$148 million
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Hi, welcome back to another episode of Prosecuting Donald Trump. It is Monday, December 18th. I'm Andrew Weissman. I'm here with Mary McCord. And Mary, one thing to say to you.

$148 million. Yeah, it's a huge, huge verdict. It's a huge hit to Rudy Giuliani, but it is a huge development and advancement in accountability. You know, we've been talking a lot on this podcast about accountability, both civil accountability and criminal accountability. And I think the jury said, we're holding you accountable for what you've done, Rudy Giuliani. Yeah, and a point you've made, Mary, is that

they are not alternatives. They can work hand in glove. You can have a civil case and a criminal case. And with Shea Moss and Ruby Freeman, that is literally true because they are front and center in the Georgia criminal case. They are going to be front and center. And we see that in the briefing in the Jack Smith DC criminal case. And now we have this award. Well, we don't usually have a lot of guests on the show today,

And kind of for good reason, but we want our guests to really speak to things that are important and salient and not just be a guest for guest's sake. So we have a really, really lucky today because the lead attorney who represented Shea Moss and Ruby Freeman is going to join us, Mike Gottlieb. And so that'll be the last part of what we do. But what are we going to do? What are we going to talk about?

How are we going to kill time while we're waiting? Well, it's hardly about killing time because, boy, the developments are fast and furious, as we say every single week. We will talk a little bit about the former president's immunity appeal. We talked about the immunity decisions last week and the fact that Jack Smith had sought immediate appeal. But we will talk about the ramifications of that for the timing of the trial, etc.,

and also how that fits in with the stay that Judge Chutkan granted, the partial stay that Judge Chutkan granted last week. And then we'll turn to another issue that is in the Supreme Court. The immunity issue is being briefed about whether the Supreme Court will take cert, but they have not accepted cert yet. We'll talk about another issue where they have accepted cert, which is with respect to obstruction counts in some of the cases, actually just one case,

involving one of the January 6th rioters, because a count that many of those rioters have been charged with is a count that Donald Trump has also been charged with. Just to level set, because we're getting everyone used to all of the Washington lingo, which I thought, blessedly, I could leave aside when I left Washington. So we have in the Jack Smith DC case, there's

an appeal pending in the circuit court. There's also a cert petition to the Supreme Court that's the sort of leapfrogging

petition. So there's two things. And we're going to talk a little bit about that. Of course, we're talking about the process of the Supreme Court taking a case. So the petition for certiorari is to ask the Supreme Court to take it. And when they grant certiorari, which everyone calls cert, that's when they've decided to take it. But then in a completely separate case, but a criminal case,

growing out of a January 6th prosecution by the D.C. U.S. Attorney's Office. They're granted in that case. And so that's a case. And why are we talking about it? Because one of the charges overlaps with the charge against Donald Trump. And so everyone sort of focused on what are they going to say about what the government has to

because whatever they decide there presumably is going to apply to Donald Trump. So there's a lot of balls in the air. Am I getting that right? Yes. Apparently I didn't do it well enough, so then you redid it for me. So...

I will quarrel with overlaps. I will quarrel with overlaps, though, only because the overlap is only that the same statutory offense is charged. I think there are arguments for how they apply differently, but we'll

get into that. So let's launch. So I feel like, Mary, by the way, I feel like this is the equivalent of what they say when you're doing a trial, which is like, tell them what you're going to say, tell them what it is, and then tell them what you just told them. And it's funny, we don't really do that on this podcast because we just sort of race through. It's like, here's the 47 things you need to know this week. Especially last week. Wow. So

Let's get going. Yes, absolutely. So back to this issue of the immunity appeal. There's been so much discussion about this because Jack Smith did something really interesting, right? There was a favorable decision from Judge Tanya Chunkin rejecting the former president's claims of absolute immunity against criminal prosecution in any circumstance. So she didn't decide over

oh, you know, you might have immunity in a limited circumstance where you were claiming that what you're being charged with was actually within what's called the outer perimeter of your official acts. Mary, just since I'm busy asking all these stupid questions today and you're providing all the answers,

I know we keep on talking about outer perimeter as sort of a shorthand, but what exactly does that mean? Because I know we just jumped to the shorthand. What is outer perimeter? Well, it's really the shorthand for this test that was developed in a case called Nixon v. Fitzgerald, which was a civil case, and it really describes what

when a president has immunity from civil litigation. He doesn't have immunity for everything. He can't, you know, kill someone on Fifth Avenue and be immune because that would be completely- Hypothetically. Hypothetically, because that would be completely outside the scope of what a president is supposed to be doing.

