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Hello, and welcome to another episode of Prosecuting Donald Trump. Well, Mary and I have something special for you today. We both have been getting various questions from listeners, which we love reading, and we sort of on a one-off basis have been trying to answer those from time to time. But instead, we are going to answer the two questions

the more interesting questions today in the podcast. And then at the end, we're also going to let everyone know how they can submit questions. And then we'll make this a regular feature to get to essentially the mailbag and go through questions. It's a really great way for Mary and I to hear from you and to respond to what seemed like the most interesting questions or things that Mary and I may have

of probably me more than Mary have not answered sufficiently. So let me start by saying hello, Mary. Hi, Andrew, and I'm glad to start this mailbag feature. It's educational for us. It really helps us to plan to see what people want to learn more about. Keep them coming. So we're going to go to those questions, and then we're going to talk a little bit about a downside of the January 6th committee. If you've been subscribing to the podcast, you know Mary and I are big...

big fans of what the committee did, and particularly given that they don't have grand jury subpoena power, which Mary and I used to have, and it's a huge tool, but they didn't have that, and they just did an amazing amount of work. But we're going to try to flag some downsides that could come into play as more cases come to fruition and how the defense could use that

But let's first turn, Mary, to the first of the questions we got. And it was really interesting. It was basically asking us about motives. Like, does a prosecutor have to prove Trump's motives, whether it's in the Alvin Bragg Manhattan case, whether it's in the January 6th case, whether federal or in Georgia, or in the Mar-a-Lago case? Just sort of how does the role of motive play

come into play. So, Mary, why don't you start us off? I mean, you've done so many cases, both criminal and national security, as to how you think about mode of evidence. I want to start by making some distinctions, right? Because

Motive is different from knowledge and intent. So almost every criminal statute requires the prosecutor to prove that the offense was committed knowingly and with intent. The law just really abhors the idea of strict liability, holding people

criminally liable for something that they didn't intend. So it's very few statutes that say you're liable even if you didn't intend to do that. And that means the prosecutor has to prove not necessarily that you knew the law you were breaking, but you knew the conduct you were committing and you intended to commit that conduct. That's general intent. Sometimes a statute will require a specific intent, like in terrorism cases, for example, a specific intent to intimidate or coerce

the civilian population or affect government policy through intimidation or coercion. But many crimes, it's just

general intent. I am intending the actions that I'm committing. So by the way, when I was doing the Manafort case, that's an example of another context where conversation about specific intent comes into play. Because in tax cases, one of the reasons it can be hard to prosecute is you have to show willfulness. It's a specific intent to violate the law and that you know you're violating the law so that

Usual aphorism, which I think a lot of people have heard, which is, you know, ignorance of the law is no defense. Well, sometimes it is. Exactly. So like with Paul Manafort, we had to show that he knew that he was filing the tax code, the tax code, not the specific provision, but he had to know that it was actually illegal what he was doing. So anyway, great distinction.

So motive, though, is not generally sort of something that the prosecutor is required to prove because, you know, intent kind of takes care of making sure that that mental state is appropriate for holding someone criminally responsible. Motive is really the why, the question of why did the person do this? And, you know, for prosecutors, from the beginning of an investigation, you're always looking for the motive, because if someday you're going to be in front of a jury trying to prove to that jury that

that the person you've charged had committed a crime, you want to tell the story of why they did it. Sometimes it's obvious. So, for example, in a robbery, right, the motive is almost always money or goods or jewelry or whatever it is that the person is stealing. Sexual offenses, right? Motive is usually...

some sort of taking advantage sexually of another person. And they almost speak for themselves. But for some crimes, it's a little less clear what the motive is. And this question, maybe I'll kick it back to you, Andrew, because I think the context of how this question arose for us and was posed to us really does

show why in the Mar-a-Lago case in particular, motive is working a little differently. It's a little less clear. Yeah. So I do think that that's exactly the right way to pose it, which is if you think about the three different types of Trump criminal investigations we've been focusing on. So there's Alvin Bragg's case,

There's the January 6th cases, which I think of as Georgia and federal, and the Mar-a-Lago. So in the January 6th case, motive is just, as you said, it's evident. It's to stay in office. It tells itself. That's not a hard one. The very, you know, investigation tells itself. And in the Bragg case, it...

