The First Indictment
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Hey, this is Chris Hayes. Well, it's been a truly historic week as a Manhattan grand jury voted to indict former President Donald Trump. I'm assuming you know that by the time you hear this. Well, MSNBC legal analysts and veteran prosecutors Andrew Weissman and Mary McCourt are back with their insights based on their 50 plus years of collective experience building some of the most complex criminal cases in U.S. history.

This podcast is a special inside look at how prosecutors from Alvin Bragg to Fannie Willis to Jack Smith build their toughest cases. Please join me in listening to Prosecuting Donald Trump, the First Indictment with Andrew Weissman and Mary McCord. And if you like what you hear, please subscribe to their feed for future episodes. This is Andrew Weissman. I'm here with Mary McCord. Good to be back again. The plot continues.

So one thing, Mary, that I thought it would be useful to discuss is really trying to make sure that people understand what's about to happen now in terms of the Manhattan case.

There will be an arraignment by all accounts next week, absent the former president deciding not to self-surrender and having to be extradited. Although, note to self, when I was thinking about if he doesn't agree to self-surrender, he's supposed to be in New York next month for, of all things, a civil case where he is accused of rape.

And that is supposed to happen at the end of April. And so he needs to appear for that so he can be arrested then if he doesn't self-surrender. And if he doesn't appear for that, a default can be entered against him in a case where the allegations are quite serious. So there's a lot of reasons for him to actually just show up now. Yeah, it's a good point.

So one of the things that people should be aware of, though, is that

Well, everyone's been waiting for the rule of law to be imposed and to see the day of reckoning where he is actually subject to criminal charges. But there's going to be a long time, as you and I both know from having tried a ton of cases in a variety of different jurisdictions, that you don't just indict somebody and there's a trial the next day, that the defendant is entitled to

so many procedures. And I think people don't really understand as prosecutors that that's sort of embedded in us, that that's sort of what we expect and know, which is that a prosecutor is advocating for the government, but they also have a lot of obligations to fulfill their obligations as part of the due process classifying

clause of the Constitution. So discovery is turned over, all sorts of search warrant material is turned over, and then the defendant's entitled to make all sorts of motions for more discovery, Brady material, that's a sort of exculpatory or impeachment evidence. They can make legal motions that, Mary, I know you used to be an appellate lawyer. So, you know, that's

Thank God, because that's not my forte. And I was wondering if you could talk about what, if anything, you saw in terms of ideally, you know, we don't know exactly what's going to be charged, but we're certainly hearing about this idea that emotion is going to somehow end all of this and that the defense could do that. And I wonder if you had thoughts on that.

Yeah. And, you know, you're right. There's so many things that have to take place between an indictment and arraignment and the actual going to trial. And even though there are speedy trial rights, you know, in the Constitution and by statute, that process just takes time, particularly in a case like this where there's going to be voluminous amount of discovery turned over and motions practice, etc. We're already hearing, though, that

from some of Trump's former lawyers and current lawyers that, oh, motions to dismiss are going to be imminent. And it's interesting because motions to dismiss a criminal case, that's not the most common thing, right? That always happens in almost every civil case. A civil case is filed, the defense says, this should be dismissed because you failed to state a claim or all these other reasons. And sometimes cases are dismissed right there at that early stage.

In a criminal case, it's very different because there aren't that many grounds where you could get an entire criminal case thrown out on legal grounds by a judge because normally criminal cases are based on a factual scenario that's alleged in the indictment that violates laws and that the legal issues get resolved by a court in advance of a trial. But then during a trial, that's when a jury or a judge, if it's a bench trial, there is such a thing as a trial without a jury called a bench trial.

That's when the factual issues get resolved. But here, you know, we're already hearing, you know, we've been hearing for some time that, oh, this prosecution is politically motivated. So I think one thing that the defense might try to do, and I think they'll be unsuccessful in doing this, is move to dismiss the entire indictment on grounds of vindictive prosecution, that this is vindictive against the president.