But the Supreme Court said when acting within the outer perimeter of the president's official acts as president, that is something that at least with respect to civil liability, a president can be immune from. This is something we've talked about on previous episodes with Trevor Morrison, the former law school dean at NYU and a constitutional law professor. And you and I, Andrew, have talked about it, that in the civil arena, not criminal, in

Supreme Court has held that there is immunity for a former president for civil liability for acts taken within the outer perimeter of his official acts as president. And we talked last week or the week before about the D.C. Circuit's decision in

a civil case against Donald Trump brought on behalf of members of Congress and Capitol Police officers who were injured in the riots. They've sued Donald Trump based on his alleged responsibility for those. And the circuit

issued a 68-page ruling about how to apply this outer perimeter test. But what Judge Chutkan did that was very different is she said, you know, I'm not going to get to the outer perimeter test because I find, and we talked about this last week, there just is no absolute immunity for the president, not based on what's within the outer perimeter, not based on what's outside the outer perimeter. I mean, she said, I don't have to decide about outer perimeter. I'm just saying there's no immunity. And Mary Ann, you had sort of reminded us that she walked

through the text of the Constitution, that it wasn't there. She walked through the history, the structure, and she talked about even the rationale for why you would have civil immunity for this, which is you could be sued federally and state over and over again, and it would be such a— Dexatious litigation, yeah. Exactly, and it would be a real deterrent

to independent judgments and thinking, and there's no threshold for people to just bring these suits willy-nilly. And she said, "That just doesn't happen, at least at the federal criminal level. There has to be a grand jury indictment. There's double jeopardy, so you can only bring one of those cases. You can't. It's not repeated." And she basically said, "You know what?

having that criminal deterrent is actually a good thing, not a bad thing. So anyway, that's why she sort of had, she went big at saying, you know what, criminal immunity just doesn't apply in this situation. So that is what's in the DC circuit and what they're also seeking cert for. And remember-

Right. So it was Donald Trump who lost that. So it was Donald Trump who noted an appeal to the D.C. Circuit. And then what Jack Smith did is he came in last Monday and he said he filed in the D.C. Circuit a motion to expedite the appeal. But at the same time, he filed in the U.S. Supreme Court a petition to have the U.S. Supreme Court take the case directly and just leapfrog over the D.C. Circuit. And we teed this up last week, but because it's a bit complicated, I want to go back and recap.

So the D.C. Circuit granted Jack Smith's motion to expedite the appeal. Now, the appeal is taken by Donald Trump because Jack Smith prevailed before Judge Tutkin. But Jack Smith then said, move this faster, move it along. And the D.C. Circuit granted that request. So that means Donald Trump's opening brief is due on Saturday, December 23rd. And then it is Merry Christmas, Happy New Year, government. Your brief is due on December 30th.

And Trump, your reply brief is due on January 2nd. So that will be fully briefed in the circuit by January 2nd. So they could have oral argument to the extent that they're going to have oral argument. They could have it on the 3rd or 4th. I mean, it could be super fast. Do you think, Mary, that that puts a little bit of pressure on the Supreme Court to wait for the D.C. Circuit because they can see that they're

going to move very quickly on this, that this whole idea of leapfrogging may become sort of not irrelevant. The Supreme Court could still do it. But do you think it might lead them to be like, look, since they're moving so quickly, let's let them weigh in?

So I think that's certainly a possibility because the other thing that happened last week is that right after Jack Smith petitioned the Supreme Court for Sergio Rari or for cert, he had suggested that Mr. Trump have to file his response by this Monday, today, the day we are recording. And the court came back, the Supreme Court that is, and saying, well, we're not going to make it due on Monday, but we will make it due on Wednesday. So-

Donald Trump has to file his opposition. If he's going to oppose Supreme Court review, he has to file it by this Wednesday. And that's still much, much faster than a normal schedule for responding to cert petitions. And in fact, in many cert petitions, the respondent can even waive response and not even respond at all unless the court calls for a response immediately.

