Chapters
Shownotes Transcript
Hello, and welcome back to another episode of Prosecuting Donald Trump. Well, there's lots of news breaking as of late last night, and it's thrown Mary and me into a tizzy because we planned on the weekend what we were going to talk about and had all sorts of ideas. And then once again, Mary, no matter what we do, it's like the more we plan, the more something happens. And so I'm going to talk about what we were going to talk about.
So there's a lot to talk about. Primarily, we're going to spend our time talking about Judge Cannon and what is happening in the Florida case. But we're also going to talk about the larger January 6th case, both Jack Smith's and in Georgia and what the developments are there. And then finally, we'll address the ongoing case.
disciplinary proceedings with respect to two lawyers as it relates to, not so much in and of themselves, but as it relates to the criminal cases and how we see that impacting one way or the other. Anyway, Mary, so nice to see you. Yes, same here. And I do want to say to the listeners,
We really do mean it that we want to get your questions. And in fact, over the weekend, Andrew and I and the producers were talking about and picking questions to answer. And then, of course, news hits, new filings come in. And so it's not that we don't want to spend a whole episode on listener questions, but we also need to address the things that have recently happened. And I will say we oftentimes in what we're addressing,
even though it's timely and it's based on recent filings, is also responsive to listener questions. So we're not ignoring you. So true. So just to set the stage and then Mary, I'm going to ask you sort of your views, but there were sort of two separate things that were happening in Florida. One was sort of a back and forth with Nauta's counsel saying that he could not be
physically present at the so-called SEPA hearing. SEPA, the Classified Information Procedures Act that governs how the courts deal with classified documents. That was going to happen on Friday. And he said, I'm going to be in D.C. and blah, blah, blah, blah, blah, and didn't propose a new date. That all got resolved because the parties basically agreed that they could all be present on this Tuesday. So that is sort of
water under the bridge, other than, I don't know about you, Murray, but I thought one of the things that was really interesting was not just that right upon their filing, Jack Smith's team, it was like a crack response team. They like immediately had their response in, which is, I think, a really good sign that they're going to be responding in real time. But one of the things they said, which I thought was interesting, was, by the way, now does longtime counsel, not his new local counsel, but his longtime counsel hasn't even filed his paperwork yet.
to get a security clearance. So there's a little bit of chutzpah, as they say in New York, that it's like, excuse me, you haven't even filed your paperwork. So it'll be interesting to see. For three weeks, right? And the judge had been very clear that she wanted all counsel to immediately do what they needed to do to get clearances so that this case could move forward. Exactly. So
I think one of the things that will be really interesting as a test of Judge Cannon, a small test, is whether she sort of presses that issue, which is, hey, what on God's green earth are you doing? File the papers. Why is it taking you three weeks? Because this is sort of a classic stall and dodge, which is...
to say, oh, I don't even have clearance yet. Well, that's fine if you filed your papers and it's on the government that hasn't actually done anything. But if you haven't even submitted your papers, that's pretty classic as a way to sort of drag things out. So it'll be interesting to see how much Judge Cannon
at the Tuesday hearing that is now scheduled to discuss SEPA and SEPA scheduling, says to Nauta's counsel, what are you doing? Why isn't it in? Under normal circumstances, Mary, I, as a defense counsel or the government, would not dare to show up without having filed those papers. She basically had ordered him to do so. He's
Yeah. Basically in defiance of her orders. Yeah, exactly. Although I have to say her order was not a model of clarity. Agree. Giving her the benefit of the doubt. I think she was trying to keep the railroad running on time, but her language was- Imprecise. Imprecise. And this is what defense counsel are entitled to do. If it's imprecise, they can take advantage of it because no defense counsel usually wants to pass trial, which gets us to our second issue, which is-
As we know, the court had scheduled a control date for trial in August. Everyone understood that that was not a real date, but it's on the books. And then the government filed papers saying that they would like a real and firm date in December. And they proposed a whole schedule of how to get there. And
The court ordered the parties, the defense, to submit their papers by yesterday as to their position. And those are the papers that caused us to totally rethink what we wanted to talk about today. And those came in late last night. Mary, you and I actually, once again, have not had a chance to talk about this other than now, face to face. So what was your take on the
