Charges to Overturn an Election
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Hello, and welcome to a breaking news edition of Prosecuting Donald Trump. I'm Andrew Weissman, and I'm here with Mary McCord. Good morning, Andrew. I don't know, have you slept a lot? You know, I did go to sleep, you know, a satisfied person last night. Tragic day, as many of us yesterday talked about, because we should never be in this position. But I think a satisfying day to see that there is

accountability at least being attempted through this indictment. And that's important to the rule of law. It's important to our democracy. And so it was a historic day for that reason. And since we are in this position, thanks to the former president, this is the best place we could be, I think. Yeah. So, Mary, the former president was indicted yet again, this time for his alleged efforts to overturn the 2020 election.

in the events that led to the storming of the Capitol, but it certainly doesn't begin and end with what happened on that day. This obviously is the second federal indictment and the third overall. Just to be clear, this is charging conduct before he was president, while he was president, and after he was president. So all three periods of time. But of course, this is the most serious case

Yet, it goes to the heart of the matter, and it's the most important for our democracy. The DOJ's charged him with four counts. These are charges. That means they are allegations that Devanen is presumed innocent, any defendant, and that's part of our rule of law.

There's a conspiracy to fraud the United States, a conspiracy to obstruct an official proceeding. There's actually obstruction of an attempt to obstruct an official proceeding and a conspiracy against rights. So with that, let's jump in. I mean, Mary, as you said, this couldn't be a more historic and important matter for the country. I, too,

felt a gratification in terms of somebody who worked at the department for so long and the idea of the rule of law being applied. But I have to say there was a part of me that felt both despair and exasperation because I know that the courts of law are where facts and law matter. To me, the issue is going to be whether that matters to the American public enough. I'm sure most of our listeners,

are with us on that, but the issue is whether there is a sufficient number of people. And the fact that there are so many people for whom

being tethered to facts and law and understanding the rule of law don't seem to matter. It was a day of conflict in my head about both of those things. Yeah. Will people read it themselves or will they just listen to what the Trump spin machine is already dishing out? Because that's the critical difference. And this is a time for people to

do their own research, make their own decisions based on what they read and what they can then see as it comes out in evidence. And don't let somebody hand it to you. One of the things that I think we've been thinking about a lot for the last several years, too many people just take what somebody else tells them as being the truth. And that's partly why we're in this predicament. So Mary, what were your take-hubs when you were reading the indictment?

So obviously we could talk a great length about the particular offenses charged and the evidence supporting them, but just zooming out 35,000 foot level, I have a couple of takeaways and one actually kind of.

It relates to the point I just made about, you know, what people accept as the truth. And I think the way that this indictment handled the ideas of lies and false claims was very nuanced, but very powerful. So Jack Smith said that this was a scheme that was fueled by lies and

But the indictment just already in paragraph three makes clear that none of the offenses themselves are based on charging lies. In fact, the indictment says the defendant, meaning Mr. Trump, had a right like every American to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won. In other words,

First Amendment allows him to make those claims, but what it doesn't allow him to do is all of the unlawful acts that are charged and alleged in this indictment that all were based on those lies. And so I think that's an important distinction. There's not a charge in here of lying to the American people or even lying to an FBI investigator or anything like that during the course of an investigation.

Because, of course, Mr. Trump hasn't given that interview. But the indictment is replete with lies being the basis for the actions that then are alleged to violate the law. So, for example, every phase of the scheme is built on lies. The directive not to count the ballots immediately after November 3rd that were, you know, still being counted for days and weeks was based on lies about election fraud.

The fraudulent elector scheme, the scheme for electors for Donald Trump to meet in the swing states and cast their ballots for him was based on lies about election fraud. The pressure campaign on the states, the pressure campaign on Pence, ultimately the incitement, and that word is not used, the incitement of the crowd on January 6th, these were all based on lies. So I think that Jack Smith was right to say it was fueled by lies, but lies themselves are not fraud.