But here, the court almost immediately said, we want a response and we want it fast. We want it expedited. So you have both courts, and Jack Smith was up front. He told both courts exactly what he was doing. So you have both courts moving fast. Nevertheless, the circuit's moving faster because, again, the Supreme Court hasn't even decided whether to take the case, and they have their next confrontations.

which is normally when they decide what cases to take and which ones to deny, their next conference isn't actually till January 5th. Now, theoretically, they could schedule a special conference. They could make a decision earlier. But assuming they stick with that, as you just indicated, we will already have the D.C. Circuit appeal fully briefed before the Supreme Court even meets in conference. And that's where I think your point about

the Supreme Court may be thinking, well, hey, since this is fully briefed, we'll just wait and see what the circuit does. And then maybe we won't even have to take this case up. Yeah, I mean, you can be sure that the...

law clerks for the judges in the circuit and in the Supreme Court are going to have a very busy holiday season. Absolutely. Mary, I don't know about you, but I've done trials which have been over Thanksgiving and over the

Christmas, Hanukkah, New Year, it's holidays. And so, you know, while my heart goes out to all these people, it's like I've been there. It's like it's hideous where you like you run to like the Thanksgiving table, eat your turkey and then go back to your laptop to work. This was Trump v. Thompson, the case that where my organization co-counseled with the House General Counsel for the House Select Committee to get the documents that former President Trump was claiming executive privilege over. We briefed the circuit. It

briefing over Thanksgiving and the Supreme Court briefing over Christmas and New Year's. So absolutely been there, done that. But a lot of people, a lot of the reason that this seems so significant is, okay, how does this impact the timing of the March 4th trial date? And one of the things that may be a little complicated to get into today, we will probably come back to this, is the question of

Again, because Judge Chicken said there's no absolute immunity, didn't make a fallback finding. And even if there was immunity for conduct within the outer perimeter of a president's official acts, I'm finding that it was not within that outer perimeter. She did not make that kind of an alternate holding statement.

Jack Smith had asked her to, had suggested there's no immunity, but even if you think there is, the conduct alleged in the indictment is outside the outer perimeter of the president's official duties. She didn't make that alternate finding. In fact, she specifically said, I don't have to make it. It raises tricky constitutional issues about what is or is not within the outer perimeter, particularly things that involve speech.

and political speech, and the president's duty to take care that the laws be faithfully executed. So she didn't make that decision. So that means that if either the circuit or the U.S. Supreme Court were to determine that she's wrong on there being no absolute immunity, and instead she needs to apply this other test- The outer perimeter test. Exactly. They-

could remand for her to do it again. Now, they could, and Jack Smith will probably argue, there's no need to remand if you think that this outer perimeter test applies because you can look at the face of the indictment, you can look at the charge content, and you can rule that what we've charged is not within the outer perimeter of the president's official duties. So the Supreme Court could potentially or the circuit potentially go ahead and make their own ruling on that. But

typically when the Supreme Court or even the circuit says district court, you applied the wrong test, they send it back to do it again. Now I am not putting my thumb on the scale and saying that I think they're going to find that Judge Chutkan's ruling was wrong. I think she made a very strong ruling and I think it's going to be a very strong argument by Jack Smith in both the circuit and the Supreme Court if it ends up both places. But if they were to decide...

She needs to apply something like the out-of-perimeter test. I think there's a decent chance they'll send it back to her. And that probably would result in some delay because it's going to take time to even get that decision right, and then she'd have to deal with it. I'm going to now give you my theory on the automatic stay because that's what's causing the problem is that there's law –

not in this exact context of presidential immunity, but there's law in the double jeopardy and the arbitration context where while those issues are on appeal, where the court says there's an automatic stay. And that's what's in effect right now, where there's no

litigation going on in the district court. There's no jury selection. There are no motions being decided. There's lots and lots of issues that are before Judge Chutkan that are waiting but cannot be decided while the automatic stay is in effect. Now, the circuit could lift it. The Supreme Court could lift the automatic stay, and that would allow

the case to go forward, all of the sort of the mechanics, the things that need to get done in order to be ready for trial. And we talked a little bit, we alluded to this, that we both were a little surprised that Jack Smith wasn't more forward leaning on the automatic stay parameters. Here's my argument. In the context of double jeopardy or arbitration clauses, what the person is saying is, "I shouldn't be in court.

