Deep Dive
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Hello and welcome to a new episode of Prosecuting Donald Trump. While the former president and his allies are going on offense and escalating their attacks on Alvin Bragg, Fannie Willis, and of course, Jack Smith, we'll get into whether any other defendant would get away with this and how the prosecutors and New York City judge should respond. I'm Andrew Weissman, and I'm here live with Mary McCord.
And we're actually here in the same room together for the first time in our podcast series. Glad to be here, Andrew, in New York City. Well, that is actually a really good segue to the first of our topics because you are here in New York City, coming from your hometown of Washington, D.C., my former hometown. And you're here because you're going to teach us
with me and Ryan Goodman at NYU. And I have a quick story to tell folks about Mary and teaching at NYU because last year when she came and guest taught our law and security class, the following week, one of the students said, Mary McCord was so fantastic. I now know what I want to do with the rest of my life. And I was like, well, what is that? And she said, I want to be Mary McCord.
Well, that is the greatest compliment. She only saw me for like two hours. So I think if she saw me more, she would have a different view. I don't think so. I mean, it is really just a sight to behold. And so it's great that you're here. But Mary, you're not the only person who has come up from Washington, D.C. to New York today. I need to say that there are other people and they can't hold a candle to you, nor would they be guests at our national security class.
But Jim Jordan is holding a hearing today in my native New York. I have a lot to say that's not political about that since he's going to be talking about the crime rate in New York, which if this wasn't politicized, I would tell you, I'm sorry, we're the safest large city in America today.
How are you planning on making a political story of that unless you're going to be conducting sort of more fake news? But, you know, that is what we're dealing with today at the same time that it's my pleasure to have you in our city. So I wanted to just to turn to something serious, which is, I mean, it's hard to sort of even phrase this, but like, how does the court deal with this and, you
What would happen in a normal situation with a prosecutor or a judge dealing with this sort of extrajudicial hearing and concomitant with what Jordan is doing is this barrage of negative comments.
stories that are coming and attacks that are coming from defendant Donald Trump, not candidate Donald Trump, about the DA here. And then I think anticipatorily against
Jack Smith and Fannie Willis, because I think he thinks he knows what's coming down the pike. And even if it doesn't come, it's better to get ahead of it. And so how do you deal with that? Yeah. Well, you know, famously, and most listeners probably saw the post of, you know, Donald Trump with a bat in his hand on one half of the post and the other half was Alvin Bragg. But Mary, Mary, that was just Donald Trump.
I think he said he was just promoting bats made in America. Right. Of course. And so that was just a way of promoting, you know, good business in America. It seems so. I'm surprised you see any correlation between the left side of the picture and the right side. And he must have just thought Alvin Bragg also appreciates bats made in America. So therefore he would put him on the post. This this weekend's post had photos of all four of the prosecutors who he is promoting.
thinking are against him. Alvin Bragg, Fannie Willis, Letitia James, and Jack Smith. And of course, Letitia James, her lawsuit is a civil lawsuit, but still...
and calling them thugs, radical left Marxists, racists, and lunatics. But other than that, great people. Right, right. So you're right. It is just kind of constant, and it's all happening while there are other things going on besides just the Bragg prosecution, such as this judiciary community hearing, which is hard to
view in any other light other than having at least some side of political valence on it. And we could get into, if there were time and this was a different subject matter, how crime is actually violent. Crime and gun violence are much greater on a per capita basis in places where many of the
legislators on the committee come from um ohio alabama kentucky etc i mean this just just to like you're you're bringing out my you know my very well hidden inveterate new yorker which is it's it's so upsetting to me as an inveterate new yorker that it's so easy to just sort of tar um
New York as just being this sort of, you know, Sodom and Gomorrah and that, you know, anything goes here, including crime. And this is not true. It is true that we are very tolerant of a huge diversity of people. But the idea that we're tolerant of crime is not true even when
when you're talking about so-called progressive prosecutors. I mean, it's just a wrong take to think that progressive prosecutors are naive. I mean, for anyone like Alvin Bragg, he, of all people, is very aware of...
street crime and also who the victims of street crime is. Anyway, sorry to be on my soapboxes. You can tell you've touched a nerve. I hear you. And, you know, we're coming off a weekend with two mass shootings again in America. So, but...
