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Hello and welcome to another episode of Prosecuting Donald Trump.
Well, in the last 24 hours, there have been a series of bombshells in Trump's legal cases, throwing off completely what Mary and I had planned to talk to you about. But it's going to be really fun because there are so many different issues. There's a number of different developments in the documents case in Florida. And there are also some really important things we want to talk to you about in the D.C.,
January 6th investigation, all of which are sort of breaking news. And we wanted to give you our take. And Mary, once again, I've heard you on the air, but we haven't had a chance to talk about it. So I can't wait to get to all of this.
Good morning, Andrew. This is one of these interesting situations we're in now where in our prior lives as the prosecutors, we knew what evidence we had. We'd listened to the tapes, but on the outside, you don't always get these previews that we've been getting. And
Last night was a big preview because notwithstanding that the indictment already had some portion of the transcript of the tape from Bedminster, listening to Mr. Trump's own voice, it really changes the game and anxious to talk more about that.
Obviously, there was a partial transcript in the indictment. You and I have put that stuff in charging instruments. By the way, we haven't really talked about this, like what you put in and what you take out of an indictment. You typically don't put in witness testimony, like what a witness says or even evidence coming from a witness, because you don't want to sort of lock yourself in. But you would put in something that is
a tape recording, like transcript, at least a portion of it. You might put in texts or emails, things that are sort of very hard, definitive, where you sort of know exactly how it's going to come in at trial. So there was a part of the transcript, but now we actually have been able to hear the tape recording, at least the relevant part of it. And it really is so interesting to me how
much more information you get and how much more forceful it is. And it reminded me so much of, you know, we wrote a 400-page written report in the Mueller investigation. And Robert Mueller is such a great old-fashioned guy. And he's like, oh, here's this really detailed report, and you can all read it. And why do I even need to talk about it? Because it's on paper.
And as I've said, we're a bunch of nerds, so we're used to that. We went to college and law school and we're used to reading until our eyes are blurry. But the genius of the January 6th committee was understanding that people get their news and their information in all sorts of different ways. And this is a little microcosm of that, which is actually hearing the tape recording, I thought,
It conveyed so much more information. And even when it was just repeating what was in the written transcript, it was so much more accessible. I don't know what your initial takes were. Yeah, I have two. One is that it's such incredibly strong proof to rebut a lot of the defenses that Mr. Trump and his attorneys have been floating out there. And I want to get into how it is that we both, I think, agree that this will come into evidence or should come into evidence.
But secondly, maybe before that, I think we just can't have a podcast without acknowledging, wow, this demonstrates his callousness toward serious national security information. He used this entirely because of his petty ignorance.
rift with General Milley, who was working on a book and had apparently suggested that President Trump had been egging on some sort of attack on Iran during his presidency. And he wanted so badly to disprove that, that he was willing to
Apparently show again, we still haven't seen or know exactly what he was waving around, but at least by his own words, he was showing to authors as well as unauthorized staff members of him.
Maybe two more, maybe more. I don't know how many people total were in that room. He was showing and talking about classified information that he was acknowledging that was classified. He was acknowledging he couldn't declassify it. And it was about
plans with respect to one of the United States adversaries. So to think that you would use classified information for your own personal political purposes, again, it shouldn't surprise us about Mr. Trump. And I've said this before and you've said this before, but here we're hearing it, right? There are things that weren't in the transcript, but with like, can you get us some cokes while we're like looking at this secret information that I'm not supposed to show you? Can you please get us some cokes?
And the other thing is the laughter. And it's not just his laughter and his wanting, see, see, see here, this proves my case. This proves my case that Millie's wrong. He's the one who wanted to take this action. You hear people laughing. So everyone in that room was not taking this seriously, but especially the former commander in chief from whom we should expect better. And I don't want to get into the details of this, and I'm sure you don't either, Andrew, but our-
National security agencies, they prepare lots of different intelligence and planning, not necessarily because they're encouraging the president to take some particular action, but because to always be in a state of readiness, right, to always be prepared.
