Deep Dive
Shownotes Transcript
Hello and welcome back to another episode of Prosecuting Donald Trump. Well, we've got a lot to talk about today, as we seem to have every week, including a potentially very big development in the Georgia 2020 election probe.
We now know that at least eight of Trump's so-called fake electors have accepted immunity deals from Fannie Willis. And we'll get into the complications of that and what that could mean both for the Georgia case and potentially also for Jack Smith's case. We also have a number of other issues, but before I do that, let me introduce...
My esteemed co-host, Mary McCord, who's with me. Pleased to be here again, Andrew. And you're right, today, like every week, we've got a lot to talk about. It's sort of amazing, isn't it? Because it's like Donald Trump is, I mean, I'd hate to say that's the gift that keeps on giving, but in terms of a podcast...
Every week we're sitting there going, "What should we actually focus on?" Because there's so many things to talk about. But we're definitely going to spend a lot of time talking about the Fonny-Willis developments and get into both the practical effects of that and also legally. It's pretty complicated and builds on something that Mary and I talked about a couple episodes ago about immunity and how that works.
But we're also going to talk about last week's really important development in the Proud Boys case and also a piece with respect to the Oath Keepers case. And I know Mary really wants to talk about that. As you all know, Mary is really deep into the problem of domestic terrorism. So we'll definitely turn to that. And then finally, ongoing as we are recording this,
is the closing arguments in the E. Jean Carroll case, the case that I keep on referring to as the oxymoron case, because that is a civil rape case. But that's ongoing. And so we can be expecting a verdict basically as soon as tomorrow, conceivably. But with that, Mary, let me set the stage for people about...
what we know in Georgia and then turn it over to you. But it's been sort of complicated because there's this issue of fake electors. That's something that is used as the moniker. And those are electors that the Trump campaign was trying to
trying to put in place, not just in Georgia, but in other states as well, where people were prepared to say, well, we are essentially the true electors and should be representing the winning candidate, meaning Donald Trump. And there's a bit of a potential defense because they could say, well, we are only going to be electors if it was shown that there was
fraud in the election, and then we were prepared to be the new electors. But there's also the counter, which is these are people who are prepared to actually be part of a whole scheme, that there should be fake electors and be part of a ruse to allow Congress to say, let's hold off the counting and send this back to the states. So that's sort of the position that Fannie Willis and Jack Smith were looking at those issues. So
With respect to that, this whole issue started with 11 potential fake electors who were all represented by the same two lawyers. Note to self,
Huge problem when you're doing white collar cases. Huge problem when you're doing organized crime cases, when you've got a group of people represented essentially by the same lawyer. I'll turn to that because I've dealt with that my entire career, this sort of house counsel problem. Right.
And I believe, too, these two attorneys were paid for by the Republican National Committee, if I'm not mistaken. Exactly. And that fits in with this idea of House counsel, meaning that not each individual person is paying for their own counsel. They're getting sort of group counsel. But ethically, just to be clear, ethically, you can represent multiple people, but your loyalty as an attorney is...
is to each client. You absolutely have to represent each client with
Zealously. Yeah, zealously. Zealous advocacy, as Mary said, is exactly the standard that's applied. And the idea is that if you can't represent each person zealously, you should not ethically, as a lawyer, be representing them. So that people have to have sort of an identity of interest in order to do this. So if you've got a lot of people who are all sort of witnesses and they're not implicating each other and nobody has anything to worry about,
It's just cheaper a lot of times for a company or the Republican Party or whoever is paying to just have one lawyer or one law firm representing a whole group of people. But it means you have to be on your guard. That lawyer has to be on their guard to make sure they can ethically represent everyone. So this started out with 11 so-called fake electors.