the Nauta and Trump position in court. So, you know, even though we said we had to rejigger what we wanted to talk about today, I think we always expected this would be a subject. And I think it's not a surprise that Trump's lawyers and Nauta's lawyers are saying we can't be ready for a December 11th trial date. But I think what's more interesting about it is the
things that they put in their motion. And essentially, they're making their motion not just in response to the government's proposed scheduling order, but also under the procedures that are laid out in the Speedy Trial Act. Because as we talked about several weeks ago, part of the reason the judge originally sent that August date was because the law, the Speedy Trial Act, generally says you need to go to trial within 70 days of
indictment. But there are many, many reasons that that can be delayed or told. And some of those are the filing of motions, which told the speedy trial clock, but others is kind of an interest of justice rationale. And so when the government came in and proposed December 11th, they were proposing that also as this is a reasonable schedule. And here's why the interest of justice under the speedy trial act support this schedule. So
Mr. Trump and Mr. Nod are coming in now and saying, we need an interest of justice continuation. We can't possibly be ready by December 11th. And they don't even want the court to set a trial date at all. They don't suggest any date either before the election or after the election. They essentially say there's so many issues here. There's so many legal motions we'll be filing.
They're not in great detail about what they are, but they give some hints. So many legal motions will be filing. This is very complicated because of the Classified Information Procedures Act proceedings that we'll have to go to. Already, the discovery that the government has proposed is over 400,000 documents, and we have...
Barely even begun to get through that. In addition to that, 57 terabytes of surveillance video, essentially for all of these reasons, including, and I think this is what's maybe some of the most interesting, including that this is a prosecution advanced by police.
A sitting president against his political rival. And that's something else they say is a reason that this should really be put off indefinitely because they couldn't possibly be expected to have a jury sit in a trial.
Okay.
Of course, since we've yet to figure out a place where we disagree. Obviously, they were going to try and put this off as long as possible. There's a famous defense lawyer, Edward Bennett Williams, who has said that when you're a defense lawyer, an adjournment is the equivalent of an acquittal. Meaning, your job is to put things off. Delay, delay, delay. Exactly. And the government's job is to fight that. So this is a real test of
of Judge Cannon as to what she is going to do in terms of the trial date. And it's a real test also because she has such broad discretion on this issue. It's not unreviewable, but it's hard to appeal this. And so it'll be really interesting to see what she does.
So I had a number of thoughts. One is just to be fair to the defense here and leaving aside for a moment what they wrote, which I think is very problematic, is they have not seen the classified information yet. And to have to agree definitively to a time schedule when you don't know the scope of what you're going to see and what kind of arguments you will have
is a hard position to be in. And so I think it's not unreasonable to say whatever we agree to, whatever is set by the court has to be without prejudice to our coming back once we see that information, because there might be material there that causes us
to have to rethink what the time frame is. That would probably be the most responsible thing. Including filing new motions, right? And things like that. Exactly. Because they haven't seen all of that. So I do think that would be a fair point. That's, of course, not what they said. A theme here was definitely Biden versus Trump. Of course, there's no evidence, zero evidence that this is Biden versus Trump, because even
even if you thought Trump was going to be the Republican nominee, that hasn't happened yet. So that is a presumption. And there is zero evidence that Biden is responsible for this prosecution. In fact, he has said he had nothing to do with it. In fact, Garland didn't even bring this. It was Jack Smith, and Jack Smith brought it after a grand jury found that there was probable cause. So that is sort of a false dichotomy.
The other thing that's in the filing that I thought was sort of useful in addition to this theme of Biden versus Trump, even though, again, that's false, just to be clear, is this idea that the Presidential Records Act somehow informs and is challenging with respect to this criminal case. The Presidential Record Act just is a red herring here, unfortunately.
and has nothing to do with the first set of charges about the illegal retention of national defense information.
