BONUS: MSNBC Special with Ari Melber, Andrew Weissmann & Mary McCord
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Hello, and welcome to a bonus episode of Prosecuting Donald Trump. I'm Andrew Weissman, and as always, I'm here with the great Mary McCord. Well, over the weekend, Mary and I joined Ari Melber for an MSNBC special.

We talked about the truly unprecedented time in political and legal history. Hi, Andrew. Yes, we talked about the indictments Trump is facing. We also talked about Trump's intent when it came to January 6th and the entire scheme leading up to January 6th. We talked about Trump's defense strategy and what all of this means for the prosecution. And Mary, we talked about Trump as a sort of stress test for democracy.

And we had a guest who I think really helped put this into historical context. So without further ado, let's take a listen. Welcome to our MSNBC special prosecuting Donald Trump at this pivotal and really extraordinary period of these multiple indictments and looming trials of the former president, current candidate and defendant, Donald Trump.

I'm Ari Melber, and tonight our aim is to go beyond even the many important daily headlines and take a wider look at the stakes and criminal justice priorities for these unprecedented cases. To do that,

I am joined by DOJ veteran, former Mueller prosecutor and MSNBC legal analyst. You see him right there back at work. Andrew Weissman. We're teeing off his expertise and legal analysis in his MSNBC podcast with Mary McCord, who also is with us tonight. That is right here on your screen prosecuting Donald Trump. Before we get in any further, I want to actually begin with a short opening question to you that I think is on a lot of people's minds in all fairness, which is can defendant Trump get back

a fair trial with these primaries approaching.

Great question. I would broaden that question out. I would say, can the government and the defendant get a fair trial? And I think the answer to that is yes. That is going to put a lot of pressure on the judge in the D.C. case, in the Florida case, in the Manhattan case. It's remarkable that we're talking about three separate criminal cases and maybe even a fourth case. But it's important to know both sides are entitled to a fair trial. So you have the defendant now talking a lot about

about the proof and his views of it. But ultimately, what the judge needs to be able to do is make sure that a jury is going to turn all of that noise off

and is going to try and make sure that jury hears just what's going on in the courtroom, makes its decision based on that. I love the way you put that. It's interesting. I mean, we lawyers, we can get almost overly positive or nostalgic about the system when it works, but you're reminding everyone, yes, both sides, fair trial and actually fair.

I think we could all agree on a nonpartisan basis, tuning out the noise and whatever's out there and focusing on facts and evidence is a good thing. And by the way, if that leads to an acquittal or it leads to a mistrial, that's the system. But let's look at that evidence. Absolutely. The hard part

in a case like this where it's so prominent and I've had to deal with this is the juror who is less than candid who tries to get on a jury. I'm sure most people are sitting there going, what do you mean a juror wants to be on a jury? Most people don't wake up in the morning and think, I can't wait to do jury service. In a high profile matter, that is the biggest concern that the government's going to have and the judge is going to have is making sure that they've weeded out those people because you want a completely...

sort of neutral, dispassionate jury. A really good example of that is in the Manafort case. The one juror who, after the trial, spoke, said she was a MAGA Republican. She had a red MAGA hat, and I love this. She said, I left my hat in the car.

And that was just a great sort of symbolic way of saying, I had an oath of office and I did my job. Now, she she voted to convict. She had a very cute line afterwards. She said, by the way, let me just give advice to President Trump, who was the president at the time. Paul Manafort should not be pardoned.

So she was able to just act out of principle. And that is what you're looking for, is somebody who, if the government has not proved its case, is going to say, you know what, not guilty. They have not proved the case beyond a reasonable doubt. And if they have, they're going to do what the judge instructs. That's so well put and fascinating drawing on. Of course, you're talking about someone who shared the former president's 2016 campaign, not nobody. And now let's turn to these mounting legal headaches for Trump facing criminal trials in California.