But I'll say, you know, that's pretty unlikely to succeed. Vindictive prosecution isn't just about is it politically motivated? And I would say, I think that that's, you know, that's an argument for a lot of talking heads on TV to talk about. But

But if Alvin Bragg has had a grand jury decide that there's enough facts to support each element of the fence that is being charged beyond a reasonable doubt, then whether there's political motivation or not political motivation in many ways doesn't matter. There's sufficient evidence to prove a legal case and there's reason to bring it.

But vindictive prosecution isn't just about political motivation. Vindictive prosecution means that the prosecutor is actually retaliating against a defendant for that defendant's exercise of a constitutional right or exercise of some right he has. So, for example, a classic thing would be a –

a prosecutor charges, let's say, a misdemeanor and the person says, "I want a jury trial on this misdemeanor," and the prosecutor says, "Well, okay, now I'm going to slam you with five felonies," that still might not carry the day because you'd have to look into the prosecutor's actual motivation. Was it actually to retaliate for that person's exercise of a right to a jury trial? Or was it the case that additional facts came to light that justified five felony charges?

In fact, some years ago when I was the criminal chief in D.C., we had the Blackwater case. This is a case involving the Blackwater guards who committed a real, just a heinous and atrocious series of shootings in Nisar Square in Baghdad, killing I think 17 Iraqis. And a number of these guards were

were charged, they were convicted. That case was reversed on appeal because of reasons that had to do with

information being used against them that had been provided without Miranda warnings. And it wasn't because law enforcement didn't give Miranda. It was because the State Department had done interviews as State Department contractors without providing Miranda rights. So we had a second set of charges after that, completely clean of any of that, quote unquote, tainted information from the original interviews. And in that second set of charges, we had charged one of the individuals with manslaughter and

He then appealed to the Court of Appeals saying the statute of limitations for manslaughter has run. I can't be charged for manslaughter. The Court of Appeals agreed with that. So our office then charged him with first-degree murder. We had all of the facts to support first-degree murder. But we did say to him, if you want to waive the

statute of limitations for manslaughter, we'll go back to the manslaughter charge. And instead, he said, no, you're vindictively prosecuting me. He was convicted. He appealed that. He argued vindictive prosecution. And the Court of Appeals said, no, the facts supported first-degree murder. The government was put in a position of either not having any charge to hold him accountable for murdering someone or to charge first-degree murder. That's not vindictive

prosecution. Now, obviously, that's a very different example than what we're talking about here with Trump. But I say that just to say that, you know, there's nothing what right was was Trump? Would he be saying that he was exercising that Alvin Bragg is retaliating against him for? There really isn't anything unless he would say, I've been out here talking and speaking and exercising my First Amendment rights and you're retaliating against me for that. But I don't think that's likely to go anywhere.

Yeah, I agree with you. I think that's where the facts will matter. This reminds me of something Amy Berman Jackson said when she was sentencing Paul Manafort and all sorts of similar things were going on. There was a whole alternative reality that was trying to be created in their briefs and public statements. And I still remember she sort of started the hearing by saying,

this is a place in America where facts and law still matter. And, you know, I think that's sort of what we're seeing is this clash of two worlds. And that's why I think you're going to see Donald Trump just taking on so much the...

uh the legal system because that's where he's going to be held to a to account and he's going to try to litigate this in the court of public opinion and that's just not the way it works and like you said at some point the judge could say to him you need to stop talking like that

Yeah, knock it off. And this is where, you know, remember Alvin Bragg, if you want to say it's selective, this is the DA who very famously took a huge political hit in the press by saying this case isn't ready. And having, you know, one of the prosecutors very publicly resign, and now he does say it's ready. So that doesn't really help with the defense saying this is some political persecution. So, you know, one of the things, Mary, that

that we have talked about both offline and I think in the last episode was the issue of like that we've got these four separate cases and what the interactions are or the lack thereof. And one of the things that I was thinking about, I don't know if you agreed or disagreed, was how this might sort of not directly, but sort of indirectly affect both Jack Smith and Fonny Willis, because