or an arbitration clause. This should not be in court. It's an arbitrable crime or offense. It's not for the Article III courts. It's for an arbitration award. So stop everything. When you're talking about presidential immunity for outer perimeter in a criminal case, that is ultimately whatever test the Supreme Court or the circuit says has to apply to

That is going to be a test that ultimately, I think, is going to be a jury question, not a judge question. I don't think it will be decided on the face of the indictment. No matter what, I think there will be something for a jury. There may be pieces in the indictment that they say go too far, but I think it is a fact issue for the jury properly instructed about what the test is. Maybe the test is no criminal charge.

immunity at all. Or it could be, yes, out of perimeter, but we're going to give a test for what that is, and a jury will decide it. Well, if a jury is deciding it, that is a very different issue than saying, this shouldn't even be in court. I shouldn't even be here. And so I think there's an argument that the automatic stay of everything is too broad.

in the context of this type of presidential immunity. And just to be clear, that has not been decided in the sense... The reason I thought that Jack should be making that argument and the courts can make it is that there isn't case law in this context as to the appropriateness of an automatic stay. So I don't...

know why you wouldn't make that argument. Anyway, I'm trotting this out to you first time, Mary, and I need your appellate pushback. I just don't see how immunity can be a jury issue because when you're saying you're immune, you're saying I shouldn't even have to go through a jury trial. I think there may be some factual findings that might need to be made, but those could be made still. It's ultimately a legal question, though, not a factual question about whether I think whether something's within the outer perimeter of the

president's official duties. See, I think it's what is it called mixed question of law and fact? Because I think there's a fact issue and a law issue. But yes, the law issue being what are the president's official duties, right? So I think that it's possible an evidentiary hearing would be necessary, but I think that would be in front of

the judge and not the jury. And I don't think we've ever seen before in the civil context, this go to a jury, whether it's because again, it's about immunity and you shouldn't even have to go to the jury. Just like on qualified immunity, you don't go to a jury to decide that. Yeah, but this is like super nerdy in the weeds. But in the civil context, you have something called summary judgment, which is that you have

discovery from both sides, and then you get to say there's no issue of fact and et cetera. We all agree on the fact that it's just illegal. Exactly. And so I think that's not something that exists in the criminal context. So I think there's an argument that what you would say is in an outer perimeter is here's the law, and then we're going to leave for you, jury, to decide

what actually happened here. Now, you could be right. This could just be a pure law issue, but I think that there would be some fact-finding. I think, though, in a criminal case, though, you could do it by diving into what the government intends to put on as evidence and what the charges are and try to, you know, determine it from there. At least that's certainly the way Jack Smith is arguing it. What's the downside of my argument, though? What's the downside of sort of, since it hasn't been decided, of saying, Judge...

you should relieve us of the automatic stay because there's a factual component the jury would have to decide. The other thing, by the way, that the court could do, leaving us all aside, is they could always just say,

We're ruling that there's no absolute immunity or there's no presidential immunity that precludes this case from going forward. So we're lifting the automatic stay opinion to follow. In other words, keep it moving. Yeah, yeah. My argument for why the stay shouldn't apply to anything other than the trial is that this is a criminal case and-

You're right. You know, I think there is some authority out there. You're right as to not to go to trial twice, not necessarily not to be put to any burden at all. And the interest in a criminal case, unlike a civil case, are so paramount. The public has an interest, too. So the court should be able to go ahead and be dealing with things. Preliminary to start trial, you just can't start trial until there's a decision. But anyway, there's so much there. OK, we're going to have to have a whole nother episode on this. Exactly. So you can nerd out. Yeah.

More prosecuting Donald Trump, 148 million in just a moment.

MSNBC's Lawrence O'Donnell. I have an obligation to find a way of telling this story that is fresh, that has angles that haven't been used in the course of the day, to bring my experience working in the Senate, working in journalism, to try to make sense of what has happened and help you make sense of what it means to you. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC.

So Mary, tell us why should we care about this other, the cert granted in this other criminal case dealing with obstruction?

