A Flurry of Motions
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Hi, welcome back to Prosecuting Donald Trump. It is Tuesday, February 27th. I'm Andrew Weissman, and I'm here with Mary McCord. Hi, Mary. Hi, Andrew. Before we begin today, I just have to give you a huge congratulations to you and Melissa Murray for putting out your book today, available, I guess, everywhere. And it's pretty... Wherever you get your books. Yeah, wherever you get your books. It's very pertinent to the things we talk about every week, isn't it? It is. It is.

What's it called? Tell everybody what it's called. Okay. This is like, okay, do the promotional part. Okay. So it's called The Trump Indictments, The Historic Charging Documents with Commentary. And what's in here are...

You can actually see all of the language of the four indictments, but you might be going, well, who cares? I can see that online. What we did is a number of things. We annotated all of them to explain legal choices, wording, when there are names that are not included in the indictment where it says unindicted co-conspirator or witness one. You can go to all the footnotes on the same page, list exactly who those people are. So it's really trying to make it as understandable, transparent,

to non-lawyers or even lawyers who are not criminal prosecutors like we were, Mary. And then there's an introduction to each of the indictments and there's an overarching introduction I'm actually very proud of because

We tried to situate the E-indictments both in terms of the Department of Justice practices and other cases that have been brought, as well as trying to situate them in terms of globally, other countries. And we have a whole litany of the countries and examples of other leaders that were held to account. And there's a cast of characters and a timeline. So it's really trying to make this understandable.

Like as a case comes up and we have a case that's now scheduled, it's going to go March 25th. You can keep this and sort of delve into it. And in many ways, it's sort of a book form of,

of our podcast, but in one spot so that you can sort of see everything. I think our podcast delves deeper into individual things as they come up. And that obviously is going to lead to the obvious next question that I think listeners would have, which is, who's this Melissa Murray and why is it not Mary McCord? Which is a very, very, very good question. And the answer is, is that Melissa Murray is my colleague at NYU and she was approached by the podcast

publisher about doing this kind of book. And then she asked me to participate. So that's the genesis of the book. And you can tell I'm going through this because I feel guilty. I forgive you, Andrew. I forgive you, Andrew. Exactly. You're forgiven. Yes. I'll write a book without you someday, too. Right. Exactly. Ding. Sorry. Anyway, the idea is to really try and just like what we're trying to do here, it's really similar. We're trying to make this understandable and

And now I'm going to segue. The D.C. trial, which we're still waiting to see what the Supreme Court will do, but the sort of rumor mill of terms of why it's taken them so long is that they're going to deny a stay, deny cert, and maybe one or two justices may be writing a dissent from that denial. And so that might be taking a little time. Yeah.

Or even a limiting kind of a limiting opinion, like we talked about last week. Yes, exactly. And that's not required. In other words, you could if you have five votes to sort of say don't take the case, they could go forward and not wait. But it wouldn't really be, I don't know, polite. I mean, it's happened, but it's the better courses, I think, to wait. But anyway, my point is that there will be another case, the D.C. case, and the book would be sort of useful for that as well.

But that was my effort to try and segue to what we're here for. And, you know, as we say, Mary, enough about me, which, by the way, those are words that you never, ever hear. Right. I mean, I mean, they get cut. You say them like multiple times every recording session and the producer cuts them. Yeah.

Yeah, it's outrageous that she does that because I try to be so self-effacing. But, you know, Vicky and Jessica are just ruthless in sort of making sure that my reputation is, you know, not raised, but is lowered. OK, OK. I think can we just say the silly part of the story?

podcast is now over and we're going to now focus on the substance. OK, before we just actually give a roadmap of today, let's finish off this topic you raised, which is we're waiting on the Supreme Court to decide whether to take up the immunity case. And I think the reason and I agree with you, Andrew, that you and I and others are now speculating that the court will deny the stay and deny cert and somebody is just writing is because there's no need to take this long if they're going to grant the stay. Now, we could be wrong. Who knows?