But to the topic at hand, so all of these things are happening at once, but there is really no such thing. You can say what would happen in some other case, but there's no other case that is actually like a case that's
against the president, a criminal case brought against a former president of the United States of America, while there are other investigations into the former president, both civil and criminal. So we don't have precedent for this, but the basic constitutional and legal principles are no different for analyzing
how a court would look at some of the former president's statements and attacks against prosecutors, judges, et cetera, and how a judge would look at it in another case. In other words, Donald Trump has a First Amendment right.
Defendants in all criminal cases have a First Amendment right. So anytime we're talking about statements either made by the defense or made by prosecutors, oftentimes defendants will go into court and say, Your Honor, will you ask the prosecutors not to talk about a case to the media because I won't be able as a defendant to get a fair trial?
Here, there's something of the reverse happening. We have not seen the prosecutors seek any kind of order yet against the former president. But I could imagine if these types of threats continue, particularly because the judge flagged it himself during the arraignment, I could imagine at some point the government saying, Your Honor, would you restrict
What former President Trump and those around him can say specifically attacking you, your honor, the prosecutors, potential witnesses, because this threatens their safety. And then the court would look at this as a First Amendment issue, scrutinizing the former president's right to speech.
against the right to an impartial jury, a fair trial, and a government has, I mean, the government's not the defendant here, but there is a judicial system and there's a rule, a federal rule of criminal procedure, 57, that actually speaks to the need to have a fair trial that is not tainted. The jury pool is not tainted. The witnesses aren't tainted. The judge and the prosecutors and defendants aren't tainted by statements outside of court. And so that's how this will be looked at if we get to that moment in time.
But there's not really anything comparable, do you think, Andrew? There isn't. I mean, it's such a... To me, this is an example of
People who want to say, oh, well, the former president will be treated like anyone else and any other defendant. And that's true to a large extent. And it's also not true. And as we've talked about in other episodes, this is, I think, another example where people
we're not talking about apples and apples. We're talking about apples and oranges, or as Jen Psaki sometimes has said, apples and orangutans. Right. In other words, it's so dissimilar because precisely because of what you're saying, Mary, which is, you know, anybody else...
everyone would ignore. I mean, so here you're dealing with somebody with this huge bully pulpit and a huge following so that when he speaks, there's a concern about the jury pool that you mentioned, there's a concern about safety, and it's whether he speaks or his allies and followers and the sort of lone wolves who are inspired by him in terms of violence. So,
the judge and the prosecutors have to think about this differently than they would anyone else because they're dealing with different facts and so i think you're sort of kidding yourself if you're a prosecutor thinking
I'm not going to react in any different way. I think it's important to make sure you're measured and proportionate and everything you're talking about. But it's another example of this is a different situation. And, you know, and it's a difficult one, precisely because of the issues you're raising. Because even if you could figure out a way to muzzle the former president, huge if,
you know, that's not going to necessarily apply to his allies. That's right. And what he's saying behind the scenes for them. I mean, this is exactly what happened with Paul Manafort in a very minor scale where people were speaking for him. And then we later could show, which we didn't know at the time, that there were text messages between him and Sean Hannity about exactly how to orchestrate the communications in direct violation of what
the judge in that case had ordered. And so, you know, it's actually kind of an interesting analogy on a day where we're one day away from the Dominion case, you know, actually going to trial. Which will reveal emails among media personalities and potentially some with the Trump organization. The other thing I think here to think about is
The prosecutor here, you recall at the arraignment, you know, this was flagged for the court, but the prosecutors are also going to not want to create appellate issues. So I don't think they're going to ask the court for any relief unless things get really serious, because the last thing they want to do is have some sort of appellate issue, significant appellate issue relating to a gag order. Yep. So good to have an appellate lawyer on the podcast. More of prosecuting Donald Trump, the Trump offensive in just a moment.
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The other thing that happened this last week that was fascinating and felt like the old me, you know, the halcyon days of pre-Trump when I could just do my job was reminding me so much of when I was head of the fraud section at the Department of Justice and prosecuted large white collar cases. And I was really happy to see reports of
that Jack Smith and his team were issuing grand jury subpoenas in connection with the so-called fundraising allegations. People will remember, I think not enough credit has been given, if you've been listening to the sort of day-to-day media stories about this, to the fact that this...
was flagged by the January 6th committee. In fact, I think it was one of their first hearings where they talked about the big grift. And Zoe Lofgren, bless her heart, because she thinks she's just fabulous and so even-keeled, talked about these sort of using the big lie as a fundraising tool.
