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Hello, and welcome to another emergency episode of Prosecuting Donald Trump. Well, Mary, I think we just did an episode yesterday morning. Almost 24 hours ago, exactly. Yeah, but if you had said 24 days ago, I would have said, yeah, that's about right, because that's what it feels like, and maybe in, like, dog years. Right. And I think this could be a little bit of a rough episode on my side, because...
I was on MSNBC from, what, I think 11 a.m. till 11 p.m. Thank God my dog has a really good bladder. Because I was supposed to be able to go home and walk him and do all this great stuff. So I'm going to probably get a lot of comments about how I'm treating him. But he seems no worse for the wear, unlike his...
Well, it was an important day, so thank you for your service. Yes, it was a very important day. Yes. Yes. So anyway, Mary, I'm going to definitely not be interrupting you today because I'm going to be just bleary. So anyway, obviously we're back because we were talking a lot about the indictment, what we expected.
And now we actually, in the last 24 hours, have the indictment. We have...
short press conference from Jack Smith, and we also have who the assigned judge and magistrate are. So we're probably going to spend most of our time talking about the indictment, what it means to us, things that we observed. And then I'd really like to talk a lot about Aileen Cannon. We're going to discuss at least
what I think is the way in which she was chosen, and then what, if anything, the government can and/or should do at this point. But I think probably before we start, it's probably worth just noting that Donald Trump, while of course he's presumed innocent, has not missed a beat in attacking Jack Smith,
I'm no stranger to that and have obviously seen it with respect to many other people, but also with respect to my former boss, Bob Mueller. With respect to me, it's not pleasant, but at some point you really view it as a badge of honor more than anything else. But Mary...
What did you make of the indictment? This is really great because, you know, we've given it actually a chance to talk to each other about it. All yesterday when I was on the air, I was waiting for this. Yeah. I will say it was stronger and more devastating than even I predicted. It filled in a lot of the blanks, sort of the unknowns that
The two of us and others have speculated about, and in particular, I'm talking about Donald Trump's own knowledge and involvement in not only taking the boxes from the White House, but going through the boxes and reviewing classified information, making decisions about what boxes he was going to put back in the storage room and what boxes he was going to conceal. And I'm saying boxes, but really what I mean is boxes.
classified information, classified documents in those boxes, which he was going to keep for himself and conceal from the government, even when there was a grand jury subpoena for all classified information in his possession. And his involvement personally in a
obstructing justice and lying to his own attorneys and trying to corruptly persuade his own attorneys that they should not comply with the grand jury subpoena. So to me, it was remarkable in the strength of the assuming, of course, facts and evidence to prove every allegation in the indictment, which is what we have to assume because Department of Justice standards require that.
The strength of that evidence, as it is alleged in the indictment, is extremely strong. I think the other thing that struck me is the significance of the 31 documents that are the basis of the 31 charges of unlawful retention of national defense information. We have talked about the difficulties of
the government in going to trial in a case involving the mishandling of classified information because you necessarily, to prove your case, have to prove that it's really national defense information, the disclosure of which could cause serious harm to national security. And these documents, granted we only have a brief description, we are talking about
We're talking about highly classified. Most of them are top secret. We're talking about the U.S. weapons and defense capabilities as well as defense and weapons capabilities of other foreign governments. We're talking about the U.S.'s nuclear capabilities. We're talking about U.S. vulnerabilities.
And we're talking about potential retaliation plans if there were to be attacks. So the fact that the U.S. intelligence community agreed that these 31 documents could be the basis for charges, I think to me says a couple of things. One, that the U.S. intelligence community feels very, very, very strongly about the threat to national security from former President Trump's actions.
And that accountability and holding him responsible is important enough to lean a little bit forward in terms of which documents they would clear for use at trial. And I think it also could mean that they think the information is already so compromised in those particular documents that
that they can be used at trial because they don't know to whom the classified information has been shared. And they've maybe already had to change up their own plans and things like that based on those documents. And those will all be things that'll get fleshed out in the coming months. But, you know, those are some initial reactions. And there's another thing I want to mention too, but I've been talking a long time. And that is, I thought it was really brilliant of Jack Smith to include
in a couple of different places, Donald Trump's own statements, both before he was the president and after he was president, about the importance of securing our national security. And in particular, in 2018, when he was the president, he said that as the commander in chief, he had a unique constitutional responsibility to protect the nation's classified information, including by controlling access to it. I mean,
He is well aware of the importance of keeping these things secret. These are his own words when for his own political purposes he wanted to say these types of things. And I think that that would correlate probably when he was talking about stripping some former officials like the former CIA director of their clearances.