But it feels like if they were going to grant that stay, they would have done that by now and put out a scheduling order because it doesn't seem like they needed a lot of time to decide whether they wanted to take up the case. But you never know. They've been busy. They had huge arguments yesterday in these net choice cases and a bunch of huge arguments last week. So who knows? We're stuck speculating. OK, but on the real agenda for today, notwithstanding, we've been talking at least five minutes.

is so many motions. By the way, our producers have drilled into us. It's like, you know, I should never have used that term, snap-a-doodle. Snap-a-doodle. Because basically we have our producers going, hello, snap-a-doodle. Yep, that's right. My sister was over the other night. She's like, snap-a-doodle. So, okay, here we go.

So I'd say the theme today is motions, motions, motions. We're just being flooded with motions. So we're going to talk about Mar-a-Lago and a whole series of motions that Donald Trump filed to basically to dismiss the case and some of the ins and outs of those. We'll talk about a whole bunch of motions that Alvin Bragg just filed in the New York election interference slash hush money case, I'm calling

an election with their parents. I love it. We're sliding over to new language. Which is true. It has the benefit of being true. Lots of motions there that have been filed. And then we'll talk a little bit about what is now happening now that the civil fraud trial has been finished.

up in New York City and we have this judgment of almost a half billion dollars that Mr. Trump has appealed from. And then, of course, we'll conclude with a little bit on just the wild and crazy stuff, honestly, that's going on in Georgia with respect to the motion to disqualify Fannie Willis. That's really becoming something of a saga that's unfortunately detracting, I think, from the seriousness of the indictments and the charges there. But sometimes that's what happens in litigation.

Okay, should we start on Mar-a-Lago? Yeah. So, Mary, maybe I should just give a list of what has been filed by Donald Trump, and then it's going to be...

like fielder's choice and I'll turn it over to you for what you think is sort of interesting and struck you as interesting. So there is a whole slew of motions that were filed. We don't even potentially know all of them because to the extent that there were motions that referenced information that had to be filed under seal, there may be stuff that we don't know yet but has been filed. But having said that, there's already a huge group and I think the big

picture is, you know, tons of delay because of this. And it certainly gives Shoshkana an excuse, regardless of the merits or

I'm pretty sure, Mary, you and I will be in violent agreement about lack of merit. They're lacking merit, yeah. Yeah. So there is a claim of presidential immunity. We'll come back to that because some of you are going to be going, presidential immunity? I thought this charged conduct after he was president. Okay, to be continued. Yep. Yep. Keep you on tenterhooks for that one. Second, there's an argument for Presidential Records Act.

related very much to the immunity motion. So we'll talk about them at the same time. Yes, and it's very hard not to jump in and say like why it's a crock. Yep, yep. But I will, I'm going to resist. There is also a claim about the special counsel and the appointment of the special counsel not being constitutional. That's something I know very, very well because we litigated that repeatedly with respect to special counsel Mueller. Newsflash or spoiler alert,

Every single decision that we got was it's constitutional. So that's a make-wait. The next is... Vagueness. A bunch of things about vagueness, about he can't really be charged unless he was impeached first, an argument that he had a form of clearance while he was president and he still has something called acute clearance. And so that means that it's lawful for him to have documents that are

Mark classified outside of a skiff. Don't even begin to get me started about the idiocy of that one. That's my... How's that for a sophisticated legal analysis, Mary? That's a good legal argument, yeah. I think those are the primary ones that I had noted specifically.

So, Mary, take it away. Yeah, I think a couple of overarching points also are worth mentioning is that, you know, not all of these arguments to dismiss the Mar-a-Lago indictment would apply to all of the charges in the indictment. For example, the motion to dismiss on presidential immunity grounds only relates to the counts of mishandling classified information because the

The argument there, which is very much tied to the Presidential Records Act argument, also a basis for a motion to dismiss, is that Mr. Trump, while he was still in office, made the decision to designate certain records as personal. He claims he could do that under the Presidential Records Act.

Never mind that it's ridiculous that you could designate classified documents as personal documents, as the things just don't really go together. But he made the decision while he was still in office to designate all of these records. Probably he did it in his mind. He probably did it in his brain. To designate all these classified documents as personal records, that was within the scope of his official acts. Therefore, he's back to his argument that I should have immunity from criminal prosecution from everything within the scope of my official acts.