on their own, unlawful. Can I interrupt? Because it might be useful to, because I had a similar take. Break that down, sure. One of the things I thought was so skillfully done was not putting too much weight on what happened at the Ellipse. And they just avoided the incitement

issues of the First Amendment and went straight to conduct. You can say whatever you want. You can't act on it. And you can't be saying the lies, asking people to act on it in the same way that you can't

say it's First Amendment to go into a bank and say, give me all your money. I mean, you have a First Amendment right to say that. And it's also a crime. Yeah. So so that actually that's important, though, because once it becomes a crime, it's no longer protected by the First Amendment. Right. So, I mean, if they had decided to charge incitement to insurrection based on

then that would have been the question. Is that still protected or is it not protected? And they avoided that, like you just said. Completely. And I just, that was my first take, which is that it was just so skillfully done

done in terms of avoiding those kinds of, that legal morass in the same way that they, I think, avoided illegal morass in not charging insurrection, which, you know, we had talked about that we would, on all things being equal, we would not charge it. It would have raised a

big issues that would have, at least rhetorically, been able to have been used to say, this is selective prosecution, no one's been charged with it since the 19th century, no one was charged with insurrection in connection with the January 6th

on the Capitol, that one of the remedies for insurrection in the statute is not being able to hold office. All of that that we talked about would have been able to be used by Trump and his allies, both rhetorically and, do you think the selective prosecution claim, while there are answers to it, would have been raised in court? And they just avoided all that by going with

charges that are either bread and butter or have been routinely charged in the January 6th case themselves. And maybe with just the exception of 241, the violation of civil rights, which also to me fits like a glove and has been brought so many times by the Civil Rights Division of the Department of Justice.

Yeah. Yeah. So I do want to I think we should come back and talk a little bit about 241. But I want to give a second big picture because it directly relates to what we're talking about, about incitement and violence. Yeah. So, Mary, it's great that you're interrupting my interrupting you to get us back on track, because I think I told you that I was going to be a bit of a mess this morning based on I think what is it? Did I say I never do math in public?

And even though I don't really think of this as public, I think of this as just you and me chatting. Yeah, right. But it ends up being public. But I think that means I slept like

like two and a half hours. So yeah, it's kind of a mess. Anyway. See, that's going to hit you later tonight. Like right now, you're probably still good. Yeah, well, I still have a lot of adrenaline and caffeine. And also, I had so much caffeine last night. I think it's like it's still in the system. Okay, so second big picture. We'll have to have an episode just on that.

Yeah, right. There is very much violence in this indictment, right? There is no incitement to an insurrection charge, but violence plays a very prominent role, particularly in the section about the pressure on Mike Pence.

And then finally, in the section about January 6th and the crowd and using that violence to put additional pressure on Congress when they did reconvene not to count those ballots and to reject the Electoral College and challenge the Electoral College ballots from certain states. But on the sections of the indictment about the pressure on Pence, it just goes in.

Tweet by tweet, by statement by statement. It starts even in December. But even if you just focus starting on paragraph 96 with January 5th alone, the public statements made by Mr. Trump are.

A falsely saying, and he knew it was false because he'd been told by his advisors, he'd been told by the vice president, he'd been told by multiple people that Mr. Pence did not have the power or authority under the Constitution to reject these electoral college ballots or to send electoral college ballots back to the states.

He didn't have that power. His power was ceremonial only to count the ballots that were there. Despite that, the president repeatedly went out to the public and told the public that the vice president had the power basically to fix this fraud, to stop the steal. And Mary, I was going to say, because we're trying to be very careful to say this is what's alleged, but this is one where it's not.

You could say, yes, this is what's alleged, but there's hard evidence of this. These are facts in the world. Right. This is where it's actually out there. I mean, to be clear, we should make sure... We have the statements. We have the tweets. All of these charges are alleged documents.

Donald Trump, like every defendant, is presumed innocent. This has to be proved beyond a reasonable doubt and unanimously. But the particular thing you're focusing on, Mary, is something where it's not controvertible. It's got because it is exactly what's said. And I just wanted to read just to illustrate the point that you're making about the violence and

is right after paragraph 96 is paragraph 97. I actually misspoke about this when I was on air last night, but let me give you the exact wording. When the vice president on January 5th tells the president that he does not have that power,

that paragraph 97, and this is alleged, which is, quote,

and alerted the head of the vice president's secret service detail, unquote. I mean, it is, even now, it is chilling. I circled that paragraph. I put stars by it because I had never heard that before. That was new. And that means already, imagine this, Andrew, the vice president and his chief of staff being worried that the president of the United States would do something to put him in harm. I mean, it's, even now, I...