But I thought a second part is that studiously avoided in this filing is anything about the obstruction charges. It's as if it didn't happen because those are so damning and there's just no defense being put forth on that. And it's as if they are not in the case. And so that stood out to me. And I just think if you're the government, one of your jobs is...
When the defense is saying, look over here, look at the birdie, your job is to bring the jury, bring the judge back to what the charges are. And then the third point is I was struck by the writing and tone of the brief, and it showed some client control in that
There wasn't footnotes about the polling that shows that Donald Trump is doing so well. There wasn't vituperative language. It was on the face of it, a respectful language.
filing. But to me, there is a certain amount of lipstick on a pig quality to this, which is it superficially reads like a legitimate filing. But when you actually go beneath the surface just a little bit and scrape just a little bit off, it's no different. It has that veneer, but it still says this is a Biden versus Trump squabble. It still raises this
BS about the Presidential Records Act. That's a term of art. It's another acronym. And we should pause there just to bring listeners up to speed. We've talked about it before, but the Presidential Records Act is an act that was created to make it clear that the records of a president's time in the White House about any official duties, including ceremonial duties, are not the president's own personal records. They are the property of the government and really of the people. And that's
you know, how this whole case got started when the National Archives said, it appears that you took pretty much all the records when you left the White House and we need to get them back. Trump has tried to create this defense of under the Presidential Records Act, I alone get to designate what's personal and what's a presidential record. And I made this all personal. Well, there's all kinds of reasons why
why even factually it's clear he didn't do anything like that. But legally, he doesn't get to do that. The definition of what presidential records are is in the statute, and it does not include things that you do in your official capacity, in your ceremonial capacity. It's, you know, things like photos of your kids. Those are personal. Seriously, I was thinking about this, Mary, which is under his reasoning, he could literally go to
the Federal Reserve and say, you know what? I actually decided that all of this money and the gold bullion in Fort Knox is actually personal. So I'm just going to take that because under the Presidential Records Act, I have deemed this personal. So I don't have to deal with the Saudis anymore because I'm just going to take it
from the government. I mean, it's just not how the Presidential Record Acts work, which is that you can just suddenly be like, oh, I just deem this personal any more than he could take down paintings from the White House and say they're personal. I will say that one of the things that was disturbing was this idea that although they didn't pick a date, as you said, Mary, they basically say, by the way, it'll be very hard to pick a jury when
while the presidential election is pending, meaning you need to put this off until after the presidential election, as if that's going to make it any easier. I mean, this is one where it's like, listen, if that's the standard, it's like you can't do it now and you can't do it later. That's like a trick box, which means never. But also it's basically saying, can we please wait and see if a Republican wins the White House? Because if it's me, I'm going to end this case. And if it's a Republican who's an all-sympathetic candidate,
to my base, I'm going to either get a pardon or that person's just going to end the case. So please put it off. And what's missing there is
One, if you are actually innocent of this charge, you would think that you would say, I want an immediate trial. I want a fast trial. Exactly. I want to clear my name. Now, he's a defendant. He's entitled to say, I want sufficient time to prepare. But I mean, it's so inconsistent with innocence and the idea that you are running for office and you want to
to be able to clear your name, as opposed to run on being a victim, something, Mary, I know you've written a lot about. But to me, this is like, I never want my day in court because I'd rather just deal with my own made-up facts and my own claim of being a victim rather than have the public see that
what the evidence is and a jury see what the evidence is and then live with those consequences. And that, frankly, is what the American public is entitled to so long as it's done consistent with the defendant's right to prepare for trial. That's right. And...
As we talked about before, there is a lot of preparation here. So it's not surprising or unfair that they feel like they need more time. But it also is a reality that Mr. Trump is using this as a fundraising mechanism. And for him, it's advantageous to be able to continue to say, I'm being persecuted by my political opponent. Please send me money. And we know that people have sent that money.