And he made those statements. And I think that was really, those are important things to include in this indictment to show his knowledge and his intent in determining, I'm just going to keep these materials, notwithstanding that the government has a right to them, they're classified and should have them back. Wow. It's a lot of reflections. It is. And, you know, it's so interesting. And I can't tell if this is because
you and I have such similar work experiences in general, in terms of both criminal and national security, that I had such a similar take to you. And so one thing I was going to do is first maybe do it in a slightly different order, but I would point people to pages 28 through 33 of the indictment, which is where the 31...
are described by Jack Smith, obviously in the indictment, and it's chilling. And so if somebody wants to sort of quickly see what Mary's talking about, I had the same sort of jaw-dropping feeling
view when I saw this, and I had the exact same reaction, which was, how in God's green earth did the intelligence community clear this? I mean, the last time I saw clearance like this was for the two Mueller-Russian indictments, where, without getting into the inside specifics,
People on our team did a yeoman's job of getting that cleared and through with approval for the intelligence community, because this can't just be done by Jack Smith. There are a whole series of agencies with an alphabet soup of acronyms that have to approve doing this. And it's a wide range of agencies.
And they're listed in the indictment, too, at least some of them, right? Department of Defense, CIA, National Geospatial Intelligence Agency, everything. So there's an enormous—just looking at the classification markings, it's top secret, special handling. There's even redacted codes, meaning that it's so compartmented that they don't even want to reveal to the public the particular—
compartmented program within the top secret classification. But there's a reason for that. For instance, count five.
Document dated June 2020 concerning nuclear capabilities of a foreign country. Then you go forward. There's 19 on page 31. Updated document concerning nuclear weaponry of the United States. Over and over again, military operations against United States forces. Yes. Military capabilities of a foreign country. Yes.
Foreign country support of terrorist acts against United States interests, military capabilities of foreign countries, regional military activity of a foreign country, over and over again. And not only is it chilling that this is, quote, stored
in a beach resort, which, by the way, the indictment does a really great job of saying, by the way, if you think these are under a lock and key in a storage room, they dispel that because they go on chapter and verse about how this was not under lock and key and it was open access to myriad people. And Mar-a-Lago is a target of foreign adversaries. And when you read these 31 documents, and by the way, this is a subset of
of what was there. You can tell that from the number of documents that were found versus the number of documents that are charged. Even this subset is a honeypot
for foreign adversaries in terms of wanting access to get this. So again, I had the same reaction that this was so much more devastating in terms of specifics and to see it in black and white is, I mean, last night I was pretty emotional on TV about what it was.
means to our intelligence capabilities. And I kept on thinking about Robert Mueller when he was head of the FBI and how focused he was and the agents were on making sure that the country was safe and that there would never be another 9-11.
That's what these documents are about. That's right. And I think a lot of people, you know, if you've never been part of that world that we were part of, Andrew, and you didn't sit through those morning briefings with the FBI director going over the president's daily brief, the intelligence documents of the day, which were about an inch thick every day.
involves so many things that never make it out into public, but that our national security community worries about and responds to 24/7. I mean, for me, same as you, like this just takes me back to sitting in that situation room hour after hour and talking with our national security agencies about how to respond to various threats. And you know, one of the things that's been going on, I mean, we're just now seeing this in the indictment,
But for the past year or more at this point, almost two years, our –
intelligence community has been having to do the damage control, right? Having to talk to our allies and explain to them what happened and what we're doing to mitigate any threats and have had to review our own intelligence collection programs to determine, you know, what might be compromised and certainly what human assets might be compromised. So it's really just pretty incredible. And like, I think you said, jaw dropping to read through what's in here.
So the other thing I'd point people to is paragraphs 54 and 55, which I think are my two sort of favorite paragraphs. And they go to the second thing that you were talking about, Mary, which is really about the obstruction conduct. And here you really get the sense of how important it was to gain access to Mr. Corcoran and what he had to say. So there's sort of two points about that, which is,
This proof really doesn't come from FBI agents. The heart of this indictment and the proof that's recounted is Donald Trump's own statements, as you said, Mary, employees'
at Mar-a-Lago, employees one and two, who have clearly given evidence and also have text messages contemporaneously, and attorneys one, two, and three. And if you look at paragraphs 54 and 55, they make it plain as day that the former president of the United States, as he has done with Don McGahn, Pat Cipollone,
And Michael Cohen, all lawyers, he asked these lawyers to commit a crime. He said, why can't we just lie to the Department of Justice and tell them that we returned everything? Or if we can't do that, that's plan A.
