Prosecuting Donald Trump: The Manhattan Arraignment
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Now back to the podcast. AT&T, connecting changes everything. Hi, everyone. This is Nicole Wallace. This week, former President Donald Trump became the first ex-president ever to be arraigned on criminal charges, pleading not guilty to 34 felony counts. And

MSNBC legal analysts Andrew Weissman and Mary McCord, with their combined five decades of prosecuting experience, are back with their insights. Andrew and Mary will help us understand how prosecutors like Alvin Bragg, Fannie Willis, and Jack Smith might think about building a case when the defendant also happens to be an ex-president. Please join me in listening to Prosecuting Donald Trump, the Manhattan Arraignment.

And if you like what you hear, subscribe to their feed for future episodes. Hello and welcome to our third episode of Prosecuting Donald Trump. Well, it was an extraordinary Tuesday. The former president of the United States of America, under arrest in a Manhattan courthouse charged with 34 felony counts. He has now defended Donald Trump.

There is so much to examine. I'm here with the perfect person to do that. This is Andrew Weissman, and I'm with Mary McCord. Good morning, Andrew. Really was quite the day. We've both been through not totally similar things because neither one of us has ever indicted a former president, but we've both built cases, brought charges, planned press conferences, done arraignments,

So I think that's our topic for this morning. Let's get into it. What struck us about the decisions that the district attorney made in this case and the things we saw yesterday? I know you were pretty much nonstop, at least 12, but it probably felt like 24 hours commenting on this.

And I myself, trying to take a mini vacation, was pulled back also to comment on this. But it's just so important. And so that's why we did that. Yeah, one of us was at work and one of us was gallivanting on vacation and got pulled back. Trying to.

Yeah, trying to gallivant. I can tell you, I was so tired and thus so caffeinated that I came off of one of the shows and somebody said, Boyd, do you need some caffeine? And one of the producers goes, Do not give him any more caffeine.

Good call. Yes, exactly. I was thinking, okay, I obviously have to bring it down. Just too hyper. Well, let's get into it, as you said, Mary, because there is so much to cover. We're going to try and

Really take you behind the scenes, because Mary and I have been, even in the short time we've had to look at this, really going over what it is that the DA's office was strategizing about. And we looked at this with an eye towards what kind of decisions were they making? There's sort of four decisions.

key things that happened yesterday that are new. There's obviously the indictment. Separately, they issued a statement of facts that laid out some sort of put meat on the bones of the bare bones indictment.

There was the actual arraignment hearing, which both of us sort of poured over for clues and insider tips and how they handled certain things. And then there was something that happens fairly frequently, but only in sort of major cases, which was a press briefing by the district attorney himself. So those are the four things that we're going to sort of discuss and strategize over. But why don't we start with...

big picture view. And it's obviously, it's a little hard to tell because we don't know all of the evidence that will happen at trial. But Mary, what was your takeaway in terms of what you were expecting and what you saw yesterday in terms of just, you know, did you think, okay, knowing that you've charged a lot of cases and seen a lot of cases and supervised so many people, did you read this and say, okay, this is really strong, it's a rock crusher? Or did you think this is triable or somewhere in between?

Well, what struck me the most, Andrew, is that right out of the gate in the statement of facts, frankly, because it's much more interesting than the indictment, we can get to the indictment. It really actually is pretty bare bones. But the statement of facts and also upon reading the transcript of the arraignment, I see that

The statement of the facts comes right out of the gate, framing this case really as part, I think, of the whole Donald Trump assault on democracy. Paragraphs one and two, this was a scheme with others to influence the 2016 presidential election.

The transcript of the arraignment, the assistant district attorney, Chris Conroy, same thing. He came right out of the gate telling the story of these charges and characterizing it as an illegal conspiracy to undermine the integrity of the 2016 presidential election. First of all, it's unusual in my experience at an arraignment to even

sort of talk about the facts of the case or the framing of the case up front. But I think this was so important in part because it is a false business records case. And we can talk about the significance of these. These are felony charges. They're commonly used in white collar work, as the district attorney Alvin Bragg explained during the press conference. But I think it is significant for people to understand this case

in the big scheme, in the overall picture of Donald Trump. 2016 tried to influence the election. 2020 tried to influence the election. Post-2020 is still trying to overturn the election, and he'll be doing this going into 2024. He's done it multiple different ways.

But there is a through line here, and we see it in this indictment. It started with these hush money payments that were done specifically to influence the outcome of the election and at a critical time in the election, too. But I don't know, Andrew, whether you had that same opinion. Absolutely. That was my first thought, which is they really were thinking about sort of two audiences –

One was at an ultimate trial, how do you get a jury to care about

Is this just as people were saying, oh, it's just hush money payments. It doesn't add anything in terms of what we know about Donald Trump. We already knew that he had that kind of history. No one was voting for him because he's a paragon of virtue. After all, there was the Access Hollywood tape and he still got elected. And what this was saying is this is actually an election fraud case. And that scheme is

happened to trip over these crimes, which is filing false business records. But it was really sort of why you should care. And I think the second audience was the public, trying to educate the public as to why the former president of the United States for the first time in history is being charged. And that's where, you know, we've talked in prior episodes about this issue of how does

doing this case and something on such a national and international stage affect choices that are being made by the prosecutor. And to me, there was no question that at that arraignment to have that sort of opening statement of,