Investigations from three prosecutors in four probes, at least, the New York DA hush money scheme which we've been following. Special Counsel Smith overseeing both the classified documents probe and the probe into the coup. Then there is what everyone's been talking about very recently, Georgia's DA reconvening the grand jury in that long-running election interference probe. This is unprecedented. Trump's alleged criminality examined in at least four jurisdictions, and these alleged crimes occurred before.

during and after his presidency. The trials for at least some of these indictments will likely occur as Trump is trying to win the presidency again during the campaign, as we were just discussing. And by Election Day, there may be at least one jury that has reached its verdict. If convicted, and if the Republican Party were to stand by the unprecedented prospect of running a convict as its nominee, then the voting public will decide how much that is a factor in their choice for president in November 24.

We are living through these unprecedented times. And it's a challenge for prosecutors as well, with the most high profile defendant in history trying to juggle the demands of these jurisdictions and the realities of an external voting calendar. And now let's bring in Congresswoman Zoloft of California, a member of the January 6th committee. Andrew. Congresswoman, thank you so much for joining us tonight. Happy to be here.

So one of the people who's gotten a lot of attention recently with The New York Times running a front page story is Mr. Chesbrough. I know that you, as part of the January 6th committee, deposed him or interviewed him as part of that committee and you were present for that.

And, you know, he seems to be somebody who, while everyone's focused on Mr. Eastman, he seems to have been quite a strong participant in the fake elector scheme, writing three different memos. And I guess I want to start with since you're somebody who actually sat there and listened to him, what were your impressions of the substance of his testimony, his demeanor? What did you make of him?

Well, I think he's a true believer. I mean, he wrote actually four memos, three that the committee had and one that we didn't, outlining really the plot to overturn the election. You know, I don't know the man, but he certainly was focused on overturning the election. And I think my belief is he will be held criminally to account for that.

So one of the things that you just mentioned was this idea that he wrote four separate memos, but that the committee only had three of them. What's the reason for that? Is it because it was privileged that somebody didn't turn over what they should have turned over to the committee? Because that memo that's referred to in the indictment and the New York Times seems to have been able to obtain it just recently,

seems to have been pretty devastating, if the reporting is correct, where Mr. Chesbur really lays out this scheme, as you mentioned, to overturn the election, that that was the real goal of the fake elector scheme. How did the committee not have it? And I don't mean that because they didn't do their job. I meant in terms of what happened in terms of it not being turned over to you.

Well, I don't know the answer. I don't believe it was in any kind of privilege log, but we were not provided the memo. The other memos were similar, but not as direct as the memo we did not receive. And I think it's quite damning. This was an intentional effort to create fake electors and to overturn the election, to have the vice president

recognize them on January 6th instead of the real electors or to somehow send them back to the states when no state had asked for that. It's part and parcel of this multifaceted plot.

essentially a coup. Yeah. So one of the things that has come up lately is a sort of defense du jour that this was only seeking a pause of in some way as if that's somehow only a mini coup is better than a full coup. And I was wondering what your take was on this idea that it's just a

pause that was being sought. You have such deep experience in terms of being a congresswoman, but also before that in terms of law enforcement. What's your take on that possible defense? Well, I think it's ridiculous. I mean, for one thing, I understand that Vice President Pence has publicly said it was not even true. He was asked to reject. And certainly that was what, even after the riot,

There were calls into the Senate asking them to reject, to send it back to the states, that the states wanted them back. That's overturning the election, to say that we're not going to count the votes on January 6th as the Electoral Count Act and the U.S. Constitution provides is overturning the election. You know, these folks are grasping for straws.

And Congresswoman, given everything that's happened, I want to show a key part of some of the testimony your committee gathered. Let's take a look. In the days leading up to the 6th, we had conversations about potentially obstructing justice or defrauding the electoral count. I overheard the president say something to the effect of, you know, I don't effing care that they have weapons. They're not here to hurt me. I'm the effing president. Take me up to the Capitol now.