I think what's a little bit disturbing, as you were just indicating, you know, we talked about one of the challenges that the
attorneys say that they anticipate making is some sort of motion to dismiss this entire case. Mind you, and we should be clear about that, a lot of what they are saying in this motion for a continuance of the trial is that we think the motions we bring are going to result in the dismissal of this case. But what they list are really borderline frivolous
subject matters, right? The Presidential Records Act as a motion to dismiss this case? No. As a judge said to the Eastern District, I have two words for you. Right. Denied. And then they also suggest that they're going to challenge the authority of the special counsel to bring this case. And so they're claiming there shouldn't be any, quote unquote, secret evidence introduced in this trial. This is a trial where the
More than 30 of the counts are about the mishandling of national defense information. Mary, I love this. You're accused of having top secret information compartmented, top secret information, and you're telling the judge, hey, we just want this all out in the public. So there's a lot of just BSE type of claims in here, notwithstanding that I 100% agree with you.
I'm a bad influence on you, Mary. And there's also some word salad in here, too, like very long sentences about needing time to develop further clarity as to the full nature and scope of the motions that will be filed and blah, blah, blah, blah, blah. So anyway, I think legit to say we can't agree to December 11th. We haven't even seen the classified information. We're just getting started on the discovery process.
but not legit to suggest that this is going to get thrown out of court on some of these baseless motions. Yeah, totally agree. So all eyes are on what is going to happen on the 18th at 2 p.m., which is the new SIPA scheduling conference date
Obviously, the judge could rule on the papers now with respect to the trial, but she could also hear from the parties next Tuesday since there is a date to be heard. I do anticipate that the government will file something in response to what was filed late last night because that just seems their MO is to be very much like we are really on top of this. And there's another interesting piece of this, which is that
essentially, one of the things that they're saying this motion to is that we're just too busy, all of us attorneys. We have so many other things and there's such a huge volume here. And right now, there's only two attorneys signing for Mr. Trump and two for Mr. Nada. And let's put aside Mr. Nada for a minute because if necessary, his trial could be split off from Trump's and done some other time. But
You got to, I think, ask yourself, can a judge essentially say you have to just get more attorneys, Mr. Trump, in a normal case? I'd say no. A judge, you know, you can't sort of make a defendant...
incur the expense of additional attorneys just so that they can get through the discovery to go to trial faster. But it's interesting when you're talking about somebody like Mr. Trump, who is spending lavish amounts of money on many, many other things and certainly has the capacity to hire additional attorneys, assuming any are willing to work
for him. And a case like this is going to require it. So it's interesting to me because talking about the volume of discovery and the inability to get through it sort of raises this question of, have you adequately staffed yourself up to defend yourself? And what amount of pressure is a judge willing to put on a defendant like Mr. Trump to do that? I think a judge has limited discretion on that. But I do think a valid counter argument for the government to raise is it's not like this indictment took...
That's true. Donald Trump by surprise. This search happened in August of last year. So, yes, there are specific things that are more recent. But, I mean, my God, this isn't like you weren't thinking about your defense. I mean, Donald Trump himself gives a defense du jour. I mean, he's been thinking about this constantly because he's had to come up with all sorts of cockamamie, another term of art, for a defense. Yes.
More prosecuting Donald Trump. All eyes on Judge Cannon in just a moment.
As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall. Extraordinary levels of enthusiasm from Democrats for the fight ahead. The Democratic National Convention. Special coverage this week on MSNBC.
This is a really good way to move on to what I'll call the January 6th cases. And we've talked a lot about sort of Jack Smith's case being the sort of broader and Georgia being the subset of what
could happen with Jack Smith's case. But there have been developments on both fronts in terms of Fannie Willis impaneling a grand jury. That, to be clear, by the way, was anticipated because of the way in which the Georgia grand jury system works. She had said, I'm anticipating deciding the issue of whether to bring charges this summer. And and
And her timeframe was very much dictated in terms of the impaneling structure in Georgia of a grand jury. Just to remind people, there had been a special grand jury which heard evidence but did not have the power to indict. It had the power to recommend. And now there is a grand jury that is being impaneled. They will have the power to indict. So this is in some ways...
a necessary but not sufficient step, obviously, to bring charges. But it is certainly one step closer. But just because you have a grand jury and panel doesn't, of course, mean that the prosecutor is going to recommend charges or that a grand jury will vote them.
