Powell and the MyPillow guy and the Overstock.com guy came and met with
the former president and others without really a prior appointment, at least not as was officially known, to try to convince him that he could, you know, that fraudulent electors, their ballots could be counted on January 6th and that the military could seize the ballots and all kinds of crazy stuff that
Trump's actual advisors, not these sort of outside fake advisors, I'm going to say, but his actual advisors, his actual White House counsel and others told him, you know, no, this is not possible. You can't do this. And ultimately, this led to the former president tweeting on the early morning of December 19th, you know, basically to his followers to come on January 6th, be there, we'll be wild. And to my mind, that's the point where he realized, well,
His own legal advisors were not going to provide him a path to do this lawfully. So he's going to at least have to rely on the mob to try to do this for him. But I don't think Pence was at that meeting. I can't find a record of that. Maybe you have. Maybe my research was bad on that. But I'd be interested in what Pence heard about it, what he knows about it. Now, he might not be able to testify at trial about what he heard about. That would be hearsay. But he can certainly talk about it in the grand jury. Yeah, exactly.
More of our episode, Prosecuting Donald Trump, All Eyes on Jack Smith, in just a moment.
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Hey, Mary, I just noticed while we've been on that Donald Trump is reported to be appealing Judge Boasberg's opinion.
So it's a little unclear exactly what opinion that is, but I assume it has to be on executive privilege that he's appealing. And I'll give you my quick non-legal take, since I think we've done enough law school, which is this is not exactly the move of somebody who's unafraid of what the vice president's going to say, because otherwise, why not be, hey, yeah, go on in and hop in the grand jury. It's only going to be good for me.
But I didn't know what you thought. Well, he's certainly never taken that position. He could have never sought to intervene to begin with. But I think that this is going to be as fast of a reversal as we've seen in his other attempts to invoke executive privilege. I mean, the ruling just last week,
coming really the same day as the indictment in Manhattan, the ruling of the just last week. Yeah, just how many times is he going to appeal this? Right, right. You know, rejecting executive privilege for his other advisors, Meadows, et cetera. I don't see any reason why the result would be any different here. And so I, you know, frankly, I don't know why he's wasting his time, but but I guess he guess he is.
Yeah, I mean, you know, this is where it's interesting. It's a little bit of a Hail Mary. But at some point, I wonder how much you factor in just it looks so bad. I mean, if your whole thing to the is that this is all a witch hunt and you don't care. I mean, this is his vice president. But in any event, that's the latest is he's appealing to the D.C. Circuit, Judge Boasberg's decision. But I don't think anyone should.
start clutching their pearls over what's going to happen on this. And I don't even expect a super lengthy delay. I mean, obviously, any delay is a delay of Pence going in that grand jury. But the D.C. Circuit has acted quickly multiple occasions recently, and I think they'll act quickly here, too. Yep, I agree.
So I think a final thing that I think it's worth talking about is, you know, Mary, you and I talked about this issue of like coordination, or I think as you phrased it so aptly, collusion of the different investigations. And we all sort of talked about that we didn't think that was going on. But an issue sort of comes up now that we're focusing on Jack Smith and the fact that Georgia is a subset of
of the January 6 investigation that Jack Smith appears to be doing. And this really goes to sort of like, what do we think in terms of does there need to be coordination on that? Would you want to have coordination? I mean, Mary, when you were a prosecutor, how did you feel about a different prosecutor's office, whether federal or state or Congress or some agency, somebody looking at what you were investigating simultaneously?
Yeah. So, you know, in D.C., I never had the issue of here I am, federal prosecutor. The D.C. prosecutor is investigating the same thing I need to coordinate because I'm
We did it all. The U.S. attorney. Yeah, it's the only place like this. But the U.S. attorney does both federal and local crime. And so we just coordinate with ourselves and, you know, we could choose where we thought we could strategically have the best case law in support of whatever we were doing. If we brought things in federal court and we sometimes did this, we could sometimes pull in a D.C. law case.
charge as well, along with the federal charges under a concept called pendant jurisdiction. But there are times certainly when you add other jurisdictions looking into the same issues. Now, I would say in my experience, that was usually at the federal level. And honestly, it's kind of that inside baseball, you know, your old office and my old office and a few others like
SDNY and EDVA often would compete, particularly for national security cases. I'm shocked. I'm shocked to hear that. We could do a whole episode on that. So, you know, but you do, you work it out just enough to say,
let's not clash, let's not create problems for each other, but you also didn't normally, you know, coordinate every move and every charge or anything like this. And so what I would suggest, and I think another thing that's important to talk about is that we've talked about grand jury secrecy. There are exceptions to the grand jury rules that allow for providing grand jury information to a state prosecutor, for example, and I think this is where we're thinking about
Jack Smith's investigation and Fannie Willis's investigation when evidence that the federal grand jury has obtained, you know, supports a state law charge or is something that the state needs to know about. You can, under the grand jury rules, that with the judge's permission, you know, that kind of thing can be shared. And certainly there might be other evidence that was not acquired through a grand jury. Maybe it was acquired
through voluntary means or somebody providing things without the use of a grand jury subpoena that could be shared between them. Right. And so I would expect that kind of thing to be going on. And I would expect some sort of, you know, general discussions about, you know, what is your expected outcome?
timing, but not, okay, you do this Tuesday, we'll do this Wednesday, you do this charge, we'll do that charge. Because right now there would be nothing illegal about it. But right now you'd have, you know, a lot of people throwing their hands up and saying that word, that collusion word, but collusion for political purposes. And I think they would want to avoid the appearance of that.
Yeah. So one example of the sort of working together versus not working together is essentially the Alvin Bragg case, because what we now know from Cy Vance, who was the district attorney just before Alvin Bragg, is that he had that case filed.
And he was told, or I would say voluntold by the Southern District of New York because they were doing the case. They basically called Cy Vance to say, would you stop and defer to us?
And so that quote unquote request was agreed to. Obviously, Cy Vance didn't have to agree. It's a separate sovereign, but he did. And that's because, you know, if you're a federal prosecutor, you're thinking I'm the most important thing in the world. And my case comes before everyone else's. Some people would say Southern District more than others. But I think we've all been accused of that. Yeah, we have. And so that's sort of an example of, you know, where you do see the downsides of having
sort of simultaneous investigations. And the biggest issue I see there is just the issue of witnesses, like witnesses having to be interviewed two times and saying potentially different things. And that's just not an ideal way to treat witnesses. It's not an ideal way to prepare them. And so that's why you saw that with Cy Vance in the Southern District. Obviously, that all sort of worked out for better or worse. But
That's what I think we're going to be looking at in connection with Jack Smith and Fannie Willis, because I think there will be some effort to coordinate, at least on the edges, as you said, Mary, to sort of deal with some of those logistical issues.
And we know some of those folks have already testified in Fannie Willis's grand jury, the same people Jack Smith wants to talk to. So he's in the position of already being behind on some witnesses. Right. Exactly. Depending on if they said anything in the grand jury or took the vote. Exactly. Exactly.
So, Mary, it's been another great discussion. There is so much more to talk about. So we will be back shortly to talk to people about facts and law and... Maybe a little strategy. Maybe a little strategy. Right. Exactly. So thanks again, Mary. Thank you, Andrew. Thank you.
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