And so you should dismiss counts 1 through 32, which are all of the mishandling of classified documents counts. Now, some people may be thinking, okay, I get it that that's not all of the counts that wouldn't apply to the obstruction counts. But even on those mishandling of classified documents counts,

Didn't a court already reject presidential immunity? Yes, but that was the D.C. Circuit. The D.C. Circuit's opinion is persuasive on other courts outside of D.C., but it is not binding on them. So Judge Cannon does not have to

apply the reasoning or the holding of the D.C. Circuit when she analyzes this presidential immunity argument, nor does the 11th Circuit if this were to go up to the 11th Circuit. They're not bound by that. Only the Supreme Court can bind them all. So there's no reason he wouldn't take another run at an immunity argument.

Yeah, what I analogize this to, because it's important to know that the classified documents part of the charges, not the obstruction part, deals with the unlawful retention of documents. So

Jack Smith and his team clearly were avoiding this issue of... What he did while he was in office, right? Exactly. So that they were not dealing with whether while in office he did anything right or wrong. They were just saying, after you were no longer president, you were retaining information knowingly and intentionally. To me, this argument about...

but what I did as president is lawful, is like a bank robber saying, the gun I used to rob the bank and shoot the guard, I lawfully obtained that gun. I have a license. Therefore, I get to do anything with it.

I mean, the idea that, yes, I could lawfully take these documents from the White House. Which, first of all, I disagree with. Right. But even if you accepted that. Right. Right. Exactly. I was going to. It's funny. I was. This is this is why we do a podcast. I had that in my head and I was thinking, God, if I digress on this, Mary's going to go. Can you just get to the point? So it's so great that you digress to it because I was literally thinking the exact same thing.

So it doesn't matter that you lawfully had a gun. Guess what you can't do with it? Rob a bank or kill someone. So the issue is, as frivolous as it seems to us, it is the kind of thing that can give Judge Cannon an opportunity to ponder for a long time and change.

Just the way we're seeing the D.C. case slowed down because of a presidential immunity claim, if Judge Cannon were to rule in Trump's favor, the government is going to need to appeal. That's right. So this is a long way of saying I never have been very optimistic that this case is going to go before the election. And I think the goal of these kinds of motions is to solidify that and to make it even less likely that this will actually go to trial and to give a number of fig leaves to

to the judge to accomplish that goal. Yeah, so totally agree with that. But I also think there's another piece of this that is worth discussing, which is, as I just indicated, that immunity motion is only made with respect to 32 counts of the indictment. There's a whole bunch more counts that have to do with obstruction of justice, right? Working to withhold the classified materials from his own lawyers, from the government that

than to try to destroy the videotape that would have shown people going in and out of the areas where the documents were stored, all of that stuff. So Trump did something, I'm going to use a nice term and say very creative, which is this is the reason for the other motion to dismiss completely the whole indictment based on the Presidential Records Act. The theory there is because under the Presidential Records Act, Mr. Trump could designate all these documents automatically,

as personal, then there was no lawful basis even to do an investigation, a criminal investigation into his retention of those documents. Therefore, everything that was a fruit of that, like an investigation into obstruction, was also unauthorized and unlawful, and therefore the entire case needs to be thrown out.

I mean, this is really, really pushing the envelope on legal arguments, in my opinion. Mary, my head hurts. My head hurts because it's so preposterous that it makes you realize how intrusive

inured we've become to taking seriously arguments that if you or I were in a room saying, what kind of arguments could we come up with that we might want to make in court? Someone would raise this in order for one of our students, we'd be like, okay, we need to sit them down and walk them through why this does not meet sort of law 101. But do you know what, Andrew? Do

This made me think of when Bill Barr was the attorney general and he came in and directed the Department of Justice to dismiss the case against Michael Flynn. His rationale was there was no authority for the FBI to start an investigation, which he was just flat out wrong on. His argument was that that investigation into Michael Flynn and whether he had had contacts with the Russian ambassador before Mr. Trump took office was

That investigation was unauthorized, according to Mr. Barr. Therefore, the fact that Michael Flynn lied to the FBI in an interview with the FBI was unauthorized interview to begin with. And therefore, the case about lying to the FBI, charging him with lying to the FBI, which he had pleaded guilty to, needed to be dismissed. I thought that was outrageous then. I think it's outrageous now. But in a way, this argument is very similar to that.