who were represented by the same two lawyers, and that was brought to the court by Fawnie Willis. And the issue was how they could represent 11 when one person seemed to have actual criminal exposure. And the court said, I agree that you need to separate them out. So then
You ended up with one of the lawyers representing 10 people and another lawyer representing one person. Presumably that one person is the target, to use the terms that Mary and I use, and the 10 presumably are all witnesses, people with no criminal exposure. Well, the plot thickened last week.
because there was an issue of whether the lawyer should still represent 10 people. And there's been a real back and forth with the court and different filings, which we'll get into by Fonny Willis and by that lawyer, as to whether that lawyer has actually been representing the 10 people
zealously. And now we're down to an issue of eight and two. So where there are eight people who are being represented by one person and two who will be represented by different people. But essentially, it keeps on sort of breaking apart. And
Fannie Willis is basically saying, we still have a problem here because we have a lawyer who is representing different interests. And just to preview, her argument is twofold. One, that among those people that this lawyer represents are people who have actual criminal exposure. And so you have some of the people represented by the same lawyer who
saying other people represented by the same lawyer have criminal exposure. And so that's sort of a classic problem. And then it gets worse because the judge had ordered at one point the lawyers to tell their clients that they were being offered immunity. And they represented back
to the court that the lawyers had told all of their clients that they could get immunity. It was being offered, and the lawyers represent to the court, we told them that, and nobody wants immunity. Well, Fannie Willis puts in her filing that
Some of these people were interviewed. I think two people were interviewed. Mary is going to correct me if I'm wrong. And they said, wait a second, no one ever even told us about immunity. So that, by the way, is... What's the word? The show might be the... I mean, that is, if you're a lawyer... That's a technical term. Technical legal term. I have to say, if I'm a defense lawyer and somebody says that, I have a heart attack. I mean, that is...
unbelievably serious that you've got a client saying, I was never told that I was being offered immunity. And that same client
that lawyer's colleague had represented to the court that they had said they had not done that. They had told them. So there's a disconnect. Now, obviously, there could be a misunderstanding. Somebody could have been confused. But you definitely have a contradiction between what one client or two clients are saying and what the lawyer is saying. Anyway, that's a lot of background. But Mary, what do you make of this? What's the big import here? What could happen? Yeah.
Yeah, so obviously they're going to be hashing it out in court whether Ms. Dubrow can continue to represent these electors. And that's how this other issue of immunity got to the public's attention, because both Fannie Willis in her motion and Ms. Dubrow in her response to the motion, a motion to disqualify her from representing those electors, they point out that
the Fulton County District Attorney's Office had raised the issue of offering immunity to all of the electors last summer. And that's the issue that you just flagged, that at least two of the electors are saying, no, the attorneys never told us about it. But then they also talk about having actually renewed that. The District Attorney's Office renewed that offer much more specifically just in early April and
And as a result of that, eight of the electors were offered immunity, did accept that immunity and came in for voluntary interviews. Now, to my knowledge, they have not yet gone in the grand jury. They came in for voluntary interviews with the prosecutors, which is exactly where we're getting these discrepancies in people's lives.
views about what happened during those interviews, because it was during those interviews that two of the electors said we were never told about immunity last fall. It was also in those interviews that some of the electors apparently, according to Ms. Willis, pointed fingers at other electors. Now, it's interesting because Ms. Dubrow was in those interviews and she says, no, that didn't happen. So we have another sort of she said, he said, she said issue of which is why I think this will get hashed out in the courts.
I have to say, Mary, I am really skeptical of the lawyer. I mean, the lawyer is sitting there saying, you know, all of the clients are saying nothing wrong happened here. I don't know. I mean, this is speculation on my part, but something's got to be off about that. I mean, Fannie Willis can't make this representation about this happening. Right.