It jolted the nation, people who care about reality. We've read that it jolted DOJ. I'm curious, given what we know now, as many are waiting on an even possibility of a fourth indictment, potentially out of Georgia and everything we've seen, what you think the history should say about this committee? We mentioned your Watergate experience, because with no disrespect to the committee or Congress, as Andrew knows well, Justice Department doesn't care a lot about what members of committees...

conclude, surmise, or think even as a co-equal branch. But the DOJ is supposed to care a lot about evidence, however it comes out. It could be a leaked video, could be the voluminous testimony, some of which we just showed, could be independent reporting. It seems to me, I'm curious for tonight's record what you say, that ultimately the special counsel determined the evidence of

the meticulous work this committee did, not its conclusions per se, were relevant, if not determinative.

Well, I'd say so. If you read the indictment, it is basically the committee report. They did not indict on the incitement referral that we made. And I think that's probably smart. It's complicated. And if you want to get a conviction in a very clean manner, the other statutes are easier. But as Mitch McConnell said right after the impeachment,

Practically and morally, Trump was responsible for the riot. And although he did not vote to impeach because Trump was no longer in office, he did point out that Trump should be held accountable either under the civil law or criminal law. And that's what's happening here. Congressman, one of the things that the committee did when you were done with your work is turned over so much information

to the public, not just to DOJ, but so everyone could see it along with your report, which is really commendable so everyone can see the data for themselves. I did have a question because there's certain transcripts, and I am that much of a nerd that I focus on this stuff. There were certain transcripts that were not turned over publicly. So, for instance, two senior people who worked for Brad Raffensperger, that wasn't made public publicly.

I think Judge Ludig's transcript was not made public. And I was wondering if you could tell us why that is, why certain transcripts were not made public. Well, we had four terabytes of data that is available under the GPO.

Honestly, it was a mad scramble to get this report done in the closing days of December with members hunkered down in Washington personally doing the editing. We did have a couple of law enforcement sensitive matters that we sent for review to both the White House and also DHS, urging them to

decide how the archives should handle these materials. And that was something that we thought was prudent. And I don't know that there's ever been another committee

that has provided the information that this one did. Ordinarily, you know, there'll be footnotes, but you never have the information that's footnoted. We put out virtually everything we had. We never coordinated with the Department of Justice because that wasn't our role. We're a separate branch of government. But we gave everything out, I believe, to the public.

Of course, the Department of Justice can't rely on our transcripts. They have to do their own investigation, have their own interviews under oath and the like. But I think we laid out the evidence that was very important for them to reach their conclusions. Yeah, really striking to hear that from you. On the serious note,

You're describing the indictment as really partially the blueprint from the report is striking, and you're so versed in that. On a lighter note, Congresswoman, tonight we learned that of the four or five people in the world who've tracked which of the many transcripts were publicly released or not, one of them is here, because I just don't think a lot of people are in the weeds like that. He's got his gardening gloves on. Congresswoman, good to see you.

Well, good to be seen. And thanks for letting me participate. Absolutely. Appreciate it. Appreciate your time. Let me tell folks what's coming up. We will be joined by Andrew's co-host on this Prosecuting Donald Trump podcast. That's Mary McCord here for a large portion of tonight's events. We're excited to have everyone. We're also going to discuss the criminal intent issues and this so-called Seinfeld Costanza defense. It's a big show and a lot coming up with all eyes on all the probes, including Georgia. We'll be right back.

MSNBC's Lawrence O'Donnell. I grew up in the front row of the spectator section in courtrooms. My father was a Boston cop who became a lawyer, and he had me in the courtrooms all the time. And I was learning literally the rules of evidence when I was in high school. My first book was about a case that went on for seven years. And so everything that happens in courtrooms makes perfect sense to me, and my job is to try to make it make sense to an audience. The Last Word with Lawrence O'Donnell.

weeknights at 10 p.m. Eastern on MSNBC. Defendant Donald Trump is accused of deliberately committing election crimes. Indeed, the word knowingly used 36 times in that indictment describing the criminal intent pushing the conspiracy and election lies. It was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government.