With respect to our adversaries, we want our intelligence community to be constantly thinking about what are our defenses? What are our offenses? What are the kind of situations that might cause us to take action? And so it's also just a total misuse of this type of information to suggest that.
to those authors and to his staffers that somehow this was evidence that the Defense Department was encouraging some sort of attack. So I can't move past, you know, to get into the nitty-gritty legal details of admission, which I want to get to without at least acknowledging that. Yeah, I totally agree that there's ways to read this big picture and little picture. And the big picture is definitely what you're saying, which is, as people who were in the intelligence community...
just so hard to stomach the cavalier nature with which this is happening. The small picture is that it is just a prosecutor's dream. I mean, you don't usually have your defendant on tape
committing the crime. So, I mean, he's charged with retaining national defense information. He's not even charged with disseminating it, although here he's on tape doing that. But there are so many pieces that were sort of very interesting in the details. For instance, it's
It's clear that he got the document from a staffer because he says, show me this, like, hand this to me. So clearly the government will have talked to that person, so they will have that. Also, in the indictment— It also means that person has exposure, right? Oh, absolutely.
Absolutely. You can imagine that person may have been immunized and told the government what was said and what he did or she did. There were at least two staffers there, and then there are the ghostwriters, and you can be sure the government has talked to all of them. So that document is being given.
To Donald Trump, they're also, it's really clear that it's not just a newspaper or a magazine because you just can't show that and say, see, it's classified and highly sensitive. I mean, if I showed you the New York Times, Mary, and I said, look, this is highly sensitive and classified, you'd be like, are you on crack?
Yeah, it says New York Times on it. Yeah, so that's not the case. And also the indictment itself, if you look at the language in the indictment, it says that the president knowingly showed that
classified documents. Classified documents is how it's phrased. So they actually know more about this than is in the indictment. As we talked about, what you put in an indictment is a real art about how you do that. You tend not to put in all of the evidence you have from witnesses. But let's talk for a moment about the admissibility because I think there are lots of different ways this could be admissible. I think it's important for people to understand that
that the documents at issue in this tape are not charged. They're described in the indictment, but they're not charged as one of the 31, presumably. There may be a variety of different reasons for that, but it doesn't mean that it's not admissible. It's also really clear that if you're in the defense lawyers, you'll try to keep it out. But here's, I think, a sort of interesting chess game of...
Let's assume that the defense tries to keep it out, and let's say they prevail. And Judge Cannon says, "You know what? I think that it's more prejudicial than probative because it's not one of the 31 documents."
This can then be charged in New Jersey. I mean, it could be charged now in New Jersey, but you could understand the government not wanting to pile on and not doing it. But if the judge were to keep it out of Florida, to me, that's just an invitation to Jack Smith to say, oh, you don't think this evidence should come in in Florida? The defense doesn't think it should come in in Florida. So guess what?
that's fine. We will charge it in New Jersey. And now you will face two indictments, not one. And I have an anecdote because Mary, as you know, by now, I obviously have an anecdote for everything. But when Paul Manafort was deciding whether he wanted to be charged in D.C. and have everything in D.C. or whether he wanted to be in D.C. and in Virginia, and he chose
two jurisdictions, not one. I remember the judge at the time being very surprised by that choice. I remember my agent on the case said, that's like deciding that you want to play Russian roulette with two bullets in the chamber, not one. And so there's sort of an interesting strategy call for the Trump team if they are going to seek to exclude this, whether they're just going to invite a second indictment.
Yeah, it's a great point. And, you know, I'm sure they are assessing that. I do still expect they probably will try to seek to keep it out. But let's talk about that before you get to that assumption of the judge potentially finding it more prejudicial than probative. Because I know that some people have thought, well, this has all happened in
New Jersey. So how can this come into evidence here? And, you know, you're just making the point. This could get charged separately in New Jersey. But there's a rule of evidence that applies in all criminal cases that you and I probably used so many, many times in our prosecutions. I certainly know that I did. And that rule says that in general, other crimes or wrongful acts that a person did cannot be introduced into evidence in order to prove that the person committed
acted in conformance with something they did some other time. Because the idea is you're only on trial for the things that are charged and not for other crimes. And so bringing in other crimes just can make you look bad. It looks like you're a repeat criminal. And so you normally can't bring those in. And remember this, as you've just pointed out, Andrew, this
Tape is evidence of other crimes in New Jersey. But there's an exception to that, which is a very significant exception, and it's Rule 404B. And I think what's so interesting here is almost everything that 404B lists that you can bring other crimes in for is almost something that this tape will help to prove. So 404B says...