They included a whole appendix on it. Completely. And so what was your take on sort of when you heard this? Did you think good news, bad news, it's going to slow things down? Yeah. Well, the first thing I thought about was, you know, I guess it was our...
whatever, second or third episode when we were actually talking about the Bragg. Well, Mary, we've done so many episodes, it's hard to remember. Gosh, we're on our fifth. Yeah. So when we were talking about the indictment and the statement of facts and the press conference where Alvin Bragg called these false business records the bread and butter of his office. And I remember you and I talked about wire fraud and mail fraud being the bread and butter of the federal white collar prosecutor's toolbox.
And so, you know, I thought this is just so in the wheelhouse of Jags Smith and his team. And I think such a smart move to really home in on this. These are tried and true types of investigations and charges if they get to the point where they think they can build charges.
It's very similar to the Steve Bannon case that involved the We Build the Wall, the organization that fundraised in order to privately pay for the building of a wall at the southern border. And it turned out that there were a lot of false statements in the solicitations of funds for building the wall. There really was no separate We Build the Wall fund where all that money was going.
There were a lot of overstatements and actually outright false statements in those solicitations, and a lot of that money was actually used personally by Bannon and others. And there was an indictment brought for wire fraud for false statements in fundraising that deprived people of their money, induced them to contribute money. And three pleaded guilty, and then of course Bannon was pardoned by the former president before he could stand trial. So I've heard. Yes.
So here we're looking, we're talking about...
from the Southern District in different circumstances. But because of that federal pardon, that doesn't apply to the state. So Al-Abrag once again has sort of, you know, stepped into the breach here. No, but you're right. And it is so important because when you had really an interference in bringing Bannon to justice, as occurred with the pardon, it's important that he not just be able to escape any kind of accountability for that
But here, what we're talking about is we're looking at the fundraising that was based on the big lie, based on fraudulent statements about a rigged election, about significant fraud in the election, and to determine whether false statements were made in those communications. Remember, wire fraud. I think some people think, what is wire fraud? Wire fraud just means you're using interstate communications, interstate wires. So email? Email, right.
That's right. Phones. Phones, cell phone, text messages, signal, WhatsApp, whatever, what have you. It's not just all traditional telephones like it used to be when the wire fraud statute was first enacted. Now there's so many. When I teach my class in Fourth Amendment, I have to keep on telling the students when I say telephone, I'm like, do I need to explain what that is? Right.
They used to be literally connected by wires at any rate. So there's many ways for that to be accomplished now. And so the question will be, you know, were there fraud in those fundraising emails and other communications over the wire that induced people to contribute money? And I just want to lay out three possibilities for the fraud here before getting your take on it. I think a lot of people are thinking, OK, well, it
the fraud would all have to be just based on did the people creating those emails up to potentially including former President Trump know that there really was no evidence of significant fraud that would have changed the outcome and they said there was anyway. That's one type of a false statement. I do think
a prosecutor looking at that will want to give some real leeway for fundraising in a campaign because a lot of campaigns sort of stretch the bounds of straight truth exaggerate shall we say in their fundraising emails and they'll want to give some leeway there so i think they want to be pretty particular about whether statements were really false but there are two other things
things that also this could be based on. There were solicitations for money into an election defense fund. And my understanding is no such fund exists. And did they know at the time they were creating these fundraising that no such fund exists? That's a very concrete fact that if
The evidence shows they knew there was no such fund and said there was. That's an easier case. There's also the promises that the money was going to actually be used to bring challenges to the prior election, recounts and other types of legal challenges. Yet it was not used for that. It was all just went right into campaign funds. And did those soliciting it know there really was no intent or at least no significant intent to use those funds?
funds for that. So those are other ways you could show that false statement. Yeah. And so much of that is going to turn on what exactly was the wording that was used for the solicitation. That specific wording is critical to knowing whether there was fraud. And remember, you have to prove the case beyond a reasonable doubt. It also means that you need to tie it to a specific person.