I had the exact same view, which was that was done to make sure that the public, whether you disagreed or agreed with what they were doing, that it was their argument as to why this is important was laid out. And that's a real indication of what you do differently when you really need to have

public support for the criminal justice system so they understand what you're doing. So I had exactly the same view. And I thought it was very well done in terms of really sort of stepping back and not being too legalistic in the sense that, yes, of course, they have to charge and prove crimes. They have to prove it beyond reasonable doubt to a unanimous jury. But

But trying to frame what was this really about? Why is it that someone cares? So I had exactly the same reaction. So, and that, by the way, as you said, that is paragraph one and two of the statement of facts. It's right there. And the sort of lead prosecutor, at least for yesterday's arraignment, right.

Right out of the gate, first thing he said is, I want to say something. And I think it caught the defense a little bit off guard. They actually made a comment saying, you know, we didn't expect that there would be sort of mini opening statements. And they tried to then say something, but they clearly had not prepared. They didn't have anything as dramatic to say, that's for sure.

So I thought the other thing that might be worth talking about is the so-called Melania defense and what you saw in the statement of facts that sort of addressed that, because I actually found that interesting.

somewhat unusual that they were really going straight at why this case is not the Edwards case, where John Edwards very famously said, "This isn't a campaign finance issue. I was just trying to do this so that my wife wouldn't know that I was having this long-term affair and had a child out of wedlock." And I thought it was very unusual that this really took pains to say, "Don't go down that road."

Yeah. So, you know, that just comes to the detail in the statement of facts, I think is really interesting because it does refute that defense, which we can get into. But it also shows that this isn't case sort of based just on Stormy Daniels or just on –

the testimony, expected testimony of Michael Cohen, you know, who himself is a convicted felon. And that means he brings some baggage with him into court and he'll be cross-examined based on those things. And we can talk about whether that will be a successful cross-examination or not. But this statement of facts is,

talks about a much bigger scheme, right? It involves the payments also to Karen McDougal. It involves the pressure campaign against Michael Cohen once he was being charged. All of this to, I think, paint this bigger picture of what the case is about. And to your point specifically, and I found this really remarkable as well as one of the first things that stood out to me was the

The statement of facts explains in great detail how the former president wanted Michael Cohen to delay the payments to Stormy Daniels, the agreed payment of $130,000 to basically buy her story and keep her from telling it to the public, the story that he thought would damage him because of the affair he had with her while she was pregnant.

He wanted to delay that payment as long as he could because he thought, hey, if we can delay it till after the election,

Maybe we don't have to pay it at all. And if he was really concerned about his wife not finding out or not being embarrassed or humiliated about his extramarital affair with a porn star, then why would he be delaying that payment? In fact, he would have paid it immediately to make sure that that didn't happen. It also honestly just shows he's a cheapskate. Oh, my God.

gosh, $130,000. This man who wants us all to believe that he's made of money doesn't even, you know, it's wrong to pay this hush money. It's illegal, as we now know. But goodness gracious, that's how cheap he was. So I think it hit on a couple different levels for me. I know. I felt like he was like hoisted by your own petard. It's like,

hey, you don't want to have this problem? Like, fork over the money. I mean, it's just so incredible that he's in the middle of this hush money scheme. He's thinking, okay, you know what? Maybe we don't have to pay it. And if he had done it

before, he wouldn't have this really devastating evidence, which makes it absolutely clear it had nothing to do with his wife. And that's one of two places in the statement of facts where the district attorney goes out of his way to

to point out that this couldn't possibly, if you believe the allegations, have anything to do with Melania. So again, very much thinking at this stage, I want to put this in here because there's going to be this rampant speculation by all sorts of people that why isn't this just like the John Edwards case? And again, this is an example of...

You might not do this in the routine case and lay out all of this evidence, but this was, I think, an effort to really spell out to the public

don't think for a second that this is a defense and this is what was going on. There's a reason we are charging this and saying this had to do with the campaign and campaign fraud. And there's a reason that that's the way we framed this entire case. So I thought it was critical to do it. But again, it served this public education function and they weren't sort of keeping their sort of cards close to the vest. And Andrew, I don't know if it struck you as well, because you and I both, of course, were federal prosecutors and

We didn't file things this way, right? If I were charging this case based on my practice, and I think pretty much all federal practice, you can do a bare bones indictment or you can do what's called a speaking indictment. And in a case like this, we would always, I think, have chose a speaking indictment. And all that means is we're including all those facts in the indictment itself. It's like a preface statement.

to the charges so that as you're reading it, you're seeing all the facts that the charges are built on. So that also struck me that this was odd. And I now know from talking to New York practitioners that this, you know, is not so unusual under New York state practice to have a separate document. But for me, I felt because again, that's where really all the meat is. It's in the statement of facts. The indictment literally just lists one after the other 34 counts.