But if I was a betting person, I would say, yeah, that's that is where we're going. Fannie Willis has been signaling it, right? She said to all the judges, you know, during these first two weeks of August, you know, would you maybe not have as many proceedings in the courthouse? And she's been talking about security for the courthouse, etc., etc.
One of the interesting things I think about this grand jury, the one that will have the power to indict, is will Fannie Willis and her team put on actual witnesses to testify or will they essentially read the transcripts of the testimony before the special grand jury? Because they've already amassed this power.
enormous amount of evidence. And it is not atypical, just so listeners know. Sometimes you've been working, investing in a case in front of one grand jury, that grand jury expires, you have to start over with the new grand jury. And so you don't recall those witnesses and you just read their transcripts. It's not the most fun thing to do, but it works. Exactly.
Yeah, it works. And you can actually say to the new Grangers, if you want to hear from the witnesses themselves and you want to assess their credibility by having them come in, you can...
request that, and that can be done. And sometimes that happens, sometimes it doesn't. But it isn't required just because you're calling a new grand jury that you have to recall all of these witnesses. They can hear what's called hearsay evidence to bring that in. So again, we're going to be hearing from Fannie Willis, according to her, probably sometime in August, which raises the issue of Jack Smith and his January 6th case. Just to be clear, my view is that
He is going to subsume, if he brings a case, the Georgia allegations. My view is like, why would you leave out something that's very strong? And you could end up in a situation where you have federal charges that include some of the Georgia material and state charges that have the Georgia material. Just knowing Jack Smith, I just think he is going to, if at all humanly possible, want to bring his case forward.
at or around the same time. And part of that is that I think he's going to want his case to go first. And that's just not because, Mary, you and I, as former federal prosecutors, always want your federal case to go first. But I think here, there's sort of an additional reason. You want the strongest case to go first. It's going to be much worse for Jack if he has to go
to trial on a case which, for whatever reason, either is lost or has a hung jury. And so you'd want your federal case, which is stronger, to go first. And obviously he could bring his
case second in the sense of he could indict it second and it still could go first. But it's just a better look if it's brought earlier than the state case to then say, well, this case was first in time and so it should go first. And it's not totally clear to me that Fannie Willis would even object to that as a way to proceed. Yeah.
One other thing before I turn it back over to you, Mary, is there's been some reporting which has driven me crazy, which is, oh, I think Jack Smith is just writing a report. That's not clear that he's going to even indict.
Well, look, I'm tea leaf reading just as much as anyone else, but that's not happening. I mean, as sure as I am sitting here, yes, he might write a report with respect to certain people that he decides there isn't proof beyond a reasonable doubt. But that is going to be something he thinks about down the road, not anytime soon. And for those people reading that in the press,
That could be right. I strongly disagree. Yeah. Well, you know, this comes back to our view of one kind of a report is called an indictment. And yes, you're right. That is the kind of report he is thinking about. That speaking indictment that tells the whole story of the conspiracy to overturn the election. That's a report.
That's for sure. It's a grand jury's report. So yeah, I hate engaging in the speculation, but boy, they have done a ton of work, including putting people in the grand jury. And you know from the Mueller investigation, Andrew, that there are a couple of ways you can interview witnesses. You can just have them come in and do an interview that is voluntary, that is not in front of a grand jury, or you can subpoena them and have them testify in front of the grand jury. And the Mueller investigation included both of those things. And I think
the Jack Smith investigation has concluded both of those things. And sometimes they had to use the grand jury because a person would not come in voluntarily, but they went to great efforts to make sure people testified in that grand jury, including going to the chief judge when they,
Various witnesses raised issues like executive privilege or attorney-client privilege, etc. They went to the chief judge and appealed that. So all indications are is that this is an investigation that is done to bring charges, bring indictments. Now, obviously, you guys in the Mueller investigation also brought charges. Certainly nothing against Mueller.
Mr. Trump for legal reasons, including the opinions of the Department of Justice that you can't indict a sitting president. But this is different, and it certainly seems to be pointing toward charges. Now, who all will be charged and whether that includes Mr. Trump, that remains to be seen. Perfect segue, because there are two lawyers who are facing disciplinary proceedings, John Eastman and Rudy Giuliani.