It's chilling. And by the way, that speculation that they were worried about is exactly what came to pass. I mean, this was not some idle concern. It is remarkable that their concern

was about their safety because of the actions of the president of the united states and then we should just point out paragraph 99 is particularly because we had judge ludig on our last episode and this isn't a plug about you and me this is anyone who wants to hear about this particular paragraph 99 should listen to judge ludig um and paragraph 99 is

the issuance by Donald Trump of a public statement that says the defendant approved and caused

the defendant's campaign to issue a public statement that the defendant knew from his meeting with the vice president only hours earlier was false. And the statement that Donald Trump issued was, quote, the vice president and I are in total agreement that the vice president has the power to act

unquote. We heard from Judge Ludig that he saw that. He was told contemporaneously that that was absolutely false. He even said as soon as he heard that, he made an immediate phone call, right, to confirm, is this true? And he was told within five minutes, no, it's false. The vice president absolutely does not agree with the president that he has the power to act. And this statement, this is such a good illustration of where the people are thinking, well, maybe Donald Trump actually believed. Well,

If you want a really good indication of his intent and whether he actually believed it was stolen, why is he lying? Why is he saying this? This is really, and this goes to that he is using falsity, lies, including to not just the American people, but to his own vice president in order to

Stay in power. Yep. And that's the bottom line. And it was these lies, you know, back to the violence that then continued throughout the early morning of January 6th, focusing in on the statements at the Ellipse. And then during the actual attack on the Capitol, as we all know, in the middle of that attack, still the president died.

said Mike Pence didn't have the courage to do what should have been done to protect our country and our Constitution. And, you know, that's just red meat to the crowd. And this is why several weeks ago we talked a little bit about how I didn't think this would be charged. But if you really pull apart all these facts on January 5th and January 6th, it sure does look like the former president solicited a crime of violence against his own

vice president. And I think without using those words, soliciting a crime of violence, this section of the indictment spells it out crystal clear, the role of violence in the whole entire scheme. Yeah. So again, I find that these charges so dispiriting in terms of what happened. It's so hard to express and for people to understand that

I think I've told this, like, I remember the first time I went to the White House and it was during the Bush administration. I had not voted for Bush and I had such reverence for Bush

the institution, the White House, and what it represented. And yes, there were disagreements. You know, it's like Judge Ludig. I'm sure Judge Ludig and I and Mary, you and I might have differences on how we view certain things. But all within the framework of understanding our constitutional principles and the rule of law and be tethered to the facts and

The idea that the leader of the free world was willing, based on these allegations, to engage in this conduct, including and up to violence against people

the vice president, members of Congress, law enforcement in Congress, the staff in Congress, that all came to fruition is all laid out here. And the thing that will remain is to see whether this

actually resonates with people and really test our own commitment to the rule of law. Because to me, the facts and the law here are not the issue. This is going to be an overwhelming presentation in court. More prosecuting Donald Trump. Charges to overturn an election in just a moment.

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Mary, we should talk a little bit about the assigned judge, because that's something that people talked a little bit about on air. But this is a district judge nominated by President Obama, confirmed unanimously by the Senate.

Like every judge, I think, in the District Court of D.C. has had numerous January 6th cases. And she has her background not as a prosecutor, but as a public defender, which I think is really important because she is going to be really mindful of...

defense rights. She's not a judge who the government says, oh, that's great because this is going to be somebody who's aligned with us or a rubber stamp. It reminds me a lot when we found out that her cases were assigned to Amy Berman Jackson. We knew

This was a judge where we had to have our ducks in a row and play it completely straight. And if we played any games, she was going to correctly be honest. So I think that's her reputation. But Mary, you've practiced so long in D.C. Tell us what you think of that.

judge and her reputation. Sure. So Judge Chuck and I go way back because I was, of course, a prosecutor in D.C. and she was a defense attorney in D.C. In fact, both she and her husband worked for the Public Defender Service. And so actually, you know, in D.C., I think we've talked before, the U.S. Attorney's Office, where I was, prosecutes both federal and D.C. crimes because there is no electorate district attorney since the District of Columbia is not actually a state.

And so it's under basically congressional authority, and that means that Congress has the ability to impact its own governance, and that's why the U.S. attorney handles all prosecutions. So Judge Chutkan and her husband were both at the local public defender service, not the federal public defender, but that's where I had many, many cases, and she was a very—

Excellent, excellent defense attorney, formidable opponent to anybody in our office, but fair, you know, like we got along with her. No ill will, always very respectful relationship. In fact, in general, in my experience, the relationship between the U.S. Attorney's Office and both the federal defender and the local defender was very, very good during my whole tenure there.