Yeah, absolutely. That is exactly what we did. And I have to say, in the special counsel investigation, where we were very focused on this sort of public education function and making things digestible to the public, since we knew so many people were going to be reading it, we did do, even though we had it in one document, we did do a very similar thing, which is that we wanted the statement of facts to tell the

the story in a big picture so that you'd be thinking, okay, what is this about? This is about election fraud. And then later it's to say, okay, that scheme, what federal crimes did it trip over? What were the crimes that were committed in the course of that? But not to let the back end of the indictment with the charges

affect how you tell the story. So you really did, in many ways, separate it. It's just interesting that the practice in New York State is you actually separate it physically. You have these two separate documents. But it really is a very similar thing. It's just styled in two different ways. And on that point, before we move on, can I just interject one other thing? Yeah, yeah.

Again, we were talking about how that statement of facts not only frames the issue but tries, I think, to dispense with some of the criticisms that have been out there or some of the concerns about what this case is about. And I think, you know, over the course of the last several weeks, a lot of people have been talking about Michael Cohen, Michael Cohen, Michael Cohen, and he's such an important and critical witness and he's a flawed witness. I actually, when I read this statement of facts, find his role is being minimized into a facilitator role.

of a scheme that was much bigger than Michael Cohen. He was just the guy who had to go, like, pay the money. Because it shows that from early on, really early on, way before 2016, Trump had an agreement with David Pecker, you know, the head of the National Choir and American Media Inc.,

that they were going to be on the lookout. And, you know, this even says this in the statement of facts, catch and kill. They're going to be on the lookout for negative stories. They're going to try to catch them by and kill them by paying people off. And so that's how all of this came to light. And Michael Cohen's role is really just the, you know, the guy doing the legwork for President Trump to pay the money.

Absolutely. And that's another example of the DA thinking about how is this going to be attacked? What is the spin going to be? The defense is going to want to make Michael Cohen because of his obvious baggage, the baggage that keeps growing as he and his lawyer keep talking.

to the media. So I totally agree with you. This was an effort to get ahead of that. And you can pretty much be sure that at trial, the government is going to be saying, you know who the star witness is? The documents. And then they're going to say, you can look at Mr. Pecker, you're going to look at Mr. Cohen, and there may be lots of other witnesses who provide corroborating detail. But I had the exact same thought.

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So I wanted to talk about something that's kind of dear to my heart, which is something that Alvin Bragg did during his press conference. I am very focused on this issue of selective prosecution. And just to be on my soapbox for a second, you know, what separates sort of a show trial and a banana republic from the separate issue of being a country where you hold political leaders to account is

when they've done something wrong, is it's really important that the government be able to show not just that they have the evidence, but that the crime that's being charged is one that is a routine crime that is normally charged, that you are treating likes alike, that you haven't stretched to find some arcane evidence.

that somebody happens to have violated, but you never prosecute anyone for. And that's, you know, that's to separate sort of what I'll call the, you know, Ukraine, since that's something I worked on for two years of my life, where there was a show trial by the president against his adversary, Yulia Tymoshenko, from a nation where you hold anyone to account, whether they were the leader of the free world or whether they were a low-level drug dealer, they're all treated the same.

So one of the things I thought Alvin Bragg did with that preface is talk about how charging these felonies, the filing of false business records, is the bread and butter of the Manhattan District Attorney's Office. And Mary, I'm confident you had the same reaction I did, which is this is like for them, like

Mail fraud and wire fraud for us, you know, those are the routine go-to charges in federal cases. They're just charged in innumerable ways. And there's just so many ways that a defendant can

trip over those particular crimes. And Alan Bragg went out of his way during the press conference to say, this is routine. And it's routine not to charge them just as misdemeanors, but also as felonies. And he alluded to the fact that felonies were charged

In bank secrecy cases, in sex crime cases, in tax cases. And I thought one of the best sort of phrases he used is because of that, looking at what Donald Trump did, he said, we will not normalize criminal conduct.

I just thought that was so well done, really well phrased, and it addressed, I think, a really important issue as we go down this new road in the United States of holding the very highest former political leader to account is making sure that the public understood why this was, at least in the prosecutor's view, treating likes alike. Yeah. Yeah.

Now, and, you know, he made that decision, like you say, deliberately because there has been a lot of talk about, oh, I wouldn't charge this, you know, various pundits and various critics saying this is something that never gets charged and it certainly wouldn't be charged as a felony. And he really did debunk that. And we know from the work we've been doing along with other lawyers in the last couple of weeks that there are actually many, many, many cases where the false

business records with intent to commit another crime is charged and therefore bumped up to a felony. You know, on the selective prosecution point, I think it's so interesting because there's been so many people talking about that, suggesting that this is selective, and it was important for Alvin Bragg to address that. And he did by explaining just what you've explained, Andrew. But, you know, there's another piece to selective prosecution that a lot of people

are ignoring. And it's something I was familiar with in federal law, but I did a little research yesterday to make sure the law is the same in New York law. Thank God, Mary, that we have a appellate lawyer here to keep us all honest. Yeah.

Well, you know, sometimes I like go with like, I have a recollection of this, but I better just double check myself. And I also don't have a recollection of New York state law, because that is not anything I've ever really dealt with. But under New York state law, just like under federal law, selective prosecution doesn't just require trial.

isn't just based on treating like people differently, but you also would have to establish that that difference in treatment was based on, deliberately based on a standard like race, religion, or some arbitrary standard. So it's really got to have that...

And there's certainly no question here that, you know, Donald, at least in my mind, Donald Trump, former president, you know, upper class white man is part of any type of protected class and being singled out for treatment because of that protected class. In spite of what the defendant is accusing the DA of, right?