Evidence may be admissible for a different purpose, right? Not to prove a person's character to show action in accordance with that character, but it may be admissible to prove motive, opportunity, intent, preparation,
Plan, knowledge, identity, absence of mistake, lack of accident. Right. So here to show that he knowingly retained national defense information after he'd been asked to return it. This shows he knows he's got national defense information because he's talking about it being information about an attack on a foreign power.
He knows it. And he also knows it's classified. He knows that he has not already classified it, contrary to some of the things he said recently about, oh, I instantly declassified everything when I left the White House, because this is July 2021, six months after he left the White House. And he's saying, I can't declassify it now. I could have done it before, but I can't do it now. So it shows lack of accident, absence of mistake.
And I could go on and on. So this is sort of classic 404B evidence that should be admissible. Now, the rule you mentioned where a judge could exclude it is rule 403 that says that a court can exclude relevant evidence from
Such as what we've just been discussing, if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
And here, I agree that gives some wiggle room to a judge who wants to keep it out, but substantially outweighed all relevant evidence is probative. That's why the government seeks to introduce it. So just being prejudicial, I mean, all relevant evidence is prejudicial. That's why the government wants to introduce it. So just being prejudicial is not enough to keep something out. It has to be substantially outweighed by unfair prejudice. And I just don't see
anything unfair about this tape coming in at the trial of the Mar-a-Lago documents case. I agree with you. In any normal proceeding, a judge would say this is coming in as 404B. And just to be clear, for the lingo, this is the kind of thing that people just cite it as the rule. It's a shorthand for people who are trial lawyers to know it's called other crimes evidence.
And there's always 403, which you properly referenced, which is just, as you said, it's so unfair that it should be excluded. I think that's totally right that that would happen. It is important, though, for people to know that while it's really relevant to this case, the defense, even if it comes in, will say,
these documents are not charged. Whatever happened there, you should ignore because it's not actually charged. And the government will say, no, it's relevant to a number of things, but it isn't actually a central charge. In other words, the documents or the information itself is not charged. So this issue that it's the reason that Ryan Goodman and I wrote this piece about what's going on, why didn't they charge this? Why did they charge it in New Jersey?
because there is this sort of hole that led us to speculate, I would say educated speculation, about whether this is a potential backup plan on their part, depending on what Judge Cannon does with the case and how she, for lack of a better term, behaves herself. Perfect segue, Mary, into Judge Cannon and other rulings she made. One is that she agreed with the government that the first...
sort of in-court appearance in front of her should be July 14th to start discussing SIPA, which we talked about. It's so great. Just last week. It's behind us. We just talked about it. So everyone's up to speed and knows all about it. So July 14th is a date that she agreed on, and everyone's coming in to talk about that. She asked for the
defense to set forth their position on the trial date, because we all know that Jack Smith asked for a real and firm trial date of December. And Judge Cannon said, I want the defense to submit something by July 6th. So again, that's good. And she presumably will either rule on it or she'll hear from the parties on the 14th about it.
And then there's this ruling on the so-called 84 witnesses, which I don't know about you, Mary, but I think this is why it's really good to have a podcast where we can talk about it because I think it's been kind of misunderstood. And once again, we're in violent agreement. So tell me your take. And then I just know I'm going to be saying I couldn't agree with you more. Yeah.
So people may recall back at the time that Mr. Trump was arraigned, the magistrate at that time said that he was originally going to order that Mr. Trump have no contact at all with any witnesses or with Mr. Nauta. And then he modified that to no contact with any witnesses about the facts of this case. And he said, government, you come up with the list of witnesses and and submit it to the defense.
There was no requirement that the government file that list of witnesses with the court. It was you tell the defense who's on that list. Defense, you're not allowed to contact any of those witnesses and talk about the facts of the case.
So I think what the government was trying to do was say, we're going to file this list of witnesses under the seal because they wanted to then have the court essentially extract from Mr. Trump and Mr. Nauta a written commitment that they wouldn't engage in any kind of discussions with these witnesses and get the force of the court behind this.