could become relevant to a subset of the case, which is one of the ways in which Alvin Bragg-- one, but not all, of the ways in which Alvin Bragg says that this goes from a misdemeanor to a felony is in connection with campaign finance. So the motive of whether this was just being done for personal reasons, that he was paying this hush money to keep the information from becoming disclosed to his then and current wife,

that becomes important because it's either campaign finance, which means there's some sort of campaign finance motive, or it's a personal motive. So that actually becomes relevant. And that's why Alvin Bragg in the indictment talks about the evidence that disputes and refutes that idea that it's just personal. So motive becomes really important to that kind of crime and that's sort of what

the bucket that Mary talked about, which is there's some crimes where motive actually is sort of buried in and implicit in the crime. When I did an obstruction case in Arthur Andersen, you need to show that the motive is to keep information from the government. For instance, you can throw pieces of paper into the trash for perfectly innocent reasons, and you could throw information in the trash to keep it from the government. Well, the latter would be the motive that would make it a crime.

So in Mar-a-Lago, that is where there might be all sorts of motives that could come into play. But it's important to know that

The government doesn't legally have to prove motive in that case. It is something the jurors might be very interested in knowing, and sometimes it's really almost essential in order to prove the case, and other times it's really not. You can go to the jury and say, you know, I don't know what the reason is. I don't know if he was planning on selling this stuff. I don't know if he did it for his own self-aggrandizement. I don't know if he's just sort of

complete narcissist who doesn't think the law applies to him, or maybe all or some of the above. And I don't know the reasons, but we don't have to prove that. All we have to show is he, for instance, illegally retained the information, or he lied to the government about it, etc.,

And let me just interrupt right there because we were just talking about general and specific intent. And one of the crimes that was listed in the affidavit in support of a search warrant and one that we've talked about repeatedly on this podcast is obstruction, right? One of the offenses that Jack Smith is –

is investigating is whether Donald Trump obstructed an official investigation. So the particular statute they're looking at is whether he altered, destroyed, mutilated, concealed, covered up or falsified any document. And here, this is where this is a specific intent crime with the intent to impede, obstruct or influence the investigation or proper administration of any matter within the jurisdiction of an department. And that would be the Department of Justice.

So here's one where there's a specific intent requirement, but not a motive requirement. We don't have to show why he did that. We have to show he intended to obstruct. But the question here is why? Why not just when he found out he had classified documents, do what Biden and Pence have done and said, come on in, let's make sure I don't have any more documents.

Search my house, search my office, search every place I've ever spent time. So what example, Mary, of I think the prosecutors dealing with

the fact that they didn't precisely know the motive and that you can still get a conviction is in the Murdoch double murder case where Mr. Murdoch was on trial for killing his wife and son. And, you know, the jurors afterwards said, you know, we don't really know why. Um,

It could be a whole variety of reasons. And the prosecutors sort of opened on one theory, sort of closed on a whole variety of theories. That's not ideal. But basically, it's like, we don't know. It could be a bunch of things, but we've proven all of the necessary elements. And, you know, sometimes jurors are like, yeah, that's right. We don't know. And maybe if the defendant had taken the stand, which he had no requirement to do, maybe we would have known more. But you can get a conviction without...

motive. It's just that it makes it much easier if somebody has a motive that you can show. By the way, it's also important to know motive isn't everything. So you can have motive and still be totally innocent. I used to always give this example of, you know, you can inherit money from a family member when they died. It doesn't mean you killed the person. So...

So motive is helpful, but it's certainly not everything. And one reason beyond the storytelling aspect is motive can help you prove intent. But a lack of motive, sometimes jurors can look at as like, that makes me feel like you haven't proved intent because you haven't shown me the why. And for Mar-a-Lago, it's particularly tricky because we've seen reporting about some of the subpoenas of information about business dealings of the Trump Organization with foreign governments.

certainly business dealings with the Saudi Arabian live golf enterprise, you know, thinking, hmm, maybe some of his keeping of classified documents was either to try to provide that information, hold that information as leverage, something like that. But that's speculation. And we know with Trump, he also just seems to feel like he's got the power and the authority to keep whatever he wants. And he might be one for which motive is something that's going to be really difficult to discern.

More prosecuting Donald Trump. Listener questions in just a moment.

And now, all MSNBC original podcasts are available ad-free and with bonus content, including How to Win 2024, Prosecuting Donald Trump, Why Is This Happening?, and more. Subscribe to MSNBC Premium on Apple Podcasts. So let's turn to another question that we got, which we started to address last week, and we got more questions about this, which are totally understandable, having to do with timing.