I guess it's a class of one, you know, former super rich president. Which last time I checked is not a suspect classification. That's not race, religion, national origin, or Donald Trump.

Yeah, that's right. Because, you know, it's based, the whole selective prosecution, the idea of it is based in the Constitution's Equal Protection Clause. It's not just, oh, I don't like the way you charge this person vis-a-vis that person. So I think some of the people who are pointing fingers about selective prosecution are kind of forgetting that piece of it. But the other thing that your discussion here of this felony bump up

uh, makes me want to talk a little bit about is why weren't the felonies specified in the indictment or in the statement of facts? Now, Alvin Brad got into this a little bit in his press conference, but I actually would have expected, um,

the indictment for each count to say what crime they were alleging the president was intending to conceal by falsifying the business records. What are your thoughts on that? Yeah. So let me just, for the two people who are listening to this who are not up to speed on the arcane

Yeah.

to commit any other crime or to cover up any other crime, it becomes a felony. Now, you don't have to charge or you don't have to commit the actual other crime, but you have to have the intent

to do that. And the other crime can be a felony or a misdemeanor. So you could have a situation where you have a misdemeanor filing of a false business record, but it's done to further or cover up another misdemeanor. And the theory there is if that makes it a more serious crime, if you're doing one crime with the intent to commit another crime or to cover up another crime, that is more serious and thus it becomes a felony.

So, sorry, with that background. See, Mary, isn't this good? I've learned law. Yes, yes. It's great. It's great. No, you know a ton of law, Andrew. So I guess that leaves the question of why not just say it? You know, the indictment itself does what it has to do under New York law, which is it absolutely tracks people.

the crime that is charged. You can go to the statute and see that it tracks the language. And there's no question that Mary, you and I, when we were Crim Chiefs in our respective offices, would look at lots of indictments. And you could have a bare-bones indictment that's not a speaking indictment that does exactly what happened here. So there's nothing wrong with it. It does spell it out in terms of this is what the crime is.

But then you have this long statement of facts, and we're all pouring through it yesterday frantically. One person in their pajamas and coffee, you know, on vacation, another person frantically reading while they're on air. That would be me, Mary. And trying to figure out, okay, what is the predicate for bumping this up? And

um you know there's allusions to it but nothing like specific and then sort of finally you get alvin bragg at his press conference where he is directly asked that really good question because now of course all the reporters and people are really attuned to this issue and he puts a little bit more meat on the bones and let me just go through the four things that i heard um

One was a federal campaign finance predicate. One was a state campaign finance predicate. One was a state tax predicate. And the final one was an AMI false filing, false business records. Those were all alluded to. But because it was in a press conference, one thing that didn't happen is

Well, which one is the theory for which count? Or is it all for all counts, which that can't possibly be the case. So, you know, I was left thinking,

Gee, when I was in the special counsel Mueller investigation, you know, we, everything was detailed. I mean, you know, you read, again, not to harp on, you know, it's like you always try your last case, but like, you know, look at the Manafort indictment. I mean, it was really detailed. We wanted people to know exactly what he did. And it was chapter and verse, and there were lots of charts that we incorporated into the indictment. And so, yeah.

That's not here. There's no question, I'll give you my two cents, that this is legally sufficient. No one's going to be able to knock this out by saying that it's not pled adequately. But it's also not fair to a defendant going to trial if...

there is not further particulars. And so I fully expect that the defense, as they alluded to yesterday, is going to file something called a motion for a bill of particulars. And that basically is fancy legal language for, I need to know more in order to defend this case. And in this case, it is important because whatever the ground is for the felony bump-up,

They want to be able to know exactly what it is because they want to make challenges to it. Even if those challenges don't work, as you and I know, that's what your obligation as a prosecutor is to turn that over. And I was curious, like, one, is that sort of how you viewed this? And also, why didn't they do it now? Why wait?

Yeah, I totally viewed it the same way. The first thought I had was they're going to move for a bill of particulars. And just to go back, since we've talked about the Constitution a little bit already today, the reason that you have to be specific in indictment is because the Constitution's due process clause, right? A defendant, a criminal defendant has a right to

to due process. And due process means they need to know exactly what they're being charged with so that they can defend it. And here, you're right. They know they're being charged with falsifying business records with intent to conceal another crime. But what is that other crime? And that's important to them for legal challenges they might make, you know, that, oh, maybe you can or can't base a felony on this particular crime. And that's going to be hashed out through litigation. And they also just need facts.

So I suspect that the court will at some point require that. The only thing I can think of about why they didn't include that, you know, specify the sort of underlying evidence.

crimes that they're alleging the former president was intending to conceal by the false business records is maybe to maintain some flexibility with respect to what they need to prove for each count, 34 counts. And, you know, this is another concept of indictments. You know, you can charge in the conjunctive and prove in the disjunctive. And what that means is... We are now in the weeds, Mary. Yes, sorry. No, I totally know what you mean, but...