Plan B, why can't we just get rid of things? My favorite is a reference to Hillary Clinton in paragraph 55, which is, why can't you do for me what Hillary Clinton's lawyer did for her? And why don't you get rid of these? And then I won't get in trouble. Leathers, why don't you do my dirty work? My...
reference, which I think got lost last night, was to Beckett and why can't someone rid me of this meddlesome priest? This is basically just like, please do this for me. Don McGahn said no. Pat Cipollone said no. Former White House counsels. Evan Corcoran clearly said no. That's right.
And he actually looks really good in this because he said no. And that's the reason the boxes had to be moved, because plan C was Evan Corcoran saying, no, I have to respond to the subpoena. I have to do a search and I have to say we returned everything over. So you can see Donald Trump's wheels turning, going, OK, OK.
Give me a moment. With Walt Nauta and me, we're going to just move the boxes. And by the way, this goes to the proof, which is it's not just Evan Corcoran. The people who are doing all of this text each other about what's going on so that you have witnesses and texts. So it's really devastating. And those contemporaneous texts, Andrew, right? Those are so important because...
you know, juries sometimes are skeptical of people's testimony at a trial and that being able to show that, no, no, no, I'm not just saying this now. Here's the text from in real time when we were talking about moving boxes all over the place, right? And the fact that, you know, the number of boxes and the other thing that's so important here is we actually have specific timeframes that had to have come from the surveillance tapes, right? Like by the minute of
when Walt Nauta went into the storage room, when he came out, how many boxes he came out with, and then how many went back in. And a whole lot more boxes came out of that storage unit than went back into that storage unit. Absolutely. I mean, it is really devastating, especially because in cases where you are charging a CEO, a senior executive, the defense is, "I don't know what underlings were doing. I'm not in the weeds.
whatever they were doing, you know, maybe it was right, maybe it was wrong. I'm not in favor of criminality, blah, blah, blah, blah, blah. But here, this is the opposite. You've got a micromanager par excellence and you've got contemporaneous documentation that Donald Trump himself wrote
was orchestrating it and doing it, including witnesses, and we talked about contemporaneous texts about this and surveillance tapes. So in terms of the details, in terms of looking at this as a criminal prosecutor or as a criminal defense lawyer, this is a really...
overwhelming case, at least as set out in the indictment. I should also point out, this is a speaking indictment, but you do not put in all of your proof. I mean, it would just be a tome. So obviously, this
is going to be what they view as the most important evidence, but it is certainly not all of the evidence. And even this is very strong. Before we move on, there was something that you and I speculated about over the last few days, which would, would there be any dissemination charges? Because, you know, even before reading the indictment, we'd heard about
the potentially showing classified information to the two people working on Mark Meadows' autobiography and some other, you know, different reporting about Donald Trump's sharing. Now, this indictment does go into detail about that particular incident up at Bedminster, where he appeared to be referring to a secret document in his hand about potential attack plans against what's
called in the indictment, Foreign Country A, I think, but which has otherwise been reported to be Iran. And he's speaking very casually. See, look at this. Look at this right here. And then he's saying, but it's secret. I can't really share it. By the way, can I interrupt you? Even though I said I wasn't going to interrupt you. My favorite part of that, and this is paragraph 34 for people who are following at home, on pages 15 and 16, when Donald Trump is reminded that
about whether you could declassify. And he's like, oh, it's true. I can't now that I'm no longer the president, I can't declassify it. And he says, no, now I can't, you know, but this is still a secret. The staffer laughs and says, now we have a problem. Right, right. Which is...
No kidding. Yeah. You just talked about the contents of a secret document to people not cleared and with no need to know. So that's in there. Then there's another allegation about sharing a classified document, including some mapping, with the leader of a PAC, a political action committee, which is really –
And clearly that person is cooperating as well. Yes, that's right. But we don't see a dissemination count. And I think, you know, we talked about the other day, you know, these things could be the basis for another count or they could just be part of the narrative and explaining about,
first of all, part of the decision-making and why it's important to charge this, because we now know that there has been sharing, but also part of telling the story of the why. Because I wouldn't say motive here is the clearest that it possibly could be,
But what certainly appears is this is a man who just wanted to be able to have these documents and show them to people or talk about them when he thought it served his purposes to do so. Now, there could be things more nefarious than that. But even just this shows, again, I go back to what he said himself as president about his constitutional responsibility to protect. And that was just out the window. More prosecuting Donald Trump. 37 felony counts in just a moment.