Why should we care about that? Why are you and I focusing on that? Sure. And I think this is also something once the court starts having briefs filed, we can come back to in more detail because I know we don't have the time today because we have our special guest. But a lot of commentary I heard right after the Supreme Court accepted this case last week suggested that, oh, this is going to delay the Trump trial. And I think that's wrong. And that's where I really wanted to kind of correct the record. So what they took is they took

one of the rioters who'd been charged with obstruction of official proceeding, as well as a number of other charges, including assaults on police officers, the lower court, the district court, had actually said that federal law

offense of obstructing of official proceeding, that only applies where you're trying to actually obstruct sort of like tamper with a document or tamper with physical evidence. And it doesn't apply to this type of obstruction of the meeting of the joint session of Congress on January 6th. This was the only judge of something like 14 judges in DC who had said, you

obstruction of an official proceeding doesn't apply in this context. All the other judges had said that it did. This went up on an interlocutory appeal brought by the government because the district court had dismissed that charge. And that's where the government can take an interlocutory appeal. Not very many circumstances where they can, but they can in this circumstance. And this is where the circuit then ruled, no, district court, you got it wrong.

The obstruction offense does apply in these circumstances because it's a catch-all obstruction offense. Any type of obstruction of an official proceeding, we had an official proceeding. That's what happened here. That is now the issue that's up on appeal.

And so people say, well, Donald Trump is also charged with the obstruction of an official proceeding and conspiracy to obstruct an official proceeding. So don't we have to wait to see what the Supreme Court is going to do before he can go to trial? No. And there's several reasons. One, an obvious one is he's also charged with two other offenses, right, besides these. So obviously, the Supreme Court taking cert has nothing to do with those. But more

fundamentally as a matter of law, this is the kind of issue. This is not an immunity issue. This is not a double jeopardy issue. This is just something that if he were to be convicted of obstruction and the Supreme Court rules that it didn't apply to the January 6th rioters, he could make arguments that his conviction on that count should be vacated for similar reasons that the obstruction offense doesn't apply to his conduct. And he can do that after conviction.

If the opinion came down during trial, he could move mid-trial to dismiss those counts and make his arguments. This can all be handled in the ordinary course. There's no reason legally. And all the cases I've ever tried as a prosecutor, and probably you too, I've never seen a

defendant be able to say, I shouldn't have to go to trial because one of the crimes I'm charged with, this other guy who did this other thing has got that up on appeal. That just doesn't apply in criminal cases. Yeah. Plus, we don't know what the court's going to roll. I have to say my own view is I think it's great that the Supreme Court's going to take it and decide it. And frankly, the sooner the better. Yes. Because when I was in government, my view was always, hey, I want to know

If the law is different than what we think the current state of the law is, and there's going to be some new requirement or lesser requirement, I want to know sooner so I can have the jury correctly decided. I can have the agents develop the necessary proof for whatever it is the court says is required. So, you know, I think it's actually a good development. And ideally, it comes out before the trial starts or at least early on so that

the jury can be correctly instructed on the law. I don't think it'll come out before the trial starts unless the trial gets significantly delayed, right? See first discussion. Yes, exactly. The other point that you just raised on evidence is in this last point I'll make is there's also some pretty significant differences between

the indicted obstruction offense against Donald Trump in terms of what he was doing to obstruct and what a violent rioter was doing. And I think there's good reasons to argue, even if the court were to decide that this sort of violent obstruction doesn't

isn't covered by the statute. There's good reason to say that what Donald Trump was doing with the fraudulent elector scheme and so on and so forth does meet the requirements. But I'm with the D.C. Circuit that it's a catch-all, obstructing official proceeding. It applies here. Yeah, I mean, there's lots and lots of embedded issues there. We'll have a note to self, which is that we will have a

deeper dive as that goes forward as to the whole variety of issues that are there. And it'll be interesting to see what gets teased out as those papers come in as to what they say are all the issues. More prosecuting Donald Trump, 148 million in just a moment.

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Weeknights at 10 p.m. Eastern on MSNBC. So, Mary, we're so lucky. I know we have very few guests. We make these exceptions for these extraordinary people. And we're so lucky today to have Mike Gottlieb fresh off.

The victory that he and his two clients, Ruby Freeman and Shea Moss, had on Friday in a remarkable civil case. And we are so lucky to grab him from a well-earned vacation to join us. So, Mike, thank you so much for joining us. Thank you. Thanks for having me. So, Mike is somebody who, within the legal world, is very well-known, very distinguished lawyer.

clerking on the Supreme Court, working in the White House, eminent DOJ experience, is now a partner at Wilkie, but is here because of truly incredible, tenacious, important work in

representing Ruby Freeman and Shea Moss. And I guess the first question I'll start off and then turn it over to you, Mary, is how did this come about? How did you become sort of fortunate enough to represent these clients and be able to vindicate their rights before Judge Howell in the D.C. District Court?