If she doesn't have something in the transcript.
are then compelled to testify in the grand jury. And they would be compelled because even if they would be saying, well, we're doing it voluntarily, they're doing it under a grant of immunity. So they don't actually have an option to say no. They can't now go in and claim that they have a Fifth Amendment right against self-incrimination because the prosecutor has extended them immunity from prosecution based on their own statements. So if the
DA was going to want to try to prosecute them, she would need to come up with evidence completely separate and apart from their own statements to use against them. So the question is, what does this mean for Jack Smith's investigation? And
There's really a lot, you know, there's law out there that I haven't seen applied in this identical situation, but in situations that are for all intents and purposes the same, which is that when a witness is compelled to testify either under a grant of immunity or under a threat that they might lose their job or
like a government witness who's being threatened by the government that they might lose their job, when that person then is compelled to testify, whether it's in another country, whether it's before Congress, whether it's before a state prosecutor, a state grand jury,
Even a federal prosecutor in a separate criminal investigation is likely not to be able to use that witness's testimony in a prosecution of that witness. And that's because the Fifth Amendment right against self-incrimination is a trial right. It arises automatically.
at trial when the government seeks to use your statement against you. And so it's not a situation that exists in some other areas of law, like the Fourth Amendment, where foreign governments can sometimes hand over to the United States
on a silver platter, evidence obtained against someone the U.S. wants to prosecute, even if that evidence was obtained overseas in ways that we would say here in the U.S. violated the Fourth Amendment. That's a different doctrine. When it comes to the Fifth Amendment, that's a personal trial right that you assert at trial. So what that means, just to get down to practicalities here, is that anything that these witnesses, these electors say,
say in the grand jury, or frankly, say even during these interviews with the district attorney, that might incriminate themselves, likely would not be able to be used by Jack Smith later on if he were to prosecute, seek to prosecute one of those electors.
So, Mary, so basically if the state immunizes, it basically is, as a practical matter, is a form of federal immunity as well, de facto. But importantly, only as to that particular witness.
is something that still could be put on. So let's say the state elector says, I was told to lie by Rudy Giuliani. Total hypothetical. That's evidence that could be used in a state case, but also that's something that Jack Smith could use against Donald Trump, excuse
They couldn't use it if you wanted to bring a case against the same elector, the one who's making the statement, because you have to be able to build... If you wanted to go against that elector, you have to show that you're not using that elector's statements or any leads from that statement. So finding Willis is doing something great,
potentially, but it is definitely binding Jack Smith with respect to at least those electors, which is really interesting. I think the big thing to keep an eye out for is whether Fannie Willis knows what she bought. When you give people immunity, usually you get a bit of a proffer as to what they are saying. So you have a good sense of essentially what you're buying with immunity and that you're saying, "We'll immunize this person,
But we're doing it because we know we're getting, you know, particularly valuable evidence. Something that's worthwhile. Right. And, you know, if her sights are set higher up and, you know, if Jack Smith's sights are set higher up, then maybe this is a good bargain. But you're right. Normally you'd have an idea. And I'm not suggesting she didn't, but you'd have an idea in advance of what you're going to get.
Yeah. So bottom line here is also, one, it shows her case is certainly continuing, but it sort of explains why she said we're going to be getting to this decision in July, up through beginning of September, because this is clearly quite interesting in terms of potential evidence. These interviews just happened in April.
Yeah, exactly. And also her gambit paid off. I mean, in terms of what Fannie Willis was doing, in terms of making this motion, in terms of making sure immunity was actually being conveyed. So this is a to-be-continued but potentially huge development for both her case and the Jack Smith January 6th case. So let's turn to something else that happened that I know Mary was struggling
super interesting to you, which was the Proud Boys, you know, many, many guilty verdicts, particularly for people on seditious conspiracy. In and of itself, I'm pretty confident you and I have the exact same view. In and of itself, even leaving aside Donald Trump, really important case, really difficult case, and kudos to the Department of Justice for bringing it.
And the second thing that happened, which I thought was super interesting, was the government announced what its position was going to be with respect to one of the Oath Keepers. And I won't spoil the import on that and turn it over to you, Mary, because I know you really wanted to talk about what you thought the implications were for the potential case against Donald Trump.