The indictment lays out that evidence to show that Trump knew his claims were false. When Trump found out Pence wasn't going to stop the certification, he even said, "You're too honest. If you're on the other side of that statement, presumably you would be the liar."

And during the meeting with his military advisor, Trump said the presidency was over. You're right. It's too late for us. We're going to give that to the next guy. Also secretly told others that when Sidney Powell was pushing some of her conspiracies about why Trump really won, she sounded, quote, crazy. Then there's all the witnesses who told the committee, as we were just discussing, how Trump knew he lost a preview of what might become star witness testimony at trial.

He was looking at the TV and he said, can you believe I lost to this effing guy? The president says, I think it could have been Pompeo, but he says words to the effect of, yeah, we lost. We need to let that issue go to the next guy, meaning President Biden. So he had said something to the effect of, I don't want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don't want people to know that we lost.

So that's all pretty damning. And again, that's from inside the team. But we've heard this defense that, well, Trump did believe the election was stolen from him. And this has been kicking around, not so much among legal experts who know that the DOJ doesn't even have to prove that Trump knew he lost, although they include that evidence, as I've told you. It's not any kind of legal requirement, but it's a variant of what sometimes from the Seinfeld era is called the Costanza defense. The idea that, well, what's in your mind is determinative.

Just remember, it's not a lie if you believe it. Which is technically true. But what Trump did or didn't believe isn't the point. You could believe that the bank has your money.

and you might even pass a lie detector test on that because of your own confusion about which bank you bank with or where you put your money. That will not be a defense to robbing the bank or to committing a conspiracy, for example, conspiring with other people to do so. A federal judge made that point. Take a look at some evidence from a recent trial of this Jan 6th rioter. This was after he stormed the Capitol. This photo is something many people did, which is tell on themselves. The rioter was claiming at trial that he still,

To that day, believed the election was stolen. Costanza, the judge found him guilty anyway, was convicted, ruling that even if the defendant genuinely believed the election was stolen, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions ultimately serve a greater good does not negate consciousness of wrongdoing.

In other words, you want to get really legal with it, you'd have to get all the way out to an insanity defense where you are much more troubled. The fact that you are mistaken and acting on your mistaken belief wrongly doesn't help you. So if you break into the bank or the Capitol, you might have your own justification. People have a lot of justifications for things they do in life. But you also know when you clash with the police or sneak past the barricade or try to go back to the bank safe,

or attack the teller or any number of hypotheticals, in doing so as a sane individual in the real world, you are clearly exhibiting that wrongdoing, that corrupt intent. That's the standard under the law. The judge also wrote that the First Amendment doesn't give anyone a right to obstruct or impede Congress. If we were being lighthearted, we would say, duh.

But of course, from Seinfeld to duh, to how serious these issues are, we also have to take a step back and remember there are real people committing real crimes with this kind of crap. And that the people around the president or former President Trump are kind of trying to mainline this to make you believe something that's false, which kind of is the theme these days. When we come back, Mary McCord and Andrew Weissman are here. We'll be right back.

Welcome back. I'm Andrew Weissman. And I'm Ari Melber. And joining us right now is Mary McCord, the former acting assistant attorney general for national security at the Justice Department and the co-host with Andrew Weissman of MSNBC's podcast, Prosecuting Donald Trump. Welcome. Good to be here. We just went into it. What is the criminal intent standard for defendant Trump in this coup case?

Well, you know, all criminal charges, almost all require there to be some knowledge or intent on the part of the defendant. The criminal law really eschews the idea of strict liability. Liability for conduct that you don't know is unlawful. But that's very different than saying that his firm will

belief that the election was stolen is some sort of get out of jail free card, right? Because there are lots of things in this indictment that don't require that he engaged in conduct that he engaged in that went well beyond what you're legally allowed to do when you firmly believe you did not lose the election. So let's go to court. Let's dig into that with the bank example. A lot of people have firmly held beliefs.