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That's 50% off at filtereasy.com slash podcast. So one thing to note about the dissemination paragraphs is both instances involve dissemination in Bedminster in New Jersey. And that's probably a really good segue because if those were to be charged as dissemination, those...
there's an argument that those- Should be in New Jersey. Exactly, that they wouldn't be in Florida. The dissemination charge would be in New Jersey. You can understand why the government didn't want to
Gild the Lily by having multiple charges in multiple jurisdictions. As we talked about 1512, one of the obstruction counts could have been brought in DC, but much of the conduct could clearly be brought in Florida, which is the decision that they made.
And so the venue for the dissemination would be much harder to justify as in Florida. That may be a reason why it's not actually charged, but it is clearly part of this scheme. So this is in Florida and one of the key things that happened, and we went from sort of
sort of very positive views, I think both of us shared with respect to the indictment, just how much stronger it is than we anticipated in terms of the level of detail and the nature of the documents. But something bad happened from the government's perspective, I would assume, which is that Aileen Cannon said,
is the assigned judge. And I can tell you what I understand about how that happened. This may be wrong. So big caveat. And I think we probably will hear more about this.
You know, the first thought was, gee, was this somehow related to her because of her prior work on the case? And that's not my understanding of what happened. Also, it would be hard to relate a criminal case, which this is, to what was before Judge Aileen Cannon, which was a civil case. That would not really be usual. And there is a wheel in Florida, which cases are randomly assigned, but...
It's not the case that all of the judges within the district would be in that wheel. So one of the things that was checked off by the government was essentially, where does this case arise? And they checked off the box, West Palm Beach. And that's correct. That's right. So this isn't one where you get to play, oh, what would I prefer to check off? This is, you have to check off the facts. What happened?
And so my understanding is that the wheel for the judges who would sit within West Palm Beach or Fort Pierce, that sort of adjacent town, is sort of three or four, meaning the denominator is quite small. The other thing that could make that denominator small is, and this is based on people's
who had been in the office there and how it works, is that you indicate on the cover sheet when you're filing a case how long the trial you anticipate how long that will be. Here they had said at least 21 days. That's considered, I think, a Category 4 trial.
case because of different categories of time. And so the wheel might be even smaller depending on judges availability and who's in the wheel for a longer case. So for instance, if you're a senior judge,
You can say, well, I'm only willing to sit on a case. Senior judges have ruled the roost because they're all sort of there voluntarily. But they get to say I'm in the wheel, but not for criminal cases or only for criminal cases. They can opt out. Exactly. Or only for a week-long case, et cetera. So the wheel might have been smaller. So it may not have been that unusual to...
to draw Eileen Cannon. There's people saying, how could that possibly be? The denominator may have been so small that it's just not that unforeseen. Also, I'm told that the magistrate judge then is sort of automatically connected. So this is a judge-magistrate combination that works together frequently. And so if you get one, you get the other. Because initially I was thinking, what are the odds that it would be the exact same judge and the exact same magistrate who had had the case previously? Right.
Obviously, before I turn back over to you to sort of say what are the options here for the government, I just want to remind people that Ayling Cannon is the judge who was reversed not once, but twice by the 11th Circuit in fairly scathing language. I mean, it wasn't just you were wrong once. You were wrong on so many different levels, factually,
legally. She also, I think, was fairly rude and peremptory to the special master. If you remember, the special master was a judge in the Eastern District of New York, a judge in the Eastern District. This was a fellow district court judge. With a lot of experience, way more than Aileen Cannon. Much more. As a matter of fact, that judge sat on the FISA court. So, I mean,
Very well understood the importance and significance of the classified information at issue, that judge. Right. And it was, to me, my mind, I hate to be so disparaging, but it was like, okay, now we have a real judge. And now we have somebody who just came off as way, way, way out of her league at best. There are other ways to think of this, but I'll leave that aside. So Mary, what, if anything, are the government's options at this point?
Yeah, so the government can just, you know, stick with Judge Cannon and make its legal arguments and make its arguments for why this needs to get to trial quickly and be prepared to go in on Tuesday and say, here's a proposed protective order so that we can start sharing discovery right away. And, you know, here's the timeline we think it will take for motions practice and a trial and request all of that and hope that she complies.
Or they could try to seek her recusal. They could ask her to voluntarily recuse, or they could ask her to recuse based on some law in the 11th Circuit where a judge has engaged in any kind of activity or action or opinions that show such a bias toward justice.
one party or the other, that they should be recused. And there is some case law, including in the 11th Circuit, which is the Court of Appeals that Judge Cannon's rulings were appealed to in the past. There is some favorable case law there for requiring a judge to recuse when they have shown that type of bias. I will say in my own experience, particularly litigating in D.C.,
It was very rare that that kind of a motion would be successful because if a judge says they can be fair and impartial, usually appellate judges will respect that. However, it does appear that there is an opening in the 11th Circuit to make this argument. And the real question in my mind is, will the government do that?