But Judge Cannon parlayed that and said, look, it's not clear to me at all why you're filing this list of witnesses with the court or why you need it to be under seal. Now, of course, we know why you would want it to be under seal, because not only might Mr. Trump or his accomplices.
allies try to contact those witnesses. But if he goes out and talks about them publicly, all kinds of people might come out of the woodwork and intimidate and threaten and harass those witnesses. So it's easy to know why the government wanted it under seal. But I think Judge Cannon was saying, you don't even have to file this
with the court. And you haven't told me adequately why you're doing that. Meanwhile, we've got the press trying to tell me that it shouldn't be under seal. So I'm just going to deny your motion, government, without prejudice, to refile and give me some other explanation. And then I'm going to deny the request from the press to see access to this list as moot, as no longer at issue because I'm denying your motion. So I don't see this as a big deal because the original magistrate's order, which was a
condition of Mr. Trump's release was no contact with witnesses about the facts of the case, the witnesses that the government will supply to you. That is still a condition of his release. If he violates that condition, he can be hauled back into the court to answer for why he violated a condition of his release. That's my take. So I agree with
almost all with a slight variant. Isn't that great? We figured out something where it was slightly different. It's probably just something I didn't think about. And then I'll probably agree with you. I doubt it. I'm going to say it and you're going to be like, that's wrong. So I agree with you that it's not the case that she's saying that list of 84 people is now public. That's not at all what she's saying. She's just saying, don't file it with the court. She also wasn't saying that
the list of 84 people, you're free to talk to them. She wasn't saying that either. And the magistrate judge's order is still in place. And this was just a question of whether it needs to be filed or not. And it's definitely not something the government was required to do by the magistrate judge or by the district judge. This is where I just have a slightly different take on why the government did it. I feel like the government did it because they
Just as a matter of the record and wanting to have it be very clear and not be faulted for not sharing what they're doing with the court, they wanted to make sure that there was a clear record of who's on the list and that the court was fully informed of it.
If I were a judge, I certainly wouldn't take the government to task for doing that. It's odd to take the government to task when you're giving more information. And so I had a problem with her tone and the way she did it.
But I also do think that although it was obvious why they would want it under seal, and she didn't really need to belabor that. And of course, if they do refile this, there's ample reason for it to be under seal. We used to put names of witnesses and identifying information previously.
when I was a prosecutor, always under seal so that they wouldn't be harassed. So there's substantial authority for it. So I thought she was a little persnickety on that. But her big picture point, which is I don't need to see it, is probably right. Although...
I can totally understand why the government did this. Oh, I can too. When I would provide discovery to the other side, I'd oftentimes provide the cover letter that went with that discovery to the court just so it was in the record. They don't really want to necessarily see that. But I thought if we ever have a dispute later, I want to have said, look, on X date, I provided to the court the letter that I sent on that date with that date on it, right? Absolutely. So that's sort of the Florida developments that are really key here.
And there's a lot that we'll be discussing because there's so much coming up. But as just a spoiler alert is that when it gets to SIPA, which may be sort of the heart of the matter,
That's where, Mary, you and I are going to really be having to do tea leaf reading at best. And it might be teeny tiny tea leaves because so much of this may be under seal. So we're really going to have to be getting our microscopes out to try to inform people about what's going on and base it on a lot of our experience litigating these issues. More prosecuting Donald Trump, the Bedminster tape in a moment.
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. Let's turn for a moment to the January 6th investigation because I was really fascinated by just how much that is picking up steam. There is reporting about additional Secret Service people going into the grand jury and being interviewed. Note to self, I just find that fascinating because in my experience, there are a lot of issues about putting Secret Service in
in that position when they're witnesses because they also have a primary job of protecting the people they're assigned to. So it's an unusual position. This would be the unusual case where it's important, especially given the history of the Secret Service and what's come out about them in the January 6th case. So it seems highly appropriate.
because they're such percipient witnesses. So there's a lot of reporting about the so-called fake electors and potential cooperating witnesses. And to me, this is all a sign that Jack Smith is really moving forward
a pace on that investigation. For those people who think that he was just going to bring the documents case and not January 6th, I just think that's completely wrong. I really do see this as his understanding the need to be able to go forward quickly. But Mary, what was your take on sort of all this news about the grand jury work and the interview work in D.C.?