person or people. Now, there could be one or many people who have liability here. And it is important to remember that with respect to the former president, you need to be able to show, did he know exactly what was being said? Now, here there's written communications, but you need to be able to show that he knew that
And whatever they are, whether it's any of the theories that you have, and by the way, it could be all of those. So it's not just a decision to choose one. There could be charges to any of them, but you have to be able to pin it to that person's state of mind. What did they know at the time? There's no group liability, no group think liability here. It's individual. And it's not enough to just say, well,
That statement was false. It's, okay, that's good. You know, you need that. But that's not enough. You need to be able to show that the particular person who was making the solicitation or approving the solicitation, it's not enough. You don't have to show that Donald Trump hit send on the
that that person knew that it was false at the time. The example, though, of how the money was going to be used is a really good example because it relates totally to what Steve Bannon was charged with because this wasn't what we think we're going to use the money for or what we expect to use the money for, but the key language that was used to charge him first at the federal level, now at the state level, was that there was a promise
Yes.
Who are the victims? The victims of this are actually the MAGA Republicans who are being asked to solicit money. And to me, it sort of plays into a theme that Liz Cheney was making in the January 6th committee, which was to not vilify the people who are supporting Trump, but to try and show them what's
what's going on and how they're being played. And so that kind of charge would, I think, help with sort of public legitimacy and acceptance. You're never going to get 100%, obviously, or anything close to that, given where we are in this country. But I do think that if those charges can be made, it does serve that function. But I thought an interesting aspect of this potential line of inquiry by Jack Smith is the idea that
This could develop cooperators. Well, that's just it. I mean, I don't know how likely it is that the former president himself saw these different fundraising ads. You know, there are some things he gets himself very involved in and some things he doesn't. And I don't know the answer to that. And that's what this investigation will find out. But it could, you know, wrap in people pretty darn close to him, people who might have other information relevant to the other aspects of Jack Smith's
inquiry. And, you know, just also on the charges, we've been talking about individual culpability, which is absolutely true, but they also could potentially show a conspiracy that a number of individuals, because that's, I think, was also a basis for the We Build the Wall, right? A number of individuals together all knew that that's what they were doing. They were going to be fundraising on the big lie and use it really for campaigning. And so if that comes out
another way to get to that accountability that you were just talking about and really showing the people who were duped by this, the people who put their heart earned, you know, whether they gave, you know, five bucks a week or, you know, $5,000 or whatever it was, they got duped. But assuming that there'll be a number of people who's, I mean, we know from the subpoenas, a lot of communications have been subpoenaed here may reveal a number of individuals who were working on this, on this fundraising campaign,
process, some of whom, again, might be people who have close contact with the former president and may be able to offer Jack Smith other information, which is how you may develop cooperators, right? Yes. So there are lots of ways to develop cooperators. But I thought one thing that would be sort of interesting to discuss is one particular way. And that is
the decision that you make as a prosecutor whether to give somebody immunity. So at the federal level, there's a statute. The technical way you go about it is you apply to a judge and you say that we have decided to confer immunity. We'd like an order from the court. And the court, pursuant to this federal statute, gives immunity.
an order that gives use and derivative use immunity, meaning that the particular person, you cannot use what they say or any derivative things from what they say against that person in a criminal case. And you get that order. And what that does is it means that the person who you give immunity to
cannot assert the Fifth Amendment. They no longer have a Fifth Amendment privilege because the immunity is completely covered by the Fifth Amendment. The Fifth Amendment would prevent the government from using statements against you, and that's essentially what the immunity order... Your own statements against you. Sorry, yes, exactly. That's good. Very good clarification.
So an immunity order is something that, by the way, the court just gives it. It's not like this is an application where you have to make a big showing. It's like you make an application, the judge does it, you give it to the person who you want to immunize, and then they have to go in the grand jury. It's not during an interview. They go in the grand jury, you give them the order, and they can do one of three things. So...
They can go in the grand jury and they can testify truthfully. So, of course, if you're the prosecutor, that's what you want. That's what you want. So there are two other choices. They can go in the grand jury and they can lie. Now, you might think, why would you do that? Because you've just been given an immunity, so, like, is it in your interest to just go and tell the truth? Well, let's say you were given immunity and you were in an organized crime family. You might decide, one, I'm
My loyalty is to the organized crime family. Two, I don't really want to get killed. So if I tell the truth and it becomes known that I tell the truth, I, my family, are in danger. Right.