I also have been very familiar with Judge Chutkan since she's been on the bench. I know most of the judges in the courthouse because it's where I practiced for so long. Many of them came from the U.S. Attorney's Office or the Defender's Offices, so I knew them through that. My husband worked for the courthouse for 12 years. But also I'd say relevant to this case is that Judge Chutkan handled at the district court level the Trump v. Thompson matter. So this is the case where

The House Select Committee had sought to get the White House records, presidential records from the National Archivist that would be relevant to its investigation. And this is the case where Donald Trump challenged that in court as the former president of

...asserting executive privilege over those documents, saying these are presidential records under the Presidential Records Act. I'm asserting executive privilege so that these will not be transmitted to the House Select Committee. Now, this set up a very interesting legal issue because we had both a former president and an incumbent president...

And the incumbent president, President Biden, declined to assert executive privilege. So the issue really kind of came down to a twofold. Can a former president assert executive privilege? The answer to that question is yes. That was basically decided years ago in a case involving former President Nixon.

But when it is in conflict with the views of the incumbent president, what happens? And the answer to that, as Judge Chutkan found and as the D.C. Circuit found and as the U.S. Supreme Court declined to intervene and reverse, was that there is a right to executive privilege that the former president can assert, but it's not absolute. It gets balanced out against the compelling need for the information. And here we were talking about the House Select Committee.

that was investigating under its legislative powers to investigate with an eye toward potentially legislating and its oversight powers. It cannot engage in criminal investigations, but it can engage investigations in furtherance of its legislative powers. And here the need was so great that under any balancing test you use, and we won't get into that today because it's super complicated. There are multiple tests you could use, but under any test, including the one most favorable to the former president, he loses. Right.

And again, Judge Chutkan ruled that way. It was appealed to the D.C. Circuit. D.C. Circuit agreed with her. The former president sought a stay in the U.S. Supreme Court and sought a writ of certiorari to have review in the Supreme Court. Supreme Court denied that stay. The day the Supreme Court denied that stay, the documents started flowing over to the House Select Committee. And ultimately, then the Supreme Court denied cert in that case. So the ruling stands. So I raise this because Judge Chutkan has dealt with

with these executive privilege issues and knows them very, very well and also has some familiarity already because of her own, you know, presiding over this litigation into facts and evidence around January 6th. So I think it's really fair to say, based on your experience and her reputation, that

This is just a very different judge than Aileen Cannon. And I don't mean that in a disparaging way. What I mean is that you have a judge who's just much more experienced with controlling the courtroom, dealing with January 6 issues, and in important and novel matters, gets it right. She has not been reversed twice, for instance, in scathing language by the circuit court, the appellate court.

I think that's all very good for the rule of law. And I think her background shows she will give a very fair trial to any defendant, including Donald Trump, which is as it should be. And I think that's a really good segue to where are we going from here? We know that Thursday there's an arraignment before the assigned magistrate judge. That's sort of a relatively pro forma matter. And then in short order, there will be a court appearance before Judge Chutkin. That's right. And

I wanted to ask you about what you thought in terms of,

the case going to trial, when that would happen. We know that Judge Ludig told us in the last episode, just to keep plugging that because he was so fantastic, that his view was that there was no reason that this case could not be tried and, in fact, should be tried before the general election. And then particularly one of the unusual features in the indictment, which we didn't really talk about, but it's definitely in my list of things, was the six

unnamed, but at least five of whom are very readily identifiable co-conspirators. And I actually have a lot to say about that, but I'm going to try and hold my tongue, especially since I'm kind of not doing too well on being articulate this morning. But let's first talk about what you think in terms of the child aid and what do you think

is going to happen there? What do you think in terms of the government, in terms of producing discovery early in the way that they did in the documents case? What are you sort of anticipating there? Yeah, well, I think one thing that'll be interesting the first time that Jack Smith and his team actually appear before Judge Chuck Kent is what they're going to say with respect to a trial date, because I assume that right now they have something that they're going to propose.

And the discovery point, they're going to have everything already on a silver platter to hand over to Trump and his attorneys so that that can't be a basis for delay. And whether they try to seek a date that...

sort of threads a needle either between the Manhattan trial of Alvin Bragg and the May 20th Mar-a-Lago trial. That'd be a tight squeeze because one's March and one is May. I'm not sure that's even possible. Right. Just remember, by the way, that Alvin Bragg is open to if that is a date that needs to be used. I just thought it was remarkable that he said, I'm not going to stand on ceremony as to who charged first. So that March date

date. Obviously, it's up to the Manhattan judge whether that gets moved. But it sounds like the DA is not going to stand in the way. But do you think that would be enough time? In other words, if she were to set that schedule? I mean, you know, this isn't the Eastern District of Virginia where there's the so-called rocket docket, which I personally have some issues with, having been not just a prosecutor, but a defense lawyer. But even as a prosecutor, the idea that

you can be rushed to trial doesn't sit well with me. I agree. Late March would be eight months. That is obviously well beyond sort of what the Speedy Trial Act presumes, 70 days, but 70 days almost never, ever happens. And certainly not in the case of this magnitude. And so I think it would be an aggressive schedule. But I do think it's possible. And I think there's a decent chance that Jack Smith will ask for a date that probably would mean that Alvin Bragg's case would yield.