Yeah. So just to start with the Proud Boys verdict, right, this was a verdict finding all except one of the Proud Boys who were in trial, five of them in a lengthy trial, finding all of them guilty of seditious conspiracy except for one. And that other one was still found guilty of obstruction of an official act of Congress and assaults on property.
on law enforcement and all the offenses for which he was found guilty still carry 20 years yeah 20 year penalty maximum penalty same as seditious conspiracy so again another big success this is now three seditious conspiracy trials that the government has brought two against members of the oath keepers one against members of the proud boys including in both cases their leaders and
And the government has been successful in getting many guilty verdicts on seditious conspiracy, including against both leaders. Between these verdicts and some guilty pleas that took place before the trials, there have been 14 members of Oath Keepers and Proud Boys that have been now convicted of seditious conspiracy. And I think that's so significant because a lot of people before the government brought those charges forward.
thought the government probably wouldn't do that, that it's a rarely used offense. It kind of dates back to post-Civil War times and hasn't been used that frequently. And when it has been used against domestic extremists, it has often not succeeded.
it has been more successful against Islamist extremists, but not against domestic extremists. But here, I think it was critical for the government to bring it because it is exactly what happened, right? As you remember, Andrew, you know, at the Department of Justice, you're bound under DOJ guidelines to bring sort of the most serious charges that you can prove beyond a reasonable doubt and that fairly and accurately describe the conduct. And here, what these...
groups did together and collectively as groups was conspire to use force to prevent the execution of U.S. law. And in this case, we're talking about the counting of the Electoral College ballots, which is required by the Constitution as well as by U.S. statutory law. Mary, is that the, just for your mind, is the basic distinction between obstructing Congress and
and seditious conspiracy... Use of force. Use of force, exactly. I mean, there's slightly different elements, but that's the key difference between those two types of charges. That's right. And, you know, seditious conspiracy can be broader than doing something that, you know, hinders or delays the execution of U.S. law. It can be...
to use force to overthrow the government. And some people like to talk about this case as being about overthrowing the government. But really, you know, when you get technical into parsing the statutory language, it was about using force to hinder or delay the execution of U.S. law, which was, of course, related to the transition of presidential power. So it's not invalid, I think, to talk about overthrowing the government. It's just
not the precise legal theory that was brought here. And to your point, you know, Merrick Garland, who gave a rare press conference with the full leadership of the Department of Justice there in the background, which I found notable, talked about holding everyone to account
who was involved in delaying or hindering the peaceful transfer of presidential power. That's how he phrased it. It was, I don't know about you, Mary, but I was reading it. Our work continues. Our work continues. And I mean, talk about like, I mean, he said everything but the words, Donald Trump.
No, I think it was definitely a signal. Don't think this is over, public. We're still working and we still intend to hold people accountable. Now, obviously, there's nothing about that verdict that changes Jack Smith's investigation other than I think he can feel –
some confidence that three verdicts of seditious conspiracy does mean that jurors are very receptive to evidence that shows that there was an insurrection. Yeah, I sort of viewed it as more emotionally insensitive
if I were Jack Smith and I saw this, it would very much remind me of what I was working on Enron or organized crime cases, where if you bring a case against mid-level executives at Enron or a
capos in the Gambino family, the idea that if you can make a case against the boss who was setting in motion those crimes, if you can get to the executive suite in Enron, you just felt like you really had to, that your job wouldn't be done if you couldn't get to the top of the food chain. But Mary, what did you think about this, the request, the sentencing request in the Oath Keepers case?