I'm like, we're both so nerdy that it's like, oh, I love this. Yeah, yeah. So when you have multiple ways of committing offense, so here, think multiple crimes that he's intending to cover up, you could, in the indictment, list them all out, and you only would have to prove one of them. So charge in the conjunctive with a bunch of ands, but you prove up at trial with an or in there, and any one of them is sufficient. Now,

That doesn't really fully explain it because still they didn't charge in the conjunctive. So I'm a little bit at a loss for this, except maintaining flexibility is kind of the only thing I've really got. But do you have a better theory, Andrew? I don't, other than because this was something that was sort of bugging me and then gnawing on me. So during my four minutes of downtime yesterday, I spoke to a friend who had practiced in the DA's office.

And he said, you know, that's just the practice of the office. And, you know, I just thought, okay, well, that's not what we would do federally. But there was a part of me that's like, okay, well, in some ways, they were treating Donald Trump like anyone else. And they just do, they fill it in through a bill of particulars.

Of course, what I was thinking, you know, in my snooty federal way, which is we wouldn't do that. But that was sort of the only answer I really got on that issue. By the way, I want to run by you. My theory that I was thinking of last night as I was coming home, just to harp on how hard I worked yesterday while you were on vacation. I was coming home at midnight.

In addition to the four theories that I talked about for a felony bump-up, it seemed to me, because of this idea that you could have a misdemeanor intended to further cover up another misdemeanor, that because you have 34 false business filings, basically the second misdemeanor

false business filing was a way to further and cover up the first one. You had to keep paying the hush money and you had to keep paying these checks. So it seems to me that works. And then you don't have to get into any of these issues about the intricacies of campaign finance law and tax crimes and all of these things that you and I and, you know, legal nerds out there on Twitter are, you know, turning themselves into a pretzel. And I was like, oh, yeah.

That seems really good. So in some ways, what it means is if you get really, really tired, sometimes your brain just sort of something pops into your head. But we'll see if that is something that the DA's office uses. I wanted to just quickly go over a little nugget of...

state law that I think it's important for people to know when they're looking at this, because some people might have said, I don't understand. It's great that these are all felonies, but does that mean that there's no opportunity for the jury to decide that there is a misdemeanor here? In other words, what if these felony bump-ups are rejected and not proved by the district attorney's office at

trial? And the answer to that is that no, they can still be found by a jury because the misdemeanors are what's known as a lesser included offense, meaning it's a subset of what's there. And a sort of typical charge that a jury would get is, you know, this is what's in the indictment. The government has to prove each element beyond a reasonable doubt. You have to be unanimous. All of that's really important. But if you don't find

this felony bump up, you can then turn to the lesser included offense. And then the judge describes that. So for each of these 34 counts, it is the case that a jury could be charged, that you could also end up convicting on a misdemeanor. Of course, the government still has to prove all of those elements. So that's just like a little

inside tip is to the somewhat unusual aspect of state law. Yeah. And you don't have to charge it in the indictment, right? It's just done in trial at the time of instructions, as you said, when the judge actually instructs the jury. And oftentimes the verdict form they have will also have that, right? Do you find him guilty of this greater offense? If no, go on to the lesser offense. So it's kind of like a fill in the blank.

Yeah. And that's one where the defense lawyers all know that. These are people who've practiced in state courts. So this is not one where there's unfair surprise. Everyone knows that lesser included offenses are things that can go to the jury. Yeah. There's something else I think we should talk about briefly on these potential felony bump ups. And that is that one of the state campaign finance programs.

statutes or election, I should say election crimes, not campaign finance, because it's not a campaign finance law. You're right. That is the bump up was really important to me. It is not one I had been thinking about in advance, although I also don't know New York state election law super well. But it to me goes again to this whole notion of this was just the beginning of an effort to sort of undermine democracy, influence democracy.

And that is because under New York election law, 17-152 is a conspiracy to promote or prevent the election of any person to public office by unlawful means. And so, again, this is getting to this effort to influence an election by promoting Donald Trump.

through unlawful means, through the payment of this hush money to squash a story that might otherwise have affected his prospects of winning. And so I think that was really significant to me when Alvin Bragg, when he was asked pointedly, directly at the press conference, what are the crimes that you're relying on here for the federal bump up?

And he mentioned the federal campaign finance law, which is just a limit on how much individuals can contribute to any one candidate. But then he talked about the state election law. I think it's significant. So, Mary, I wanted to hear what you had to say about something that I thought was just so in your wheelhouse, which was the issue of.

violence and the threats that have been made by Donald Trump, by Donald Trump's son and by his supporters, because that came up at the

the arraignment, I won't say I was surprised, but I'll give you my quick reaction before I have your expertise on this, which is I thought this is one fearless district attorney's office. You know, we saw them write two letters to Congress that were beautifully written, but were very bold. They were just not going to take any guff from people trying to interfere in a criminal prosecution. And I sort of thought the same thing here, like right out of the box, they were like, we're not just going to sit back and

when we have a defendant who is threatening the district attorney and his wife and the judge, and yesterday, the judge's daughter being mentioned by the defendant and the defendant's son. And I just thought, you know, good for them. They're not going to be cowed by him, and they would do all of this with anyone else. So the issue is, did they do what they needed to do? How does this affect either getting a protective order or a potential gag order?