even if it weren't till April, I think it would still mean Bragg's case might yield because otherwise Jack Smith would be in the position of either saying, we'll do this after Mar-a-Lago, which is getting really late, or we'll seek to have Mar-a-Lago trial delayed in order to get this one in May. And I think that would be sort of an interesting position for him to be in. But I think that remains to be seen. I do agree with Judge Ludig and Andrew, you and I have talked about this, that the judge will try to

to get this scheduled before the election, and that certainly the government will push, push, push to get it done before the election. And I think certainly Mr. Trump will push, push, push to have it not happen before the election. But that actually, you know, segues very nicely into the co-conspirator point, because you and I were talking just, I guess,

like two days ago about the fact, would we, if we were prosecutors... Seems like a lifetime ago. It does. Would we bring a case that involved all the co-conspirators, just a few of the co-conspirators, just Donald Trump? And this one just names Donald Trump, but it's pretty clear these six co-conspirators have substantial criminal culpability. Mary, I would say that's an understatement. Yes.

And I'd be shocked if they're not indicted unless, of course, they decide to cooperate. And so the question is, when will that happen? And will that happen so close to this indictment that the judge consolidates them and then we're into trial?

potential additional reasons for delay, because then we would have up to seven defendants with their own attorneys filing motions, et cetera, et cetera. Right. So I do think let me let me make sure everyone understands that, which is I think we both are saying that there's no way that the government's going to supersede to add those people to this indictment. The reason for one and only one defendant here, Donald Trump, is for speed.

Because they could have done that. They could have included them yesterday. The allegations are there. Yeah, there's no question. I'm going to talk about that for a given illustration. There's no question that the government views these people as guilty and that the allegations are crystal clear that that's what they think. So, yeah.

They could have included them. It's clear they're doing this for speed, which is one defendant. Now, they could separately charge them. And in fact, by the way, it could be that they've charged them already and it's under seal. We don't know that. But if there are two separate indictments in D.C., those can get consolidated by a judge, meaning a judge could decide, OK, I know you government have decided that you want these in two separate cases, but you know what?

I want to try them together because, you know what, I'm not a short order cook. I have control over this. Now, that doesn't mean the judge is going to do that. A judge could decide to keep it separate. And there are a lot of reasons that could be the case and to honor the government's wishes on that.

But that could be a reason that we haven't seen those charges yet. I have to say, one of the things that struck me was just how much the indictment focuses on the guilt of those six people. Let me just give you an example. The section on Jeffrey Clark, the former DOJ official,

It's the same section I was thinking of, Andrew. Oh, well, that's probably also because we're former DOJ people. So offended. So offended. Exactly. That carries such personal import for people who used to be at the department because of what he did. And that section, in many ways, it's not completely tethered

to the former president. There are allegations that really go to his conduct. It is clear that the president would know about the key parts of it, but a lot of the conduct that's described is Jeffrey Clark lying to the acting attorney general, lying to the acting deputy attorney general. So really, he tried to extort the acting attorney general and the acting deputy attorney general when he said to them, look,

I will decline the president's offer to make me the acting attorney general if you will agree to send this letter that I have written that basically would go to the states, the swing states that he believed were contested and say, we, the Department of Justice, are opening up fraud investigations, election fraud investigations in your state. And essentially, we think you should halt everything because these are legitimate fraud investigations. And that was basically the actual...

Attorney General and the Acting Deputy Attorney General said, no way, no way. There's no basis for them. We're not doing it. A, you want to get fraud. B, you want to commit extortion. I mean, this is in colloquial terms. So that's just really great to have somebody in the Civil Division of the Department of Justice saying that to the Acting

Attorney General and Acting Deputy Attorney General. It's unfrigging believable. It is. It is unbelievable. It really stood out. By the way, Jeffrey Clark was the Acting Attorney General for most of the day on January 3rd.

according to this indictment. So, I mean, the allegations are sort of overwhelming that they think he is guilty, but it's not completely tethered each and everything that's in the indictment to something that Donald Trump knew. To me, that's because you could...