Yeah, it's a long story. I'll give you the shorter version of it. But, you know, we at Wilkie are partners with a part of United to Protect Democracy, an arm of them called Law for Truth, and also a really outstanding attorney down in Atlanta named Von DeBose from the firm DeBose Miller. So we have a partnership that we handle this case in. And

This arm of Protect Democracy stood up a couple of years ago, and I was involved in conversations with some folks at Protect Democracy about that at the time because I had done a couple of different cases involving victims of disinformation. I'd started helping James Aliphantis and Comet Ping Pong when they had been targeted by InfoWars and the infamous Pizzagate scandal that wound up with the

guy was showing up to the pizza restaurant with an AR-15 looking for kids in a basement that didn't exist. And then later represented the family of Seth Rich, who was the murdered DNC staffer who, after he was dead, was blamed for being the person who leaked documents to WikiLeaks. And we wound up litigating that case here in DC for a couple of years before that was resolved. So

When Law for Truth stood up, we were trying to solve for a market failure in terms of, you know, you just didn't have public interest organizations that were devoted to protecting victims of disinformation, in part because the First Amendment sort of stands on the other side of that. And so a lot of the public interest organizations you might think about

weren't interested in taking those kinds of cases on. And then you didn't have the types of, you know, I think people didn't perceive you had the kinds of damages awards that would incentivize, you know, plaintiff's firms to take those cases on. So Law for Truth was formed over at Protect Democracy to try to provide first rate, high quality representation to people who become victims of disinformation in ways that were really distorting or harming our

our democracy. So for instance, in discussing this with you, you had said in terms of the market gap here for companies like Dominion,

that were able to sue Fox and get over $700 million. They have sufficient resources to be able to find counsel to bring that kind of case. This is sort of like the dirty secret of civil litigation is that it takes a war chest to be able to take these people on. And Dominion had those resources, but that's clearly not going to be the case with Ruby Freeman and Shea Moss and other people who are individuals.

who don't have that. So essentially, you're stepping into, you and others, just to be clear, we're stepping into the breach to try and deal with that issue. Yeah, that's exactly right. I mean, you know, a case like Dominion is a good example, you know, for a couple reasons. So a company or a high net worth individual likely has resources to, you know, pay some amount at least of litigation costs, if not all. But then also, if you have a company like Dominion or

like a celebrity or a billionaire, it's easier for a plaintiff's lawyer to sort of sketch out what's the damages award going to look like. It's going to be this, you know, a huge amount because it's tied to how much they earned in a particular year or how much projected business the company lost as a result of the defamation. So even if they don't want to pay counsel on an ongoing basis, there's a prospect of a contingency award for those kinds of firms. And so

What I think the idea behind Law for Truth was, let's see if we can provide really, really skilled lawyers at a public interest organization who can partner with people at firms and litigators out there to be able to represent the Ruby Freeman and Shea Mosses of the world, knowing that there may not be huge damages awards attached to those at the end of the day, but that, you know, the goal would be to try to sort

sort of move the law a little bit in the sense of convincing people that you don't need to have been rich in advance of getting defamed or having your name destroyed to collect a meaningful damages award at the end of the day. And I think that one of the things that's so significant also about this case, right, is that, like you say, oftentimes damages have been measured in defamation cases by, let's

lost income, lost business earnings. But there's a whole new kind of defamation going on that not only harms reputation, and it did in fact harm the reputation of Ruby Freeman and Shea Moss, and we can get into, you had an expert there to talk about that. But people...

People end up, like them, also suffering threats and intimidation. People end up sometimes having to relocate, and not just Ruby Freeman and Shayne Moss, but I've talked in my sort of day job, I do a lot of work against political violence, and I've spoken to people all over the country who've felt like they had to remove their kids from school or they had to

sell their house and move or relocate temporarily because of the threats that they're getting from the lies being told about them. So that feels to me also like it opened up a whole nother area of damages. And maybe that's part, I think, why the punitive damage awards here were so great. Do you have that feeling? And the jury to me gave a resounding verdict here about what they thought the damage was. Yeah. So I think...