Let's say you firmly believe that the bank is evil or that its federal deposits are the fruits of an evil scheme.

American government and regime. Let's say you pass a lie detector test, that you have that firm belief that it's illegitimate. Would that be an intent defense against knowingly going into the bank and trying to steal the funds? It might be a not guilty by reason of insanity defense, but it would not negate the intent for what you've done because you don't have the right then to go take it just because you think the bank is evil. You could even have a more simple example. Let's assume you think the bank miscalculated the interest.

on your savings account. And so it's not even that the bank is evil. They're just wrong. And you've asked them for it and they've and they've disagreed with you. But you firmly believe your math is right and their math is wrong. You don't get to just go hold up the bank. Right. And so that's exactly, I think, what we're talking about here. When you even if Mr. Trump did believe and I think there's a

abundant evidence in the indictment to show that he could not have reasonably believed that there was fraud significant enough to change the outcome. But even if he did, that doesn't mean you can orchestrate a scheme to have fake electors send their ballots to the vice president to have them be counted. It doesn't mean that you can put

really unlawful pressure, I'd say, on state officials, including even threatening criminal prosecution like he did with respect to Secretary of State Brad Raffensperger. By the way, it's so fun being on air with you, but it's so funny because in our podcast, I'm like sitting there thinking, wait a second, you're not in your pajamas. We're not drinking cups of coffee. It's like, here we are, like grown up clothes. Exactly. So my analogy to this, tell me if you disagree, is

um so you you go to court you think there's a you think there's an issue you go to court the court decides i don't really care whether you happen to think that the judge is wrong and you quote really won guess what that's what it means to be in a system with the rule of law the courts you you could make your arguments

You could appeal them. You could do all you want. But the judge says, yeah, lost. That's right. That's the legal. Or 65 judges say you're lost. Good point. So you're done. I mean, that's it. It doesn't matter if you have to think the judge is wrong and the 65 judges are wrong. There actually is an answer and you heard it.

So to me, it's like I don't really care whether he says I really believed. I mean, I agree with you, by the way, factually, it's kind of the world's worst factual defense to go down that road because I don't think there's a jury that is ever going to unanimously conclude that that's true. There's just too much in the indictment.

And, in fact, the indictment takes pains in every single section to talk about how many people -- Trump's own advisers, his own Department of Justice, state officials, election officials -- told him over and over and over there was no such evidence. And then almost every section ends with, "And then Mr. Trump went out" or "defendant went out and said."

when he was just told X. - Exactly. - It was set up, I thought, very nicely that way. - I think you both sort of give us a real clear understanding of some, at least some of the shortcomings of that type of defense. The other thing we heard more recently from Trump defense attorney John Lauro was a smattering of things that included, I think something that Andrew would always say at the FBI, no backsies.

No backseas. Yeah, there's a big FBI expression. Yeah, no backseas. Where John Lohr basically makes it sound like you could issue an illegal order to Mike Pence or pursue a fraudulent electors plot. But, you know, it was aspirational. It wasn't completed. Maybe you took it back. Well, obviously, first of all, there's not a lot of public evidence Donald Trump took anything back. But second, I would like both of you to respond to what we're about to hear and how that fits with a conspiracy case. Take a listen.

He asked Mr. Pence to pause the voting for 10 days. He asked him in an aspirational way, let's just pause the voting. There was an effort to get alternate electors. This is the first time that the First Amendment has been criminalized. What he's being indicted for ultimately is following legal advice. What he didn't do is, you know, send in the tanks.

OK, there's three things going on there. First on the no backseas, like, you know what? Every time an inchoate crime is charged, this is something that defendants will say, right? I really wasn't going to have sex with that underage teenager that that this undercover officer, you know, lured me into agreeing to do. That was just fantasy. I wasn't really going to do it.