Mary and I have been watching the clock very carefully, and we got questions about exactly how the timing work, what's happening with if the Mar-a-Lago case goes first and before the Fonny Willis case, and what if Jack Smith's 76th thing goes even after that, and what happens with the Bragg case, which is now...

scheduled for March of next year. Sort of how does that all work? I know one of the questions was how do the different cases coordinate with each other? So I'll take a stab at that and turn it over to you, Mary, to get your thoughts on this. But first in coordination, it's not so much coordination, but each judge who has a case, and this happens frequently,

I won't say often, but it's not unusual to have a defendant or defense lawyers who've got conflicting schedules. And what happens usually is the first in line, the first in time, that judge will confirm

call or be called by other judges with conflicts to make sure that they're scheduling things around the other person's time. But each judge is going to be setting their own schedule. And the only reason they would be looking to the other cases is just to make sure that they've got a clear schedule.

schedule and they're not scheduling something in a rude way. They just want to be polite to the other judges. But I think, as I mentioned last time, I think that depending on who the judges are, that a lot of judges might really want to see their case go to trial as soon as possible, consistent with the defendant's right to due process, because there's a real sense of the electorate needing to know that information before deciding to vote. So that's one of the timing issues.

Yeah. And, you know, with Mar-a-Lago, there could be complications in timing because it's a case that, you know, if it's brought, involves classified information, which means right at the beginning, there's going to be the need for a protective order. Any classified information that is at issue and is evidence in the case will ultimately have to be provided to the defendant and defense counsel. And if they're not properly cleared, the defense counsel, they'll have to get proper clarification.

clearances. They'll only be provided in a secure environment at the courthouse, which means the lawyers will have to physically come to the courthouse to look at those documents, and so will Donald Trump. You can't take them home with him to prepare the case, and neither can defense counsel. And then there will be, and we don't have time for this today, if and when it's necessary, we'll get into the classifieds. I think I'm going to hear the word SIPA. SIPA! SIPA!

classified information procedures acts because when you're involved have a case involving classified information the defendant may want to introduce other classified information that the government wasn't planning to introduce in order to make up some sort of defense etc so there's a whole lot of procedures and motions that can be filed

surrounding how the defendant will get a fair trial even while we have classified information. And so that could complicate things a little bit in terms of the timing. And so if I were the government, I'd be trying to use as few classified documents as possible. And we've talked before about the obstruction count, if there is one, really wouldn't even require the introduction of classified documents. And so the

I feel like a jury would kind of think, well, shouldn't we at least have some underlying charges related to the classified documents and not just obstruction? And we'll see if any of this happens. We, of course, are speculating that there even will be charges, but that's a factor that time will have to be built in for those type of motions and getting the protective order done, et cetera, et cetera. And I can imagine his attorney's

Yeah, absolutely. And that's where the attorneys get to say, well, you know, I'm on three other cases. So I'm busy.

But I agree with you that that is what they're going to do. The other issue that people raised is, well, we know about an indictment when it is voted by the grand jury or will it remain under seal. So sometimes the grand jury votes and it's under seal for a long time. That's usually done when you're trying to find the defendant or you're waiting for them to come into the jurisdiction and then you nab them and they don't know that they're indicted.

That's not the case here. And there's actually very little reason, and I would argue almost any reason, to have a sealed indictment. Now, there may be, in fact, a sealed indictment for a day or two, but not more than that, simply for sort of safety. And that would really be to get, yeah, exactly, courthouse safety, all of that, to get some plans and done. It wouldn't be because you're trying to, you know, keep it from...

the charged defendants. Yeah, absolutely. So that's exactly in this special counsel case. We did it both ways of memory serves. Sometimes it wasn't under seal at all. Other times it was under seal for a very short time, 24 to 48 hours, just for the logistics of securing the defendant, having them come to court, making sure everything was as safe as possible for everyone involved. So this is one where if there's an indictment, we will know, I think, very

very, very soon. And as you saw in the Brad case, there are ways in which that can leak out, because if you have the New York Police Department, the Secret Service, the defense all knowing about the upcoming charges, there are a lot of ways in which that information could become public. So I do think we're going to know that. And then there's also this very interesting thing, because it's a special counsel investigation, and this sort of relates to