And how do you see it? Because, you know, I don't know that everyone who's listening to this understands just how deep your experience is in terms of combating domestic terrorist groups, because that is really something that you are spearheading for the country in your current work at Georgetown. And, you know, it's just such important work. And I was wondering how you viewed what happened yesterday in

Do you view it as sort of isolated? Do you view it as connected to your work? So enough of me, because you're really the expert on this. So two parts of that, you know, in terms of connectedness to the work to combat domestic violent extremism, political violence, whether it's committed by groups or individuals, what we've seen in the U.S.,

over the last several years, really going back, frankly, to the time when the statement of fact starts in this indictment, is that the type of rhetoric that's been used in propaganda and false statements by Donald Trump and really dangling out violence, teasing violence, sometimes being even more explicit than that, has had a call-and-response effect for his most ardent supporters. And things that he says...

online or at campaign rallies, you know, sometimes it maybe is not the next day. Sometimes it's maybe days later or weeks later, but people do act on that. We saw it during 2020 when Donald Trump would say things like liberate Michigan, liberate Minnesota, and you'd see armed attacks on state houses in opposition to public health measures to combat COVID. You saw it during racial justice demonstrations that summer when Donald Trump would, you know, say that

Violent anarchists were coming to riot and loot and pillage and armed extremists would go out ostensibly to protect against that, resulting in things like the tragic shooting in Kenosha, Wisconsin, which killed two people and seriously injured another. And then, of course, you know, we saw that with respect to January 6th.

Be there, be wild, telling the people to come and do what he hadn't been otherwise able to accomplish, which was to overturn the will of the people and prevent the peaceful transition of power. So he has that call and response relationship with.

with his supporters who are willing to engage in acts of violence. And I think what the DA and actually the assistant DA in court wanted to do is to start a record with this judge of the public statements that were being made that were of a threatening nature, including reference to there will be death and destruction, which I think was in one of

the former president's truth social posts, the DA said, I'm not asking for a gag order right now, but I think what he wanted to do is get the court to say something about it, to warn the former president who was sitting right there in court in front of him that you cannot keep doing this. And that's exactly what the judge did.

The judge said, I'm not going to issue a gag order, and gag order would be basically an order to not speak on certain topics. I'm not going to issue a gag order here, and in fact, the government isn't even asking for one yet, but I expect –

you to be civil. I expect you not to engage in the type of speech that promotes or encourages violence. And he said that directly to Donald Trump. And I think the other thing that's important here is he, you know, previewed that if these kind of things were to continue, he would entertain a motion, including potentially for a gag order. And he also made clear that he understands this is a man who's running for the president of the

And so he needs to have leeway to speak, right, to go to rallies, to campaign for himself. But that – so he wants to tread carefully here so he does not infringe on the president's First Amendment rights to speak and his right to campaign.

But, you know, you don't have to encourage or incite violence as part of your campaign. And I think that the judge was going ahead and sort of setting a red line right now. Like, let's all be clear. If this kind of thing continues and there are threats out there, I will entertain a motion to issue some sort of order. Well, this is such an interesting area because, you know, Donald Trump, there's this clash of what he wants to do politically and now what can happen to him legally, right?

Because, you know, my sort of view in this, I'm not a political pundit. And, you know, he sort of wants to run as the outlaw president, you know, this sort of counterculture, the strain of America that's sort of very anti-government, anti-establishment, now certainly anti-justice system, because he's about to be held to account over and over again there.

So he's got that side of him, but he's got a judge saying, you know what, you continue doing this and there are going to be consequences. And he's just never been in that situation because the last time he was under criminal investigation, he was the president of the United States. And he also, under DOJ policy, could not be charged under the Mueller investigation. But he doesn't have those tools now. So he's got these really conflicting things. The other thing that I thought was just so interesting is I

I've prosecuted organized crime cases in New York. And so I worked on the Genovese family cases and the boss there, the Gambino cases, Colombo cases, and up to including the boss of those families. Do you know how many times that the boss of the Gambino family, the Genovese family, the Colombo family threatened a prosecutor or the judge or their family? That would be zero. They don't do that. Yeah.

It's not good business. They are only going to get more scrutiny. So that was just a thing that didn't happen. Right. I mean, I like to think that I'm special, but guess what? We're fungible. We're fungible. If they take me out or you out, there's another one. Exactly. If they take the judge out, there's another one. We keep coming.

So the idea that that you have Donald Trump, again, the former president of the United States, where there is a discussion in court about inciting violence. I mean, of course, it's hard to say you're surprised, but it's still shocking. More of prosecuting Donald Trump in just a moment.

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Now back to the podcast. AT&T, connecting changes everything. Okay, so I wanted to address something that's a little arcane because people were really getting it wrong yesterday, which was this whole issue of one of the three defense lawyers who appeared in court was Joe Takapina. He is a fairly well-known defense lawyer in New York. And

And one of the issues that arises is that he has, in the past, had an attorney-client relationship of some type, somewhat disputed as to what it is, but he did have some consultation with Stormy Daniels. So there's conflicting accounts about how significant the representation was, what stage it was at, whether he actually talked to her. But I think by all accounts,

Everyone agrees there was an attorney-client relationship. And even Joe Tacopina, in a prior iteration before he got to court yesterday, had said that repeatedly on air when he was doing press. In fact, when he was on air years ago, he was attacking the president and defending Stormy Daniels. What's the issue here? Well, Stormy Daniels, the government says, is going to be a potential government witness. You cannot...

if it was somebody you have an attorney-client relationship with, you cannot attack a former client unless they permit it. And so the reason this was raised in court, from my perspective, is that there is a Sixth Amendment right to conflict-free counsel, meaning Donald Trump has a right to have counsel

who does not have this kind of conflict, meaning that he picks a lawyer who's free to cross-examine anyone zealously, as is required if you're a defense counsel. So he's hired somebody who has got this prohibition. And it doesn't mean he can't choose Joe Takapina, but the judge has to be sure that

that the defendant knows of that limitation and is accepting it because what the judge and the DA do not want to see happen is they go through a whole trial. And then afterwards, the defense says, you know, I was convicted, but my counsel was not aware that they couldn't really fully represent me.