Same thing in most conspiracies. It's kind of like, oh, we were just talking, right? I was just joking around about the coup. When I raised this with the vice president, he knew I was joking. Yeah, yeah. Everybody knew. So that kind of idea that, you know, it's in Kuwait, meaning didn't come to fruition. Of course, here it

pretty much did come to fruition. But this notion of a conspiracy is one where oftentimes people will say we weren't really going to do it. So I think that just doesn't work here. It doesn't work here factually. And it's something that the law has had to deal with in many other situations. Then you had the flavor also of this is a First Amendment case. This is the criminalization of the First Amendment protected speech. And we've been hearing that from Mr. Loro, as well as Mr. Trump and many other of Trump's

base supporters. And, you know, this is something Jack Smith dealt with right at the beginning of the indictment. And he makes clear Mr. Trump has a First Amendment right to speak. He even has a First Amendment right to lie about what he thinks the results of the election showed. But what he doesn't have a right to do is engage in conduct

that's based on a fraud. And fraud always involves some types of expression. That's the very heart of fraud. You have engaged in conduct, here a conspiracy, multiple conspiracies, based on a fraud.

based on lies. So this distinction between speech, which he's entitled to do, and conduct is something that's clear in the indictment. But for the talking points for Trump and his supporters, it makes for a really quick clip and it makes it sound like what Jack Smith has done is unlawful. And then the last thing that Mr. Lara alluded to there too was

advice of counsel, that he had lawyers telling him what to do. I think the key point there, and Andrew and I have talked about this a little on the podcast, is when your co-conspirator is a lawyer, you don't get to rely on the co-conspirator's advice as a defense. And here we know from the unindicted co-conspirators who have been identified that most of those, in fact, all but possibly one, were acting as lawyers. So

You know, that's thing one. And thing two, I think you can't just go cherry pick around when all of your lawyers are telling you there's no significant fraud and this fraudulent electric scheme won't work. You can't just keep trying out new lawyers, hunting lawyers till you find one to agree with you. So two quick points. One, my reaction, if he raises, I really just follow the advice of my counsel, is Mar-a-Lago.

Really? You're such a law abider that you just want to hear what your lawyer is saying. You're going to follow that. So the Mar-a-Lago case is going to consist of lawyers saying you cannot, you cannot, you cannot. And what did he what if assuming the proofs there obstructed justice twice and kept documents that he was told you can't keep him. He actually lied to his lawyer as part of the obstruction scheme. So that's sort of point one.

The other, this sort of defense du jour where they're sort of trotting things out, I think there's something more nefarious going on. When you think about the Dominion case, you think about the Alvin Bragg case, those are really cases that deal with this alliance between the right-wing media and Donald Trump. And this is a way to not just speak to the MAGA community,

but to give some veneer of respectability to a real possible defense to speak to, you know, the Wall Street Journal editorial board, to the National Review, to like see if something will play so that you can sort of triage sort of the MAGA base and some respectable...

outlets to see if you can get that sort of alliance going. The problem they have is that none of this works. I mean, this is just none of this is a respectable argument. Really, really striking for both of you. Here's what we're going to do. Mary and Andrew both stay. We will be right back with the stress test for democracy.

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Welcome back to Prosecuting Donald Trump. Andrew Weissman and I are here along with the podcast co-host, Mary McCord. And for the first time in history, we are looking at this indictment of a former president, not once, not twice, but three times with questions about whether it could become four in Georgia. Special Counsel Smith, of course, has the Jan 6 probe, which includes conspiracy to defraud the U.S., obstruction, conspiracy against rights.

As we've mentioned, there's also the backdrop of Trump continuing to run for office, which he has every right to do. But there are serious democracy questions here. It's something Liz Cheney discussed last year about how Trump rolls, basically, and whether that can coexist with a constitutional democracy.

The former president who is attempting to unravel the foundations of our constitutional republic. We have to choose because Republicans cannot both be loyal to Donald Trump and loyal to the Constitution.