It's a great question, Mary. I think there's a couple of different components to it. So the reputational award comes from the concept that you can suffer reputational harm. It's not like you're starting at, let's say your income is $100,000 a year. The whole thing we were challenging was the notion that that means that the only reputational harm you're capable of suffering is the loss of that $100,000 in income. And one of the things we were trying to do was to show

When you have your reputation, your character harmed in this way, you actually imagine that like you go down to zero and then you go way, way, way, way, way lower than that because you've essentially become a celebrity with none of the benefits of being a celebrity. Right. For all the wrong reasons. Right. You need security, but you can't afford to pay for it. You're the person who needs the ability to fly on a private jet so that you don't have to go through an airport. But of course you can't. So all the things that, you know,

celebrities have to deal with when they can't walk down the street without being noticed, except you have no goodwill attached to that in the communities that really know and think about you. So that was one component of it. And I'm happy to talk about our amazing expert, Dr. Ashley Humphries, who's a professor at Kellogg and Medill at Northwestern. And she's done this in a number of cases now. This is, you know... Including E. Jean Carroll, right? Yeah, we actually... She actually worked...

with us on the SAP Rich cases as well before that. And the concept being, don't measure harm to reputation by lost income, measure it as cost of repair. Think of it as, and the example that we try to give to the jury is, if somebody came and burned down your house, you want to know how much would it cost to rebuild it?

And, you know, if the house just burns down, that's one thing. But what if they left a bunch of hazardous materials in the foundation of your home and under the ground of your home and you can't rebuild it? You got to kind of start over from scratch. So that's what Ashley Humphries did. On the punitives, I mean, it was a loud and clear message from the jury. And we wanted to send...

a signal to other people out there that are thinking about doing this. We've got elections coming up and you have situations with people singling out members of school boards over books and singling out people in post offices. And we wanted to send a message to people out there that there's a path for you to recover and hold people accountable and to send a message to the folks who are thinking about taking advantage of people like that, that you may pay a pretty steep cost for this if you do it.

Mike, one of the things that happened, I think, at the end of the first day of the trial was the defendant, Rudy Giuliani, making statements outside of court. When I testify, you get the whole story and it will be definitively clear that what I said was true and that whatever happened to them, which is it's unfortunate if other people overreacted, but everything I said about them is true.

Of course I don't regret it. I told the truth. They were engaged in changing votes. Were you able to use those statements? I have to say, as just a listener, it was both believable and unbelievable that he would be making those statements, which seemed to me to be a continued defamation of your client. And were you able to bring that into the case? We were. Rudy Giuliani did not testify.

testify after saying he was going to testify. As part of that, instead of his testimony, we were able to get an agreement that we could admit certain pieces of evidence that I would have very happily used in cross-examining him. That was one of the pieces. And so we played the video of that statement to the jury in closing arguments in the first, I think, two minutes of the closing. We played that video to make the point

to the jury because when you're thinking about punitive damages, you're thinking about the ongoing nature of the harm and the egregiousness of the harm and deterrence. And so the message to the jury was, he's telling you he's going to keep doing this and you should believe him when he tells you that he's going to keep doing it. Mike, can I ask you a follow-up that sort of relates to, it's both backward looking to rulings by Judge Howell

that got you to where sort of what the instructions were to the jury as to what was at issue and what wasn't, but also looking forward to how you're going to essentially try and collect on this, which is, as I understand it, Judge Howell gave you all sorts of rulings based on Rudy Giuliani's contemptuous conduct because he wasn't participating in discovery. He wasn't giving you

information that he was required to. You were giving him information, but he was not participating, so there were all sorts of rulings that she made. But the one thing she didn't do was actually hold him in contempt in a sense of that he could go to jail. I was wondering, both that history may be interesting to people as to what instructions were given to the jury, but going forward,

Is that something that is still on the table if he continues to hide assets? You now have a judgment and you're entitled to enforce it. So I was wondering how those remedies could work. Yeah, it's a good question, Andrew. So it was such a monumental decision

task to get to the default judgment ruling because it required just this relentless, tedious effort to demonstrate that he hadn't preserved records and to show by going to these other third parties and getting discovery from them that, "See, he's not producing stuff to them because we've got this email from Christina Bob or this email from Bernie Carrick." To even get there,