And I've been in that situation with what you're really doing is by protecting the defendant's Sixth Amendment rights, you're also protecting the court and any conviction you get. And remember, the defense has no interest in fleshing this out now, because if the defense can sort of keep this on the down low, they get to have two bites of the apple, meaning that if there's a conviction, the defendant here, Donald Trump, gets to raise up

I was unaware that Joe Takapina had this problem. So this is something that you do see in court at the federal level, at the state level, which is fleshing this issue out. Some people speculate it was done to bait Joe Takapina. No.

No, it was to avoid an appellate issue. It was to avoid getting this whole thing reversed if there is a conviction based on exactly what you just said. I didn't know. Mary, aren't you impressed? I know this. Yeah, it's great. Isn't this great? And you even cited the Constitution. It's great. Wow. It's good stuff. Yes.

So at the federal level, I remember this is called a Curcio waiver in the Second Circuit. And I remember during the special counsel investigation, this came up because Rick Gates had counsel who had a potential conflict. And we remember we said we need a Curcio hearing. And we were in D.C., not in the Second Circuit. We were in Washington, not in New York. And the judges looked at us like going, say what? Right.

But we worked through it. Yes, yes. They got the point. And I thought that was very effectively done. Now, it did so happen that it did end up baiting Joe Tecopino anyway, who got up and made basically an entire argument about why he didn't have any conflict and never really represented Stormy Daniels and backtracked on all the things

that he has said publicly over the years, but which had seemed really out of place and inappropriate in this arraignment. This is not about Joe Tacopino. This is actually about Donald Trump. And there'll be time to flesh that out. But the judge gave the warnings and,

Donald Trump heard those warnings. Absolutely. So why don't we turn to a couple other things? What has to do with the schedule? And I was wondering what you thought about that. You know, one of the things that was a little surprising to me was that the next court date is not until...

Now, obviously, there has to be discovery. There has to be an opportunity to make motions. And you and I have talked about this, which is that's what due process requires. And the rule of law requires that any defendant, whether you like the person or don't like the person, there has to be time to prepare and to get material. And the government has an obligation to turn that stuff over. I was a little surprised that the...

government wasn't pushing for sort of a faster schedule. The court even made a comment about this as a, he didn't quite use the word leisurely, but that was sort of the drift of it. And by the same token, if you're Donald Trump and you're sitting there saying this is a witch hunt and I'm innocent, you know, he could have asked for an immediate trial. I've been in cases like that where a defendant goes to court and says, I'm ready, let's go. I mean, this is not a case where

where Donald Trump doesn't know what the facts are and there wasn't a lot of buildup to what was going on. So, you know, it's sort of an obvious point, but

You know, if he really thought he was innocent, he could have his day in court really soon. That would not be his style at all. His style in litigation is delay, delay, delay, as we've seen now for years. And certainly in the Mar-a-Lago investigation saw all kinds of efforts to delay. But you're right. The government started out very early on saying we are hoping for a January 2024 trial date.

And I think my recollection of the response was by the defense was, well, that's really aggressive. And then they got down to breaking this into pieces. And I think I first thought December 4th for the first hearing was kind of crazy and what was going to take so long. And I do think part of this is just New York practice. The judge talked to the parties about how long was it going to take for the government to provide discovery. The

Other assistant district attorney spoke to the phases of discovery that they were going to be providing. That means evidence that they're going to be turning over the defense so that the defense can examine all of that. The defense – so they said they could do that in about 65 days.

The defense counsel then said, well, we would need at least six weeks after that in order to file any motions. He actually wanted to file motions in phases. The judge says, I don't want to do phases. I'll give you till August 8th to file all your motions, which means discovery's got to be done in ample time for the defense to file motions. I'll then give the government till September 19th to file all of its responses, which

I'm then going to set December 4th as our next court date. And then what he said is, if I don't think I can get to all the motions before that, I'll let you know. So that told me he's planning to basically rule on the motions on the papers and be ready to announce his ruling on December 4th, or maybe take some, ask some questions and get some clarifications if he needs to before ruling. So, and I don't know if you took it that way, but then the timeframe made more sense. It's not like nothing's going on until December 4th.