But usually it's out of loyalty. They're like, you can immunize me, but I don't particularly want to reveal the secrets of the Genovese family. And I don't want to help the government. Exactly. And so that also leads to a third possibility. By the way, going in and lying, that is a federal crime. Yes. So the third possibility is also a federal crime. And that is you basically say, oh, I see that you gave me an immunity order and I see that I'm directed to testify. But you know what?
I don't really feel like doing that. But then you are in something called contempt. And it's a lot of intricacies. I've actually done this procedure a lot where you're essentially in civil and criminal contempt. And you essentially go to jail immediately for saying no. Why? Because the court has ordered you to testify in absence of some other privilege, like attorney-client privilege or executive privilege, a valid privilege. You have to. So if you say no...
you then go to jail. And there are all sorts of rules about when you have civil, when you have criminal contempt. But essentially, those two options of going in and testifying falsely or refusing to testify are crimes.
saying no is something where you immediately go to jail. If you testify falsely, the government does have to prove it. So that is a risk. If you are now on the government side and you're thinking, should I immunize somebody? There are all sorts of factors you weigh in. So first, you don't want to immunize somebody who's killed somebody. In other words, you don't want to be a pig in a poke. You want to make sure you have some sense of who it is. And so usually, in my experience, I've
immunized low-level people, usually at the outset of an investigation, to get a toehold. So in Enron, we had this really lovely kid who was about to go to business school, and he was an intern, and he worked for Andy Fastow. And he was going to be immunized. He did have culpability, but so low-level. We were just starting out. And he, frankly, had the keys to the kingdom. He had so much information. And so that felt
like of course he got something frankly that he didn't deserve um because all things being equal because he had liability he he could
could have been charged, but at the time we had no case. So you're trying to decide when you have no case, how do you go forward? So you weren't immunizing somebody with a lot of liability. And probably somebody who kind of through various other factors, kind of the push-pull got involved in it. He didn't have the intent to start out to be part of that. He was his first job out of college. So again, not that it means it's right, but in terms of the, you're making, these are the
People think prosecutors have, it's all sort of like guilt or innocence. A lot of judgment, discretion. Exactly. So this is sort of a classic example. But with somebody like, let's say, Mark Meadows, there's no way he's going into the grand jury and not asserting the Fifth Amendment at this point. I mean, he just has too much potential liability in my view.
Do you agree, Mary? I think that's right. You know, just based on what we know about so far, a lot of it from the House Select Committee's report, frankly, you know, there's a lot of, you know, the ultimate proof beyond a reasonable doubt of any crime. I don't yet know, but he's very close to a lot of things that look really dangerous. Exactly. That's sort of my take, too, which is like he, I don't know that there's proof beyond a reasonable doubt to charge him, but that's not the standard for asserting the Fifth Amendment, which is just essentially a good faith belief that
truthful answer that you give could tend to incriminate you. And just based on Cassidy Hutchinson, he would have that basis. So then you think, well, what are the government's options? And the government, obviously, they could try to build a criminal case against him because that's another way to flip somebody, which is the old tried and true, roll up your sleeves, do the hard work, prosecute the person, and have a conversation with their defense lawyer to say, you
You know, Mark Meadows, defense counsel, who's very eminent DC lawyer. It's like, okay, which side do you want to be on? Or as we used to say, Mary, and I think maybe you said the same thing, which side of the V do you want to be on in the United States versus do you want to be on the United States side or do you want to be on the United States versus...
Meadows side. So which side of the V do you want to be on? And, you know, a good defense lawyer has a conversation with you as a prosecutor saying, look, will you tell me about the proof? Can you tell me sort of like what it might face? And frankly, a good prosecutor, we've talked about this a couple episodes ago, but, you know, I'm usually very open with like,
You want to see the proof? Come on in. We did that with Rick Gates to flip him. We were like, here are the binders. And we actually had an agent there to answer any and all questions. We'll refer to it as a proffer. We will proffer to you the facts that we are prepared to prove at trial against your client. Absolutely. So, you know, the issue there is like you're not dealing with a low-level person in Enron at the start of an investigation. And so...