With that in mind, we're all here, but we're also joined by Ruth Ben-Ghiat, history professor at NYU, author of Strongman, Mussolini to the president. Welcome to the discussion. Thank you. We talk so much about law and we're a society, even if it wasn't a table of lawyers, that is steeped in law.

And yet you've written about and tracked that beyond that lens, there are the deeper questions we face that we have historically associated with other countries. What is a political process if dogged by people who would undermine our law or even democracy itself?

Yeah, well, you know, lawyers are really important now that autocrats come to power through elections a lot of the time. So you have to have lawyers and other bureaucrats working really hard to undermine and subvert democratic institutions and processes.

Then if they get to power, you have lawyers involved, along with their other collaborators, in states of exception, states of emergency, rewriting the law so that you can justify all the crimes you have. So everybody who hates democracy today is a big fan of

Carl Schmitt, who was the Nazi jurist who developed the idea of states of exception. And so what happens today is states of emergency and things like that are used by autocrats. For example, if you're having an election, because again, today you don't ban elections, you keep them going.

You declare a state of emergency so that not as many people can vote or you preemptively then you can justify having some dissidents thrown into jail just while the election's going on. And so the law is weaponized and used. It's like it's like dosed out the repression. And that's how they maintain themselves in power while seeming but while being to claim that they are still like having the trappings of democracy.

So I just find that so interesting given just how much right now people are focused on Eastman and Chesbrough and their memos and what was going on there. And this idea that in order, in history, for people like Donald Trump to subvert democracy, that they need to have that sort of legal facade of legitimacy. Is that how you thought of this or thinking about this?

Yeah, and the other thing with coups, for every—my mantra, I think, Ari, I've said this to you before, but it's becoming more and more relevant. For every thug you see bashing ahead and an insurrection, there are people in suits who have prepared the way. Mm-hmm.

with legal theories, other theories, or they're in military uniforms. But often today, like, you know, Trump couldn't get the military to play, so he had a civilian army. But there are always people behind the scenes who have prepared it and then are in place, if it's successful, to kind of be the bureaucracy of repression. Yeah. And then, Mary, the intersection as well with the candidate's status is relevant because...

Although there's been zero evidence that I've seen publicly that Jack Smith or this Justice Department has targeted Donald Trump because he would run again or was running again, having said that, it is a concern that you want to make sure that doesn't happen. And you have layers of independence for that very reason. You wouldn't want a candidate targeted because they're running.

Indeed, Garland went out of his way to say, and I have a chart to show this. We've been exploring this since we got all this news. When you look at when Donald Trump declared, Smith is appointed for that reason as an extra layer of independence. Seven months go by and you start getting the indictments.

There's actually something interesting where Donald Trump did play himself. He declared earlier, we checked, than any candidate in American history because he thought that would help make his argument that he might claim selective prosecution or being targeted. If you look at this hypothetical, which we ran the numbers, and you just say the same seven months had Trump

declared his candidacy in the typical announcement window, in the one he did around the '16 campaign, would have been much later. We'll put that back up. It would have been much later. I just want to walk through so it takes a minute to absorb. That's that same seven months that Smith took. But had he started the normal time, it would have been December for the first indictment and middle of the primaries, February for the second. There are DOJ rules and other prudential reasons why you probably wouldn't even get a charge. So Mary, my question to you here as one of our legal experts is twofold.

Did Donald Trump play himself or not understand that when he thought he was gaming the system, he was actually inviting a special counsel? And two, where do we go in the future, whatever happens with this case, now that the American public feels habituated to this level of constant investigation, special counsels, the Mueller one? They had valuable predicates, but we don't want to live in a cycle of endless investigations.

I mean, there's no question we have more special counsels in the last few years than I've ever seen historically. And I think it is it's been basically guided by particularly the attorney general Merrick Garland wanting to maintain the independence, the very type of independence that Ruth has acknowledged that, you know, doesn't happen in other autocratic countries. And so as soon as Donald Trump declared his presidency, even though there was a well-known open investigation going on into Donald Trump,

And in fact, you know, the Mar-a-Lago search warrant had already been executed. The attorney general felt like he just had to in order to support this this important principle of the independence of the Department of Justice from the political party.