Lots of things are going on, and the parties may be having to go to him if there are discovery disputes or it could be that if they're filing a motion for a change of venue, they'll argue this really should get decided before December 4th, although he seemed like he wasn't interested in ruling on motions before that. But I think we'll see – there will be lots going on, and in many ways in a case like this – and this is something the judge said –

you know, these things take time. And even the judge thought January 2024 might be a little bit early for a trial date. Yeah, it'll be interesting. I mean, the one thing I had in the back of my head was this idea of what's called a superseding indictment. Right. Pure speculation on my part. What a superseding indictment is, is just additional charges that get added into a case. I'm not sure that's going to happen. But, you know,

you know, the tea leaves on this are that this case, the so-called hush money case, had a statute of limitations problem, meaning that the case has to be brought within a certain amount of time or you're out, meaning the law is basically you get peace and repose after a certain amount of time, and this case had

that issue. And so it had to be brought by a certain time. It's going to definitely be litigated as to exactly what that time is. There are various ways in which that timeframe can be extended, whether you're absent from the jurisdiction or because of COVID.

So that will get litigated. But that was the reason why this case had to be brought. If you're in the DA's office, you're thinking, I have to bring this as soon as possible, even if I'm investigating other crimes as to which there's a longer statute of limitations. So we do know from interviews with the prior DA that

and other reporting that there certainly was a larger financial investigation. We know about some of that because Letitia James, the Attorney General in New York, has a civil case with respect to that large financial case. And so there's some possibility that what's going on is that they brought the case that they needed to bring and was ready to bring now, and that some aspect of

that financial case could still be brought and potentially folded in or not, either as part of this indictment or as a separate indictment. But that's one where it's certainly speculation, but they have a lot of time. They have a lot of runway in which to do that. And one other thing I just wanted to address, because it keeps on coming up from Donald Trump's team, is the issue of change of venue. This is an issue I actually...

Mary, I'm patting myself on the back a lot today, but this is one where I actually know the law and it's actually been litigated all the way up to the Supreme Court from the Enron case, which I worked on 20 plus years ago.

Um, and in Enron, God, it doesn't seem like it's been that long, but okay. Yes. Yes. Um, so, you know, it's funny at times I think that, and at times I think, oh, it does feel that long. True. So, um, Jeff Skilling was the head of, of Enron and he, um,

claimed that the Enron case should have been moved out of Houston because he couldn't get a fair trial in Houston, even with a lot of procedures to vet all the jurors. And what the Supreme Court said with respect to that issue is that

That that's something that that could be an issue if you've got a crime in a particular location where, let's say, you know, murders in a small town where there's such inflamed passions that it really needs to be moved somewhere else where people haven't heard about this. They haven't followed it as much.

And you really increase the chances of having a dispassionate jury, which is what you want to have. Obviously, you don't have to have a jury that's never heard of the case. You just need to have people who can decide it based on the facts and the law and not what they've heard outside of the courtroom.

And in the Enron case, what the Supreme Court said is, really, where are you going to go? If you remember at the time, this was huge national news. And it's not like you could sit there and say, oh, you know what? In New York, they haven't heard of it.

or in Maine, they haven't heard of it, or in Wisconsin, name your state. It's known everywhere. And that's this case. You know, so what Trump is really saying is what Paul Manafort said, which is, can you please move this to a place where there's more Republicans voting?

You know, Paul Manafort actually was pretty bold. He just said, can we just move it? And then he just cited the number of Republicans versus Democrats in Washington, D.C. versus in Virginia. And he even wanted it in a certain location in Virginia where there happened to be, you know, more Republicans.

Republicans. Well, this is pretty much what Donald Trump said too, right? Like I got 1% of the vote in lower Manhattan, and therefore there shouldn't be any case there. I mean, he hasn't officially moved for a change of venue. But I thought, I don't think change of venue is based on people's political voting or their politics at all, frankly. So I think that's going to fail if and when it is made for all the reasons you've just indicated. There was a judge in the district I grew up in, in the Eastern District of New York,

who at one point turned to a defendant and said, I have two words for you, denied. Right. Yeah. Yeah. No, that's good. And, you know, we're making light of it, but it's actually important, right? It can't be that the law says, oh, if you have political leanings that are different from the defendant, you can't be fair and impartial, right? Because

Change of venue is about, as you just said, it would be impossible to get a fair and impartial trial or a fair and impartial jury. And we cannot have a system where the politics of the defendant and the politics of the jurors are what governs fairness and impartiality.

the jury selection system under law presumes that really it starts from an assumption that everyone can be fair and impartial. And if they have things in their own personal background or history or some sort of superior knowledge about the case or a connection to the defendant or the defendant's family, those are all kinds of things that they will get asked about during voir dire, the jury selection process, and always ask, can you be fair and impartial? And most of the time, if

The potential juror says yes, a court will deny a challenge to that juror being on the jury. And then if a person, if the defendant or the government wants the person off the jury, they'll have to use what's called a peremptory challenge. But I'm getting way ahead of myself. Now I'm talking about the trial. So we can get there when we get there. That reminds me of one of the jurors, actually the only juror who spoke in one of the special counsel trials. She said that

I listened to what I was told, which was to base the decision on the facts and the law. And she said, I'm a Republican, and I literally left my MAGA hat in my car. And it was such an interesting thing because it was such an embodiment of what she was told to do. And then yet there was this physical embodiment of what she was doing. And it's so reassuring that there are people who can actually just adhere to the rule of law.

So with that, Mary, there is going to be a lot more. We'll be here next week, absent breaking news that we come back on earlier. But thank you so much for this discussion. To be continued. Yep. Great to break it down this way. Thanks, Andrew. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

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.

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