So Mark Meadows might be a great person to immunize otherwise, meaning that he might have the keys to the kingdom. But are you really going to bite the bullet on immunizing somebody with that level of culpability? And then there's the other issue, which is you don't want to immunize somebody when you don't know what they're going to say. Now, it is true. A really important thing about immunity is in spite of everything that I have just said,
You can get immunity, but you still can't lie. Yeah. So if you are immunized... You're not immunized from lying. Right. And the way I think of that is you get this order from the court that says you have to testify and your statements cannot be used against you and derivative use cannot be used against you to prove...
past crimes. But it doesn't mean you can go out and murder somebody or commit a bank robbery. And by the same token, that means you cannot go into the grand jury and commit a crime and think that you're immunized. The new crime is going into the grand jury and lying. So Mark Meadows, if he got this, cannot go in there and lie. He could still be prosecuted for that.
And the issue is, what do you as a government lawyer have to hold the person? What do you have to make sure that if they start spinning out a BS story, that you can confront them to try and hold them? And that's where the defense lawyer and the prosecutor may have a similar interest because a defense lawyer is operating in good faith
also doesn't want their client to get prosecuted for perjury. And so there can be a discussion where the defense lawyer wants that information. A defense lawyer wants to know, if my client goes in and says that the following happened, is he going to be in trouble? Is there going to be a problem? And there can be a back and forth discussion between the prosecutor and the defense, usually when you're dealing with people who have good relations and know that they're operating in good faith
and you basically can say, you know, where you think there might be a problem or where you think they might want to push the person. There, you tend not to give too much information to the defense because you want to make sure you're holding something so that they're not just tailoring what they say to what they, the known evidence. You want to have something so that they are worried about
about lying. So it's a complicated situation. All of that, by the way, is to say that with Mark Meadows, the biggest factor I think that will lead somebody like Jack Smith to not doing immunity is one, he may not need it with respect to Donald Trump, meaning that this case might be very strong. And two,
I just think this sort of moral factor, which is I would find this is I'm just putting my prosecutor's hat back on. As I think I've said, many people think it's never been taken off. But putting it back on, I would have a very hard time.
conferring immunity on somebody who was the chief of staff during such an important period and may have such potential criminal liability that I would be raising heaven and earth to make the case the old-fashioned way against him. Against him. Now, there is another option here we haven't talked about yet besides wholesale immunity, which is, you know...
The government can say, we've got this case against Mark Meadows for XYZ crimes. But we also are interested in his cooperation against the former president and offer him to plead guilty to some offense, maybe a lesser included offense of whatever the government is otherwise prepared to charge him with, so that you do have some level of accountability against
while also obtaining testimony. And, you know, that happens not only in violent crimes where it's really, you know, fairly common because it's really hard to give immunity to somebody if you think they've committed a violent crime. You must, as a prosecutor, I never did that. They had to plead guilty to something. But you also, that happens in white collar crimes too. For example,
a lot of the reasons you're indicating, Andrew, which is that at some point someone's culpability, and again, we're speculating here. We don't know exactly what evidence there is that would prove up any particular crime with respect to Mark Meadows. But at some point, if somebody is sort of high enough in the food chain, close enough to the core
target and their culpability is so great, it's pretty hard to stomach a free ride. And now whether he would accept anything that involved any admission of criminal liability, I don't know. It just depends on what the government has against him or is able to amass. More of Prosecuting Donald Trump, the Trump Offensive, in just a moment.
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I wanted to turn to something which, Mary, I was all week long, I've been meaning to talk to you about because I knew it was like completely in your wheelhouse, which was the reports that Jack Smith was questioning people about a classified map and asking people questions.
about whether Donald Trump was showing it to people who did not have clearance to see it. And there have been similar reports. Essentially, what I viewed as sort of dissemination reports because I've always been thinking of the Mar-a-Lago case as a... A retention case. A retention case, exactly. Not that that's a crime if it can be proved. It's not required to show dissemination. But I heard that, and especially since...
We heard about Jack Teixeira in very different circumstances. But I really want to know your take on this because, you know, you are steeped in national security law and also sort of the, not just the law, but the sort of discretionary issues that are raised when individuals
you hear reports of what the former president may have been doing. Right. I think this is important to Jack Smith for a few reasons. One is, what is the timing of this? I mean, if he was showing it to other people, was he showing it to them after he'd been subpoenaed to turn over all classified information? Was he showing it to them before the subpoena, but after the National Archives had asked for all of the classified information to be returned?