So I think this is really significant. The government came in with a very, very long, I think something, yeah, almost 185-page sentencing memo. Now, it's a sentencing memo that applies to all nine Oath Keepers who were convicted at the two trials, but they have asked for 25 years of incarceration for Stuart Rhodes. He is the leader of the Oath Keepers. He is the one who, frankly, has been agitating for violence on behalf of President Trump and against
you know, those who are adversarial to President Trump for years. So I think it's a really significant message about how seriously the government takes this. I mean, that is a very substantial sentence. And I will also say others, I mean, the range of sentences they're requesting starts with a low of 10.
and goes up to 25. They've done that in part by adding a terrorism enhancement to the calculation of the sentencing guidelines, which is based on the U.S. sentencing guidelines that say that when an offense is calculated to influence or affect the conduct of government by intimidation or coercion, that terrorism enhancement can apply. And obviously, seditious conspiracy, by definition, is a
almost has that type of an element. So I think this is just a signal, again, these particular prosecutions are not being handled by Jack Smith. These particular prosecutions are being handled out of the US Attorney's Office in DC. But of course, they are running up the flagpole, their sentencing recommendations, all the way, I suspect, to the Attorney General. And so Jack Smith would be very well aware of this, even though these are not under his direct authority. I think it does
send a really important signal about how seriously the government...
thinks about the high-level people, because Stuart Rhodes didn't actually go in the Capitol. Yeah. And I think, look, we're a long way away from a charge being brought against the former president in connection with January 6th. That hasn't happened. We're a long way away from a conviction in January 6th. We don't know if the charge would include seditious conspiracy. And also what Mary's been talking about is just the government recommendation. And very often a judge doesn't follow it.
However, the people who say that the former president won't do a day in jail, even if he's convicted, this is a good counterpoint. That is, I think, way too early to make that assessment. Just because you're under Secret Service protection does not mean that
that you are not going to do jail time. And especially if there's a seditious conspiracy charge and conviction against the former president, it's pretty hard to go from 25 years to zero. So, you know, I think that's one of the ways the take home here was like, you know, the people who think that he won't do a day in jail, no matter what he's charged with and convicted of, I think this is a really good counterpoint.
And just before we move on, you know, like you flagged, don't know whether there'll be charges or what they'll be. And they could very well be other things, not seditious conspiracy. There's that link there between the violence that would still need to be shown. But but the point is the same. All of it was part of a bigger scheme to override the will of the people. Yeah, absolutely. We'll be right back with more of prosecuting Donald Trump. Fannie Willis's immunity deals.
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. So we're sitting here on a Monday morning and we know that in Manhattan there is a jury that's listening to closing arguments in the E. Jean Carroll case.
There are a couple of things I wanted to talk about. One thing I just wanted to remind people that's really interesting is the ways in which this is similar and dissimilar to a criminal case. First and foremost, the standard of proof. Mary and I did cases where you had to prove a case beyond a reasonable doubt. That's the highest standard in the law.
That is not the case. This is a civil case. There's no jail time. And the standard is preponderance, which means just a hair more than 50%. So that's the standard. It's much, much lower. But the other is the makeup of the jury. In a criminal case, there are 12...
jurors who deliberate and there has to be unanimity whether to convict or to acquit. Either way, the jury has to be unanimous. It's not that if it's 11 to 1, you automatically get a conviction or acquittal. You get a hung jury if it's anything other than unanimous. Either way.
So the unanimity requirement in a civil case is exactly the same. It has to be unanimous. Another difference is it's not 12. It's anywhere from, under the federal rules, it's anywhere from 6 to
to 12 jurors, and it's up to the discretion of the district judge how many jurors are put on the jury absent the parties agreeing to some different rule, which didn't happen here. And in this case, Judge Kaplan, who's presiding, has selected nine jurors. And so unless one of the jurors gets excused for some reason, there'll be nine jurors that will be deliberating. And that means that all nine have to
agree one way or the other. So, Mary, something that's got a lot of attention, and I wanted to know if you agreed with me on this, is a lot of people have been talking about Trump not testifying. And, you know, there was a whole back and forth where Kaplan basically had knowledge of Trump in Ireland saying, I'm coming back to New York and I'm going to confront her. But at the same time, he had...