We've crossed a Rubicon. We have shown that in this country, like other countries, by the way, because it's useful, I think, to think about the fact that what we see as novel here is not novel in a lot of the rest of the world where current and former leaders are held to account. But I think it may make it

easier for them to bring charges, not because there's a lower standard, but that they aren't going to be thinking that they have to meet a higher standard because they've seen that, you know what, this is what the rule of law requires. And that I don't know that they might say that to themselves immediately.

intellectually, they might just say, no, no, no, I follow the facts and the law, but it's hard to think that it doesn't have that. I was trying to put myself in their shoes and what I might be thinking that once this is done, that extra burden, it reminds me of

You know, I've done public corruption cases involving police officers. And, you know, everybody knows when you charge a police officer, you have to have extra proof. It was just so hard, at least in Brooklyn, to bring those cases. And so I just think that this takes some of that off of somebody, even if they're not thinking about it consciously. Yeah.

So that's so interesting. I think there's no doubt that this is something that at least subconsciously, like you say, that Fonny Willis and Jack Smith and their whole teams will be thinking about. Um,

And I wonder also if it doesn't, if they don't feel maybe a little bit of more pressure to move quicker. Now, one could say, how does that work? Because we already have one case. But I think that, you know, I think they recognize that the cases they're investigating do kind of go more to the heart of the attacks on our democracy than this case. This is an important case. It's a substantial case. We haven't seen the indictment yet, but based on what we know, I don't think it's

I don't think it's an unimportant case, but it is a little different than the others. And I think if I were them, I would actually be feeling a little bit of pressure to move more quickly to get that narrative out in front of the American public to show that, look, the president will also be held accountable for the behavior that reoccurred.

really sought to undermine the peaceful transition of power, at least with respect to the Bonnie Willis and the January 6th case. Mar-a-Lago in a different category, but also in a category of something really significant to sort of our –

our national security and how we as a country do protect our secrets and what we expect of the president in his role as the chief executive and commander in chief to understand and follow the rules when it comes to classified evidence. So I also think that

because that Mar-a-Lago case also has this obstructive element, which is obstructing a national security or criminal investigation. And I don't know how you felt, but like when I was a prosecutor, that crime I thought was particularly important to vindicate because that's the heart and soul of how a case is done. If you don't have any sort of deterrent value for people obstructing, it's just going to happen over and over again. And so you sort of took it

sort of with an extra dose of seriousness because you and your agents knew exactly how that could play out. And by the way, I think that your point about speed, I was thinking about it as you were talking and I was thinking that if I saw those attacks on Alvin Bragg and what he's going through and I thought,

I could make my case sooner and stand in solidarity with him and take some of that heat as well, I would feel like that's my obligation as part of the job.

and not letting him sort of hold the whole bag unfairly. So I totally agree with you. But just to turn to Mar-a-Lago, which is, you know, there was a lot of news this week with Mr. Corcoran going into the grand jury. And, you know, that's a grand jury in the district where you practiced for many, many years. I think you may know Mr. Corcoran just from your experience. And I was wondering what you thought of that and the import of that in terms of that particular case. Yeah.

Yeah. No, I do know Evan Corcoran. We started in the U.S. Attorney's Office many, many years ago, very close in time to each other and worked together for some years. And I've just known him sort of personally outside of our work. And I do think it's really significant any time that attorney-client privilege is pierced like it was here, pierced for reasons of crime, fraud, exception. We still don't know for sure what, well,

We don't know at all what he said in the grand jury. We won't know that for some time, but I think it's very significant. It will be significant to the grand jurors to hear from him, to have heard from him. I think the timing of what...

his involvement in the case is given where he came in and to the obstruction charges that you were just talking about Andrew I think Evan Corcoran was in a position to probably offer some pretty significant evidence that either makes or breaks those charges and I think that's why Jack Smith wanted his testimony so badly and why Jack Smith went to the chief judge to seek a court order piercing the attorney-client privilege so that he could testify and

You know, that's something, as you said, that obstruction is part of what then gets to the heart of the rule of law and accountability. And it does add a really separate element to any type of criminal investigation or any consideration by a grand jury of charges. More of prosecuting Donald Trump, the first indictment, in just a moment.