Our third topic, which is the unusual nature of this case, but first,

It is required under the special counsel regulations that there is a report at some point. It's not actually in the special counsel regulations how robust that report has to be. We've seen in the Durham case and the special counsel Mueller case that those are very, very lengthy reports, but it could be actually relatively short. And also that report that is issued by the special counsel is very,

by regulation, a sealed report, meaning it's, sealed is actually even the right word. So that's probably a mistake. It's that it's a private report from within the Department of Justice to the Attorney General. It's only made public. Confidential is the word in the regulation, a confidential report explaining the prosecution or declination decisions reached by the special counsel. See, I do this podcast with like pieces of paper that I can read from. This is why it's great to have an appellate

appellate lawyer here. By the way, it's like, and I'm just winging it because I'm thinking, oh, I was on the special counsel investigation, so I know, but it turns out I don't. Mary knows. So that confidential report goes to the attorney general, and then the attorney general decides whether it's made public or not. That's what happened in the special counsel Mueller case. That's what happened in the John Durham case. There's another step there, though, and this relates to your point about when it becomes public, is that there's also a requirement that

Who are you talking about?

We know that, you know, oftentimes as soon as you tell something to Congress, it kind of becomes public. I'm shocked. And so what's interesting here is there is a requirement that that final report be submitted to the chairman and ranking minority member of the Judiciary Committee of each House and Senate, and that it include whether the Attorney General passed.

And so.

When we're talking about a report that would potentially announce charges, I think there would be some concern about giving that over to Congress before it was ready, otherwise the indictment to become public. The other thing is, and this is why I think your point about it could be a pretty short report, it could be kind of like if there is an indictment, it's in a speaking indictment, one that describes all the facts, that could essentially be the report.

Right.

Here's the defenses we anticipate. Here's how we'll respond to them. No way, no how is that becoming public, I think. Yeah, absolutely. And the special counsel Mueller investigation is a really good example. I mean, we had incredibly lengthy prosecution memos, but we also issued a separate report. That report is what ultimately came.

became largely public. So, again, I think that Jack will issue, as required, a report. It may not be very lengthy, and it also will not be prior to the indictments, and I don't think it'll be prior to any trials. So it'll be quite some time. But that goes to...

The third topic that Mary, you and I have talked about, which is the very unusual nature of the January 6th committee investigation and how it was so beneficial to where we are, at least at the federal level, because in my view, it really spurred action. I think it in some ways embarrassed the department in that they were so far ahead. At least you heard that a lot from the committee members. But

They developed lots and lots of proof. They interviewed lots and lots of people. They did an amazing job. That's the plus. Let's talk about the minuses. The biggest minus I see is, I think to understand it, you need to understand how normal discovery works in a criminal case. In a criminal case,

There's a lot of discovery that the government has to turn over, but there's limits about when it has to turn that information over and also the nature of the data that's being turned over. So normally witness statements, people you've interviewed and who you may call as a witness, for the most part, the law actually only requires those to be turned over in

until after the witness has testified on direct examination. I mean, let me just repeat that. You do not have to turn that over until after the witness has testified on direct examination. So if you're a defense lawyer, you're like,

So literally, that could be the person gets on the stand. They start testifying. You still don't know what their prior statements are. Now, that's the rule. Right. Not the reality. In reality, no judge wants that because the judge might have to delay the case to give the defense lawyer time to prepare, etc. So it's very, very rare absent rule.

real concern about obstruction and safety of the witness for a prosecutor to stand on his or her rights to do that. And very often it's given over a week, two weeks, three weeks, months before. Some judges have local rules. When I was in for Amy Berman Jackson, this was all given over months and months before, absent some really grave concern that you've articulated to the judge. Here,

All of the witness statements from the January 6th Committee are already public to the defense and to the prosecutors. In addition, when you're preparing a witness,

to be interviewed, if you're a defense counsel, if you're a prosecutor and you're preparing them to testify, you're making sure there's no inconsistencies, trying to make sure there are no mistakes, and you're preparing them with an eye towards how this is going to play out in a criminal case and how they might be attacked or undermined. And you're very, very careful about

that and how any flaw is going to be taken advantage of by the defense. And I should say taken advantage of in the way that you're supposed to if you're a defense counsel. That's supposed to. That's their job. Due process, right? But that's not necessarily what you're doing if you're interviewing hundreds and hundreds of witnesses for a congressional hearing with the same eye to how those statements could be used, if they're incomplete, if they're mistakes.