And to my mind, cut and paste that and just plop it into an indictment of Jeffrey Clark. And there are various reasons that it may be done this way. One, if you are Jeffrey Clark, as sure as you and I are talking, Mary, you know you're getting charged. One way or the other, it's an opinion, it's a prediction, but there's just no reason to have...

taken it this way. Now, why would you do that? One is maybe he's charged already and it's under seal. We don't know it. Another is that it does, it's a little bit like when you write a criminal complaint as opposed to an indictment. You are signaling to people what evidence you have and where you're going. And if you are Jeffrey Clark and his criminal defense lawyer, you read this. And if you're the defense lawyer, you have a serious conversation with your client about

which way are you going on this? Because it is going to be United States versus Clark. On which side of the V, as we used to say, do you want to be on? Do you want to be on the defendant's side or do you want to be on the United States side? And so to me, that's really signaling for these people what is about to happen. And so just to be clear, the names that people have, I think, widely identified are Rudy Giuliani,

John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesbrough. And then the sixth person, a lot of speculation. And so until we really know, it's not good to speculate. Well, the reason we can identify them is because there are such specific allegations within the body of the complaint about things that these various co-conspirators said or did.

or did that we can readily verify against known facts. And so that's why these are not such a leap. And in fact, I think Mr. Eastman's attorney has already acknowledged that he is co-conspirator too. But other things are like quotes from things that they said that we can match up to things they said or

cases brought, like Sidney Powell bringing a case on a particular day that was rejected on a particular day by the court. And we know that's Sidney Powell. So they're very objectively verifiable and not speculation. But co-conspirator six, the political consultant, we're not sure yet on that. So things to look for, obviously, trial date, huge thing to keep an eye out for. We'll keep you up to date on that, but that's going to be huge news. Second,

keep an eye out for a new indictment. Not a superseding indictment, but a new indictment or indictments, plural, with respect to these conspirators. By the way, there's also a lot of evidence that's been laid out as to why state charges could be brought against them, which shouted out to me about crimes that these people are alleged to have done, which would also violate state law, for instance, Arizona. And then the third thing that I

wanted to just go out on a limb, Mary, and say, particularly given these charges, given that it's in D.C., given the history of the D.C. judges dealing with the January 6th cases involving foot soldiers and the Proud Boys and the Oath Keepers, and given that we have a judge who is widely respected and believes that the rule of law is...

If there is a trial here, if it doesn't go away because of the election, and if there is a conviction, so lots of ifs, I think there is no way in God's green earth that Donald Trump isn't sentenced to jail time.

And I know that's a lot of ifs and a lot of, as you know, I'm in the prediction mode, which I probably shouldn't be. But a lot of people have sort of said, oh, he can't go to jail or he wouldn't go to jail because of Secret Service. And could you really see a foreign president being in jail? I just think that a judge like Judge Chutkan, who believes in the rule of law and treating equals equally,

will not be able to stomach the idea that lower-level people will get significant jail time, but somebody who is more responsible does not. Now, that's not to say that she wouldn't consider

that because of the way he might have to be protected within prison, that the circumstances, and there's case law on this, that if, for instance, if he has to be in solitary confinement, that can't be for his protection. That can't be a factor to give him a lower sentence because his conditions might be worse than everyone else. But having said all that, leaving all of those niceties aside, it's just very hard for me

to see that and just especially because it's the courthouse where they've seen so many people

go to jail for doing far less. For doing what he told them to do, really, what he wanted them to do. Well, I'm not going to quite prognosticate yet. I'm going to keep cogitating on that. That's great. You should definitely keep me honest. Yeah. I mean, all the points you make are entirely valid. It's just, I think, super complicated, right, when you're talking about a former president with his security detail and everything else.

So there's so much more to talk about when we get a chance to dive in. We didn't get to kind of dive into what some of these charges like the 241 charge, what that's based on, and didn't get to dive in as much about some of the Republicans who really stood up. I think the paragraphs about each of the states are remarkable because in each state, it was Republicans who rebuffed

the claims of fraud and i think that's commendable and it's they really stand out here as having some spine that was well needed at the time but we'll have other episodes to dive into those things and you're getting the quick hits from us today okay so mary i'm gonna go get some sleep and do that nice talking to you same

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 this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Katherine Anderson is an audio engineer. Jen Maris Perez is the associate producer. Aisha Turner is an executive 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.