Trump's defense counsel saying that he's not testifying. So Kaplan basically called him out on that and said, you know what, I'm going to give you till Sunday because you can reconsider. And I want to know that you, Trump counsel, have spoken to Trump. And I want to make sure that there isn't going to be some claim later that this didn't happen. And he basically is like, look, dude, you're saying you want to come in?
Well, I'm giving you another chance. So if you really, if what you're telling the public is true, you can come on in. And sure enough, Trump decided he wasn't going to testify. I think that probably was a very, very smart decision. For the same reason, it was a smart decision that although he said he wanted to come in and talk to Robert Mueller in our investigation, he didn't. He's not going to do very well.
But I do think that it's a little bit wrong to say he's offered no defense and that the jury hasn't heard from him. Because, well, obviously, a defense can be through questioning and it can be through argument. But the other is, remember, Donald Trump, like E.G. and Carol, they were both deposed. That is, they gave under oath videotaped sworn depositions
prior to the trial, and that's just a normal part of civil practice. And there were lots of segments of the Trump deposition that were played to the jury, including where he said that he didn't do this. - Right.
heard, not live, but they have heard him say it. Now, it's different with a person appearing in court, but if you're Joe Tacopina, it's a way of getting that statement and his position in front of the jury without
maybe the visceral problems of them hearing Donald Trump and the loose cannon problems. Yes, that would be, yes, that's the point. Of him being on the stand. Yeah, you know, for you and I, who most of our practice was trying criminal cases, and I actually tried sex offenses, it's,
really uncommon for the defendant to take the stand generally in criminal cases, but oftentimes in sex offense cases. And so it's not uncommon for them to put on no affirmative case, meaning put on none of their own witnesses, put on no evidence, but instead defend their case through cross-examination, poking holes in the victim's story, poking holes in her credibility, poking holes in the credibility of
her witnesses and all of the prosecution's evidence, and then making arguments about that in closing argument. And so the fact that this is a civil case based on a rape charge, a claim of rape, I'm not surprised that Joe Takapina chose that same strategy, the strategy that's pretty common in a criminal case. And I agree, it's not that there's no defense put on, it's just that there's no affirmative case put on, none of their own witnesses.
And he had the advantage here that you wouldn't necessarily get in a criminal case of also being able to elicit what he wanted to elicit in the denials by the playing of the deposition. So whether jurors frequently, I think, are curious and would like to hear from a defendant in a case, and certainly in a criminal case, they get an instruction, usually, often, that they can't take anything from the fact. If the defense wants the instruction...
The jury can't draw any kind of inference of guilt from the defendant's choice not to testify because he has an absolute right under the Fifth Amendment not to testify. That's not the case in a civil case. He certainly has a right not to testify, but it's not the situation where
Because of the Fifth Amendment, you get this sort of extra special treatment and instruction to the jury that they're not to draw any inference from that. Yeah, I mean, I think that, you know, the downside obviously is that the jury doesn't really get to assess credibility in the same way. They can assess it in a more abstract way.
bookish, analytical way of whether what he's saying makes sense, whether it fits. But it's harder from just listening to a video and not seeing the person react at the time right in front of you. It's a little harder to get a feel
for whether the person's telling the truth or not. But we'll see what happens. And it seems one-sided, right? It seems one-sided too because they got a feel for E.G. and Carol and they're left to speculate about Trump. Yeah, exactly. So look, we're all going to be on pins and needles. There's a reason that
in lots of dramas, whether it's in books, theater, movies, involved trial courtroom scenes, is because it's inherently a dramatic form because there's an outcome that you don't know. And we're all in that situation where we've seen it play out, at least from reporting and podcasts and lots of tidbits, but we'll see what happens. And we'll come back to you as soon as there's a verdict
to give an analysis of what we think happened one way or the other. So Mary, I look forward to having that discussion with you. Yep, me too. Thanks so much for listening. The senior producer for the show is Alicia Conley. Our technical director is Bryson Barnes. 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.
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