Oh, I totally agree. And some of the names we've just heard recently, like Michael Roman, who was somebody who seems like one of the ringleaders responsible for this whole fraudulent elector scheme. And by that, we're talking about the scheme to have alternate slates of electors. The Trump electors actually meet on December 14th, the date that all the electoral college meets, cast their votes for the former president.
and then submit those votes to Vice President Pence at the time and to the others required by laws in the hopes that Vice President Pence on January 6th would accept those votes over the legitimate votes in the swing states, seven different states where Joe Biden had won.
or just send those votes back to those states to have the state legislatures intervene and hopefully, in their view, decide to submit Trump electors. And the people that have been recently going before the grand jury are people who were very much involved in all aspects of that, right? Kenneth Chesbrough and John Eastman and the whole idea of we should encourage electors to meet on December 14th, the electors for Trump. We've got Roman and
Brown who were part of like, let's make sure those fraudulent stakes of electors get over to Capitol Hill to former vice president. Well, at the time, current vice president Mike Pence, so that he can take action based on these other electoral college votes.
And then there were other people involved in pressuring the state legislatures to undermine the will of the people in those states, either through submitting on their own a slate of electors that they would choose or for them to say once if they were successful in getting Mike Pence to send things back to the states for those state legislatures, then to step in and say, now we're submitting our Trump electors. So it was a multifaceted plan. And we're seeing
people who have knowledge about each one of these parts of the plan all going into the grand jury. And that really suggests that Jack Smith is not giving up on this case at all. He's full steam ahead. So I had the same reaction. And with somebody like Roman, especially if he ends up flipping, it'll be interesting to see whether he does or not.
You know, one way of looking at this, which would be the most innocent way, is that different states organically came up with this issue and it was a grassroots thing and different states happened to have different ways of approaching it. But that's not what happened. And the reason Remnant is so interesting and the people within the campaign is because you have this top-down reaching out to the states that would be involved.
So it's an orchestrated scheme as opposed to electors thinking, oh, we're just an alternate slate in case there were to be a successful legal challenge. That's the innocent defense. But what's happening here is that's not at all what was being thought. And that's the critical proof that Jack Smith needs to develop, that this was not, oh, if we were to prevail, these are there as the potential candidates.
alternate slate. And in fact, there's obviously this reporting of we need to stop calling it fake electors and need to start calling it like an alternate slate. It's kind of like alternate facts, right? Yes, exactly. There are facts and then there are alternate facts. Yes. Otherwise known as fake.
Exactly. So I'm not sure alternate helps, but I see what they were trying to do. Yeah, at least Kellyanne Conway first went to alternate as opposed to the fake electors who first went to fraudulent electors and then said, oops, maybe we should go to alternate. But yes, I think Kellyanne Conway ruined
that as an innocent explanation. Totally. And what you're talking about is conspiracy, right? If it was organic, we wouldn't have a conspiracy. But what it's starting to look like, again, from the drip, drip, drip, is that certainly that's what Jack Smith is looking at. And there are definitely plenty of people involved that it looks very suspicious.
Yeah, so as much as we've spent a lot of time focusing on the documents case, I really do think that our eyes should be kept very firmly on D.C. and what's happening there, because I think that is where Jack Smith is focusing right now. He's got a team that's going to be getting the case ready for trial and moving things along and making sure all the ducks are in a row and all signs are that's what he's doing in Florida.
But I think that the action is really getting the next case ready for indictment. So I think that's what we're going to be talking a lot about in the days and weeks to come. Okay, Mary, well, we found one tiny little thing to discuss that we... Actually, I think you're right about it. Yeah, I don't disagree. Yeah, I think you're right. Sorry.
Sorry, listeners. Damn. So, okay, stay tuned because Mary and I are going to find something that we disagree on so that we can have a total... I mean, it might be music or something, but, you know. Yeah, that's probably likely because I was on Ari Melber and he's constantly referring to, like, 21st century music. And I remember turning to him saying, listen, if that's after the 18th century...
I'm out of here because I like basically like classical music and then I stop. It's like, yes, I am that nerdy. So I have a feeling it can be about music. We'll disagree on that. Okay. Well, can't wait to talk to you next week unless there's breaking news and we see each other sooner. Absolutely. Looking forward to it. 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 is a segment producer. Our technical director is Bryson Barnes. Our audio engineer is Bob Mallory. 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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