So what point in time could actually be evidence in a potential obstruction of case? And we've talked about obstruction of justice being pretty important to this investigation for many reasons. But it's also, I think, and the timing here also would be important,
I think, helps prove his knowledge that he, in fact, you know, had classified information, because if he's showing it to them and it has markings on it, he knows what those markings are. And, you know, classified information has very clearly and prominently labeled whatever level it is, secret, top secret, special access programs. They're right there on the documents themselves. So any type of defense, now, granted, he has been a moving target with
defenses, right? Like, I didn't know... Defense du jour. Yeah, yeah. I can declassify everything to, I didn't know anything about it, to, you know, yes, of course, I have them, but I was permitted to have them, on and on and on. But it would at least, I think, help prove up his knowledge that what he had was classified. And then, of course, the
the point you just made, it shows something more than just retention. It shows transmission or dissemination, communicating the context to people not authorized to receive them, which is, of course, a national security threat. It is another way of proving an Espionage Act offense. And I say Espionage Act not because right now we have evidence that he was showing these to necessarily our adversaries, but that
the act that created the offense we're talking about is generally called the Espionage Act, and it applies to multiple different things beyond just retention. But I think it's also just interesting as a sort of indication potentially of his motivation here. I mean, we've had lots of stories over the years, including from his own staff, about how he thought
of classified information as his own and how he liked to sort of prove up his access to this type of stuff by sharing it with other people. And there's other examples of him sharing things. By the way, that's, by all accounts, Jack Teixeira. It's exactly where I was going to go. Yeah. It seems like this young kid, and I'm going to call him a kid, yes, he's legally an adult, but was just
wanting to show off in front of friends who, in fact, were kids, many of them, yet he's sharing military secrets and other highly classified information by at least what we know right now, not with an intent that they get to, you know, Russia's attention or any of our adversaries. Or Twitter. Or to Twitter, but just to show off, just say, hey, look what I have access to, and try to pretend like he's an expert in, you know, geopolitical and military affairs. And
You know, in some ways, some of the things we've heard about Trump feel a little bit like that. Now, that doesn't mean it's not significant or important. It shows the very, very casual, casual attitude to our nation's most top secrets, our most carefully guarded information. So, Mary, you used to run the National Security Division, and the group that did this work was housed within the National Security Division.
To what extent would a dissemination case versus a retention case
How much would that factor sort of weigh on the issue of the should question? Not can you prosecute somebody, but should you prosecute? How much is that sort of something that you think about in terms of your career? So in a case not involving the former president, you know, that's a big deal because people make mistakes. Of course, you'd always have to have intent even for retention, intent to retain once you've been asked to return it. But retention, particularly if it's a small amount of a number of documents,
you would have a lot of factors you had to weigh into whether to bring that case. And it would also depend on, you know, whether the person was cooperative once the government asked for the documents back. It would depend on whether there was actually any harm because maybe anyone else had gotten access. And if there wasn't and it was pure retention, you might weigh whether you actually bring a case or you would bring a case of a misdemeanor.
because there's an option with a pure retention case to bring a misdemeanor case and not a felony. Dissemination is a whole different thing because that shows the person was sharing with others. And once you share, no matter what, for example, Jack, to share a thought about, oh, I'm just sharing with this little gaming group on Discord and I've told them all, don't you dare share it. Well,
It's like sharing a secret. You say it's just between you and me. I mean, how many times has someone done that? And it's like, you know, everyone then knows. And, you know, those people didn't sign a nondisclosure agreement. Jack Teixeira signed a nondisclosure agreement. And so the likelihood of it being transmitted beyond that group was high. And in fact, it's not.
came to fruition. It was transmitted beyond that group. And so dissemination definitely ups the ante significantly, again, in an ordinary case. In a case involving President Trump, there were so many red flags even just about the retention, but most of those red flags, again, had to do with his failure to return the information once it was flagged. I have said since this case first broke that if he
He had promptly responded to the National Archivist and the Department of Justice when they asked for the return of documents. If he had returned everything, invited the Justice Department in to do a search, just as both President Biden and Vice President Pence have done, I do not think we'd be looking at potential criminal charges. And that is not at all what he did.
It is so great to see you in the flesh. And I look forward to spending the next couple of hours with you at NYU. And then we'll all be back next week to talk to you more about prosecuting Donald Trump. Looking forward to it.
Thanks for listening. The senior producer for this 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. Search for Prosecuting Donald Trump wherever you get your podcasts and please 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.