Part of the executive branch, meaning the White House, the presidency, he felt compelled to do that. Now, whether Trump knew that that's what would happen or not, I don't know. I see the evidence is he didn't know. Yeah. One thing he wouldn't necessarily know is that.

what Merrick Garland is like as a prosecutor versus what Jack Smith is like as a prosecutor. Because, you know, everyone remember when Jack was appointed, everyone was like, what does this mean? It's going to slow things down. That's right. And for those of us who know Jack Smith, we were like, slow things down. I mean, if I may, Garland would be Yoda and respectable and wise. Okay, I don't think either of us is going there. You don't know Yoda? No, I know Yoda, but I don't know Merrick Garland. He's a figure in Star Wars. And Jack Smith...

Jack Smith would be someone with a lightsaber. I mean, Skywalker if you like him, Vader if you don't. One thing that Jack Smith's critics and allies agree with is that he wields his lightsaber and he moves quickly.

Definitely moves quickly. Anyway, I think I interrupted you. This is why it's similar to the podcast. That's right. But again, you know, if he was thinking this was going to somehow Mr. Trump was thinking this is going to somehow make this go away, he thought very wrong. But what it did give him is this ability. I mean, it didn't stop him. I should say it didn't give him the ability to say that this was all fake.

politically motivated, but it certainly didn't stop him. And of course, that's that's that's the whole spiel right now is that this is a political opponent, a declared candidate, his likely opponent in 2024 using the Department of Justice to go after him because he's the leading Republican candidate right now or not for the nomination.

I want to talk about how successful their information warfare has been. We're not prepared as a democracy to understand fully the effect that this assault of propaganda, Trump is a highly skilled propagandist as are others around him.

And it has worked for them. So not only 70 percent of Americans, there's new polls. Seventy percent of Americans think he won the election. One out of six Americans in a new CBS News poll think that all of these indictments and investigations are just a way to punish him and keep him out of the White House.

So this is working for them. And so when Trump's lawyer went on all the Sunday shows and people were like, why is he spending so much time on TV instead of doing, preparing the defense? Right. They're sort of. I was like, well, this is his job. Information warfare is the job. Right. And that's why there's so many out of court arguments, even as we've dissected some of them tonight, we'll probably run into a brick wall in court. So we want to get all of that.

all those angles covered. Ruth Ben-Ghiat, thank you for joining the conversation, Mary McCord, and we will be right back. Welcome back. I've appreciated the time doing this special with Andrew Weissman, prosecuting Donald Trump, which is partly inspired by the podcast you've been doing.

It has been a complete honor to do this with the great Mary McCord, but especially at a time like this. I mean, this is, it's not just unprecedented, but this is such a serious moment for our country. So it's nice to have some time to talk to someone who's that serious about these issues. And the pod, we have something from the pod. Okay, let's hear it. All right, let's play a little bit of the podcast of Andrew and Mary.

This couldn't be a more historic and important matter for the country. The former president solicited a crime of violence against his own vice president. This section of the indictment spells it out crystal clear, the role of violence in the whole entire scheme. I think there is no way in God's green earth that Donald Trump isn't sentenced to jail time.

Those are a couple of clips from the aforementioned Andrew Weissman and Mary McCord. And you can actually use your phone, scan the code there. This is one of the fastest ways to do it. You open your phone camera, scan that code just like you're at a restaurant with a menu, and it'll take you to Prosecutor Donald Trump. And I can tell you, and nobody asked me to say this, it's two of the experts we call on all the time. We think it's a very worthwhile podcast. And so if you enjoyed anything you heard tonight, we do encourage you to check it out. I will also say, as always,

If that's not your thing and you just want to keep it locked on MSNBC, that is also perfectly fine.

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.