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So Mary, I think the final topic I thought we could address today is something that you and I know very well, but it's kind of a tip for people, which is something to look at. And we saw it in the Manhattan case, and it's something to keep in mind, I think, for Mar-a-Lago, which I think may be in many ways next up, depending on what Mr. Corcoran, as you said, said in the grand jury, which is this idea of seeing defense counsel making a presentation to

to the prosecutors. So one of the signs for me in Manhattan that this case was, to use a loaded term, imminent, was learning that the defense had gone in and made a presentation. And in my experience,

You know, we did that all the time. Like in the special counsel investigation, everybody was given an opportunity to tell us why we got the facts wrong, why we have the law wrong. And then even aside from that saying, even if you're right, this is why you should exercise your discretion and still not go forward. My practice was always, if any defense lawyer wanted that opportunity, absent real risk of flight concerns where you had to sort of nab the person before they could abscond,

which obviously is not this case with Donald Trump, you always did it. It didn't make any sense for a whole variety of reasons. And I didn't know if that was your practice. And also if you had the same thing where when you see that, you sort of assume this is really getting to the end. One way or the other, we're going to know what the prosecutor wants to do.

Yeah. I mean, I always view that as you've got nothing to lose and only something to gain by hearing from the defense. I mean, it's a little bit of a window into what they're thinking. It may help you prepare as a prosecutor for motions that are to come. And sometimes it also may give you something to think,

carefully about in terms of one or more of the charges, maybe something you didn't discover during your grand jury investigation. And it does usually come toward the end. I mean, occasionally in a rare case, maybe you do it a little bit earlier. Oftentimes defense counsel will be trying to get in much, much earlier, right? Because they want to try to influence the whole course of your investigation. And definitely I was in a position in the past of saying, we'll talk to you, but just like

let's wait a little while till we talk to you. And clearly that's what happened in Manhattan. I do think we'll see that in these other cases, particularly the ones that the Department of Justice is...

Although it is an interesting thing to think about, Andrew, because the behavior of the attorneys in the Mar-a-Lago case has been pretty disappointing. The defense attorneys, I would say. I love your euphemism. I would agree with you. It's been disappointing.

Yeah. And so I do still think they'll offer them that opportunity, but I'd be really dubious in taking anything that the defense counsel are saying in that such a meeting, really taking it for its truth. Not that I think they would outright lie, but I think that Trump himself as a client is a very difficult

client and I think sometimes plays his attorneys. And, you know, it's just a different case. I don't think that means they won't do it, but I'm not sure it will have as much value as it might in your more ordinary white collar case, where, frankly, the defense bar and the prosecutors are usually people who know each other quite well. They often have mutual admiration and respect for each other. And so when you bring one of those attorneys in to talk to the prosecutor, you really can have a serious conversation.

Yeah, no, I mean, it's really interesting. The best defense presentation I saw was a lawyer, Wilmer Cutler, who basically just didn't waste our time and said, you know what, I've got three issues. And we've given him a half an hour. He took 15 minutes. He presented those issues. They were serious, important issues. He didn't lose credibility. And, you know, we really thought about it.

because it was just a very adult conversation. I agree with you that may not happen here, but you still hear somebody out because it's important for them to have that process where they've actually presented their arguments. And, you know, if it turns out they're not good arguments, that's not the prosecutor's fault. I think that that's the kind of thing that I think people, it's probably worth being on the lookout for that conversation.

kind of meeting happening in the Mar-a-Lago case as a real sign of things to come.

Well, Mary, there's going to be no end of things to talk about, but this does it for a very special edition of Prosecuting Donald Trump, the first indictment. And we'll be back next week. I'm Andrew Weissman with my friend Mary McCord. The senior producer for this show is Alicia Conley. The show is produced by Bryson Barnes, Aisha Turner, and Jan Maris Perez. Rebecca Cutler is the executive in charge of MSNBC Audio.

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