We had to subpoena those people, serve them when they were evading service, litigate motions, practice in all different courts just to get basic documents from them. So once we got to that point of asking for relief, I think, you know, my sense of where Judge Howell was and her orders and her comments from the bench was like, you guys are asking me for a default judgment. Isn't that really the right outcome here rather than some kind of a contempt holding where we're playing the same game over and over again to get him to

and track down and give you guys documents that he's made clear he's just not going to hand over. So that's kind of how we got to where we were, I think. I think the court much preferred to

go to a resolution that would speed the case along towards a resolution rather than prolonging it, as was my sense. As for now and going forward, we want to get our judgment finalized so we can go start enforcing it. We're in the process of doing that today. And we'll be filing a new action

against Mr. Giuliani that'll be seeking injunctive relief given that he's both continued to defame our clients and indicated that he intends to keep defaming our clients. Now that we have a judgment

We'll file a new sort of separate action seeking injunctive release to stop him from doing that. And obviously, if you obtain that and he violates that, then we're in contempt, right? Which could be civilly prosecuted or even criminally prosecuted. Yeah, and the other component of that that's important, Mary, is that if we have that injunction, of course, under the federal rules, that'll be binding on

his agents. And it also is something that can be taken around to third parties, to those third parties to say, if you participate in this, you may have to answer for it as well. Yes. No, that's an excellent decision, I think, to move forward with that. Okay. I know we're wrapping up our time here, but we cannot let you go without asking what I think probably so many people are thinking about, which is that Donald Trump restated so many of the

Rudy Giuliani made, and he was not a defendant in this case. Can you explain why that might be and whether there's an intent at some point to potentially sue Donald Trump? Yeah, sure. And I get this question, not just me, our whole team. And I should say, by the way, our team at Wilkie that worked on those cases is phenomenal across a couple different offices and

the team at Protect Democracy as well. You're here having me on and complimenting me, but this was an amazing team effort and the whole team deserves recognition for each aspect of the strategy, which I could never have done by myself.

So as for your question that we all get asked, I get a lot of voicemails from concerned citizens reminding me that Donald Trump could be sued. And to those people listening to this, thank you for your messages and reminders. It is, as you all know, complicated by a number of different factors. First of all, any new defendant or any defendant that you want to bring into a suit, you got to have personal jurisdiction over them and you have to be able to satisfy any requirements. And then when you have

somebody who was the president of the United States at the time of... I remember that sort of the key actions in our case were in December of 2020 and then into January of 2021. And when you have somebody who is president of the United States at that time, there are considerations of immunity that go into it. And so I think

The feeling at the time was we had a really good selection of defendants that we thought we could move forward with expeditiously with the defendants who we put originally in the complaint. It wasn't just Rudy Giuliani. There were others that wound up settling out. And our goal was to try to build a case that could move quickly forward.

to a judgment. And I believe we accomplished that goal. Meanwhile, we have now a judgment and a ruling that Donald Trump and the Trump campaign were co-conspirators with Rudy Giuliani in everything that he did to defame and inflict emotional distress on our clients. And that's worth something significant in my view. And then of course, former president has continued to say things about our clients over the course of the past year. And

Every time he does that, there's a new statute of limitations that begins to run and other options that become available to Ms. Freeman and Ms. Moss and others that he may be looping into his comments to take legal action. So I would say all options are on the table. Right, right. But yes, to be continued. Mike, I want to thank you so much for joining us, especially on your very well-deserved vacations.

It's nice to know that even on vacation, not only are you doing this, but you're actually moving the case forward. So congratulations to you and to your team. And to your clients, really. I feel so happy for Ruby Freeman and Shea Moss. It will never make up, really, for what they've been through. But hey, it will help a lot if you start executing on that judgment.

Yeah. And to me, it's very much like E. Jean Carroll. It's these women who are tenacious and willing to stand up for their rights and to see that justice is done. I know with respect to both of your clients, they...

or they'll be certainly called in any criminal case in Georgia and D.C. It's just a remarkable result in and of itself, regardless of the criminal matter. And so congratulations. You and your team should be incredibly proud of the work you did. Thank you so much, Mike. Oh, thanks. It's been a pleasure. I love the show. So thanks for having me on. Thank you.

If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.

The show is produced by Vicky Virgulina, who is a new addition to our podcast. Welcome, Vicky. Also, Jessica Schrecker and Ivy Green. The audio engineer is Katherine Anderson. Our head of audio production is Bryson Barnes. The senior producer for this show is Alicia Conley. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.

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