if they're inconsistencies, if they're just memory lapses. So all of that is early fodder, not just that they're going to get the material early, but they're also going to potentially get information that is not as meticulously prepared and sifted as a prosecutor would. Yeah. And, you know,

A lot of these witnesses then went into the grand jury and gave additional testimony, right? So here's a whole other area where if there's any inconsistencies between that grand jury testimony and what they said to the select committee, those are things, again, defense counsel will point out to try to attack the credibility of witnesses. And it's something the defense counsel, as soon as they get the

the grand jury testimony of witnesses that the government intends to call. That's what they'll be scouring it for. There's another way that the defense can get testimony early besides just under this Jenks rule, the rule you've been talking about, Andrew, that most judges go ahead and require you to turn over early as a prosecutor. And that is if there's anything contained in that testimony or any other evidence that the government has acquired that is exculpatory or impeaching.

So the government's under an obligation, a constitutional obligation under the Due Process Clause of the Constitutional completely apart from this rule that we call the Jenks Rule to turn over with enough time for the defense to make use of it any information. It doesn't even have to be admissible evidence, any information that would tend to exculpate, meaning suggest the person is not guilty –

or impeach any other evidence, meaning evidence that would suggest that a witness's testimony is not true or not credible or some other piece of evidence was falsified or not really what it claims to be, etc., etc. And so that's all part of that governmental obligation to make sure that the defendant...

gets a fair trial and the rule applies to any kind of information that could be material. And of course, there's lots of arguments about materiality, right? But that's the way the Constitution works. And that constitutional obligation, that due process obligation for exculpatory impeachment has a different timeline than just normal witness statements. No congressional statute really can trump that. And it's supposed to be turned over, that kind of exculpatory impeachment evidence,

at the very latest, in sufficient time for a defense lawyer to be able to use it. So that's one where, at least I was trained, just turn it over immediately. That's just something you have to give over. You just don't want to sort of monkey with slicing the salami too thin, as they used to say. One example, Mary, I was thinking of when you were talking about just this volume of

of prior witness testimony, which we call 3500 or jang-sac material, is when I was doing organized crime cases, I'd put Sammy Gravano, who was then the former underboss of the Gambino family. He testified over and over again in Gambino cases, Genovese cases, Colombo cases.

And we used to have this trial court that was just binders and binders and binders. And each time you testified, you had more 35-inch material that you had to turn over. And of course, I was trying to look at it. If you're a good prosecutor, which I hope to be, I was looking at it with an eye towards what the defense was going to do with it. So you had to look through it for all of these inconsistencies. Did he make mistakes? Was there anything that was incomplete? Like, what's a defense lawyer going to do with it? And so you just had...

tens of thousands of pages. And it just makes it much harder to put a witness on because it's a dream for a defense lawyer. Because as we used to say, any day that the jury is focusing on the witnesses and, you know, essentially the government table and not the defense table is a good day for the defense. So, you know, if they have lots and lots of material to sort of

pick at any perceived inconsistency or real inconsistency, that's a good day for them. So I think this will be a little bit like that where you have just so much information that the defense has. And just to put my defense hat on for a moment because I have been a defense lawyer, in some ways it's like, good. It's good. If you've got the proof, turn it over,

If there's inconsistencies and mistakes and all those, the rest, the defense should have it and be able to take advantage of it. But it's not just here. It's not just the transcripts of depositions. It's everything amassed by the special counsel gives them a real heads up, including, remember, those criminal referrals. Now, Jack Smith and the Department of Justice aren't bound to investigate the crimes that Congress suggested they investigate. Nevertheless, it shows the defense that

Donald Trump and maybe others, John Niesman, Kenneth Chesbrough, others who are named in the special House Select Committee report, it shows them sort of like the evidence that the House Select Committee thought was probative of those specific offenses that they made referrals on. So there's a lot of fodder there, way more than in an ordinary case for the defense to go through and plan for, really plan in advance.

So, Mary, it's been great talking to you. It's been great answering listeners' questions. Let me tell everyone what they can do if you'd like to submit questions. You can email us at the following email, prosecutingtrumpquestions at

N-B-C-U-N-I. N-B-C-U-N-I dot com. Send us any and all questions you have. Mary and I look forward to reading them and answering your questions as we go along. So, Mary, I'll see you soon. And we'll talk some more. Yep, absolutely. Thanks so much for listening. We'll be back next week with much more. The senior producer for the show is Alicia Conley.

Our technical director is Bryson Barnes. Jen Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow, or better yet, subscribe to the series.

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