John Eastman, as people recall, was previously, I'd say, credentialed lawyer and clerked on the Supreme Court. And he had this theory that the vice president of the United States didn't have to count the certified election votes. And Judge Ludig, who Mary, you have dealt with a lot, was counseled to the vice president and just said, I'm going to do it.
Absolutely not. But for legal reasons, for practical reasons, it just didn't make any sense that one person could do that. He was also, John Eastman, the architect, really, of the fraudulent elector scheme, the scheme to have the electors in the swing states go ahead and meet and vote for Trump and send those ballots to former Vice President Pence. And that was his plan.
Right. He was one of the main architects of that. Yeah. And that to me, that was orchestrated by the Trump campaign down. So he's facing disciplinary proceedings. There was a hearing. There were witnesses called about that. That is pending decision. Rudy Giuliani is facing disbarment in not one
but two separate bars in D.C. and in New York. And the D.C. decision, that is, it's what I'll call a preliminary decision, is that they recommend that he be disbarred. And it's in connection with his conduct in Pennsylvania in bringing a fake police
election claim and makes it absolutely clear, according to this opinion, that he engaged in misconduct and had no good faith basis for the claim and the relief that was sought. One of the things that I thought was really interesting and why this sort of relates to the case is not just because both of these lawyers could themselves face criminal charges for their conduct,
But also on page one of the Giuliani-DC preliminary decision, it says that Donald Trump waived the attorney-client privilege with respect to communications with Rudy Giuliani. What is the import of that? It means that for Jack Smith...
All bets are off in terms of he doesn't have to go to a judge as he went to Beryl Howell to get a decision about the crime fraud exception so that Jack Smith could hear what happened with Mr. Corcoran and others. And that obviously was very central to some of the key proof in the documents case. Mm-hmm.
But with respect to Rudy Giuliani, once you have a waiver, that is the client agreeing this is something that you can now talk about. It means that the communications are now fair game for whoever wants to ask about it. You can't say I'm waiving, but only as to the D.C. bar proceeding. But by the way, Jack Smith, you can't get them.
So that's not allowed. Yeah. And I think we were both pretty surprised to see that in that preliminary opinion from the D.C. Bar Council. And that could have impacts ultimately, not just on what Jackson's
Jack Smith is talking to Rudy Giuliani about, but also impacts later in any potential case if the president is really trying to talk about, I was relying on the advice of counsel and Jack Smith being able to get right in there and talk to counsel about that advice. Exactly. And Rudy has been reported to have said this was
a theory in looking for facts to support it. So that's a really bad statement if you are the client saying, I want to rely on the advice of counsel to have your lawyer saying, well, here's the theory. We just don't have any facts to support it.
that's not going to go very well with the jury. I think it also bears mention of what is the impact of relying on counsel. How does it change if all of you were part of a conspiracy, essentially, to defraud the government? And also, how does this impact, like,
proof of your intent. But again, I think if everyone's part of the same conspiracy, that advice of counsel defense gets a lot weaker when there's no objective basis, for example, for saying that there was fraud in the election significant enough to change the outcome. In other words, you can't manufacture fraud
Seek advice from your lawyer and then say, I didn't do anything wrong because my lawyer told me that I could keep saying that there was fraud in the election. So, Mary, that's free legal advice for everybody out there in case you're thinking of doing this. This is what you can't do. So, Mary, we're all going to be on tenterhooks to see the government's filing with respect to the trial date, their response to what happened last night, and then...
Stay tuned with respect to Judge Cannon and what she does there.
Big, big decision for her on what she does. Big test in terms of her objectivity. So this is, I think, the first real time that we will have an opportunity to see how she comports herself and whether she turned over a new leaf in this phase of the investigation. So can't wait to see that. And also can't wait to talk to you, Mary, about your take on what happens. So stay tuned. Till next time.
If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.
The senior producer for the show is Alicia Conley. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. Bob Mallory is an audio engineer. Jim Maris Perez is the associate producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.
Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.