Or will the government just proceed along with this judge, again, as part of just being sort of the straight shooters, right? They brought this case in Florida where venue was solid. They checked the box for West Palm Beach because that's actually where the conduct occurred. So they weren't going to try to game it out and check the box for Miami. They just, in truth—
And in candor, check the box for West Palm Beach. They had to know that meant only among four judges as possibilities, and she was one of them. And they took that risk, and perhaps they're willing to go forward. But that does come with its own risks because the judge will control the schedule.
And that means the judge could say, I'm sorry, Mr. Smith, but I'm not going to schedule this case for trial before 2025. I mean, she could do that. Now, there would be potential remedies for that as well. The government could seek a writ of mandamus, which is essentially saying that the judge is so clearly— Boy, that's hard. That's even harder. Exactly. I did that once. One of the first things I did in general cause, I had to mandamus a judge—
It was really scary, but we actually won. But the standard for mandamus is really tough. And it's usually on an obviously wrong legal issue, not a scheduling issue, right? Not a discretionary call. Right. So I was going to say one thing they might do is essentially see how it goes and try and pick their battles and maybe create a record for recusal down the road if she continues to
make rulings that are as egregious legally and factually as the ones that led to her reversal twice before. But I agree with you, the biggest risk is the scheduling of the trial date. And some people have talked about whether she could essentially overrule Beryl Howell on the attorney-client issue.
privilege issue that led to Mr. Corcoran having to testify. And I think for those people worried about that, the answer is no. She could try, but that is reversible. And that is law of the case. And by the way, Beryl Howell on
on this. It's not only been affirmed by the D.C. Circuit, to our understanding, but that is on such strong footing. And even if that decision were wrong, the government relied on it in good faith so that they'd have a series of arguments. So for those people worried about that, I think that is something that Aileen Cannon could do, and she would be reversed. I agree. And in many ways, if she did it, it would just be sort of more fodder, no pun intended, to the
remove her from the case. We now know essentially why Judge Howell ruled that the crime fraud exception applies because we're reading it in the indictment. We're reading how Trump tried to use his attorneys to obstruct justice. And that's pretty squarely within the crime fraud exception to the attorney client privilege.
So, Mary, you know, last time I said, I think we'll probably be talking in a few days. It's funny because time is morphed in such ways. So it feels like the last time I talked to you was weeks ago. But I think we're going to be doing this early next week, which is great because the
scheduled court appearances on Tuesday, and we'll be able to discuss that. I think we'll know more because the government has clearly signaled from Jack Smith's brief press conference, he did say that he's going to seek a speedy trial. So we'll get some indication about a couple things. One, whether Judge Cannon is going to be keeping the case to what she says about scheduling a
will be interesting. There'll be a lot more to report on Tuesday absent.
are doing yet another emergency. At some point, we're only emergencies. We don't even have regularly scheduled anymore. This is like the new Trump world. In some ways, this was exactly what it was like during the Trump administration, where basically every day seemed like an emergency because there was one crisis du jour. He is certainly keeping us busy. But let's just go back to something positive, which is
The indictment here shows just such extraordinary work, both before Jack Smith got on the case, an incredible amount of work to compile this in a really short amount of time, just so people understand when I looked at this, the idea that this was done in a matter of six to seven months. This takes an enormous, enormous amount of work. And it also, uh,
is a really good harbinger of, I think, things to come with respect to the January 6th case and how meticulous Jack Smith and his team are and how they build a case. In other words, there's sort of enormous variety of sources of evidence that you see in this indictment. For those people who don't want to read this themselves, our own
Ali Velshi is going to be doing a dramatic reading of the indictment. So if those people want to follow along that way, you'll be able to listen to the indictment. And as many people said yesterday, it is really worth reading, whether you are an old-fashioned reader as I am, or whether you're a new-fashioned
audio reader and you want to listen to the indictment, I think that's just going to be great. It's really invaluable. And for those people worried about whether it's too
legalese. By the way, for our audience that is willing to listen to us, Mary, I doubt that's going to be a problem. But for those people who are a little wary, I can tell you it's really a great read. It is. And I think this is one of the things that's so important, you know, to have transparency and accessibility in legal documents like this so that everyone, not just lawyers, can understand it. And it really spells it out. It's tight. You
It's clean. It's clear. It's persuasive. And it's not political. It's just the facts. And the facts are devastating. Perfect note to end on. Talk to you next week. Have a really great rest of your weekend, Mary. To you, too.
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 could email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.
The senior producer for the show is Alicia Conley. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. Our audio engineer is Cedric Wilson. Jim 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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