Yeah, I mean, of course, the factual predicate for Donald Trump's argument is that the government knew and had every reason to know that these were all documents that have been transmogrified into personal documents, even though there's zero evidence of that. And you can't do it.

it. I mean, that did not happen any more than he didn't take the gold from Fort Knox and say, you know what? This is now personal. Personal. Yeah. Yeah. Right. So anyway, to be continued. But the main take home is very, very weak arguments. But they will give Judge Cannon if she is inclined to to delay the case. Mary, should we take a break and then turn to what's going on in the Manhattan criminal case? Yep. Let's do it. Stay tuned.

MSNBC's Lawrence O'Donnell. I grew up in the front row of the spectator section in courtrooms. My father was a Boston cop who became a lawyer, and he had me in the courtrooms all the time. And I was learning literally the rules of evidence when I was in high school. My first book was about a case that went on for seven years. And so everything that happens in courtrooms makes perfect sense to me, and my job is to try to make it make sense to an audience. The Last Word with Lawrence O'Donnell.

Weeknights at 10 p.m. Eastern on MSNBC. Welcome back. On the topic of motions, we had a flurry of motions filed by District Attorney Alvin Brack this week. He is really at the point, you know, when you're a trial prosecutor, you're feeling when you're a month out, like you're literally on the eve of your trial. And so this is when the motions come fast and furious. And

You're getting all your witnesses prepared. You're preparing yourself as the prosecutor with your direct examinations, your cross examinations. You're getting all your exhibits prepared. And what these motions show is he's also worried about safety. I mean, that's a theme we see with every single case, civil or criminal, involving Mr. Trump is real concern about disruption of the trial, at least in part.

by threats and extrajudicial outside the courtroom public statements made by Mr. Trump or others. So two of the motions that he filed just, I guess, yesterday, Monday, were motions about safety, motions for a limited restriction or gag order on

on statements that Mr. Trump could make or direct others to make, and also a motion related to juror secrecy. And one of the things I wanted to mention and get your take on is I think that he did a really smart thing, Alvin Bragg, in making his motion for sort of this limited gag order. He went directly to what the D.C. Circuit had upheld. You recall

that in the January 6th related case in D.C., Judge Chutkin had issued a gag order that had been appealed by Mr. Trump. The D.C. Circuit affirmed the gag order, but did narrow it somewhat. And what Alvin Bragg did is said, look, D.C. Circuit applies even a stricter test for gag orders than what governs in New York. But we're going to ask for the same thing, essentially, that the D.C. Circuit, again, D.C. Circuit is not binding on New York.

But I think this was a smart thing. We're going to ask for the same thing, essentially, that the D.C. Circuit approved, which is a bar on making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their participation in the investigation of the criminal proceedings.

Two, making or directing others to make public statements about counsel in the case other than the DA himself, members of the court staff and the DA's staff, and their family members if those statements are made with intent to material interfere with the work in the criminal case or with the knowledge that such interference is likely.

he added a third, which is making or directing others to make public statements about any prospective juror. Andrew, what else did you see about this motion that looked familiar in terms of the support for it? So a couple of things. One, I completely tracked the D.C. circuit decision. I mean, they clearly had studied that.

including the fact that Alvin Bragg, the DA, carved himself out, which is exactly what had happened in the D.C. case as well, where they had said, you know, you, Donald Trump, can attack and make comments about Jack Smith himself. And so Alvin Bragg followed suit on that. There was one place where it diverged from the D.C. Circuit decision, but only because of timing. If you remember, the D.C. Circuit decision didn't deal with the judge's power to protect jurors

and potential jurors, and there was a footnote, footnote 18. What a memory. Wow. Pretty nerdy, huh? It stood out to me at the time that they were very focused on the fact that that was not the basis for what Judge Chutkan was doing. She herself had said that. And so I think they wanted to make it clear that they weren't trying to limit that, and they were thinking about the upcoming trial.

So here, what Alvin Bragg did looking at that said, well, it didn't address that, but I can because I have this case coming up now where I do have to worry about jurors. There's a quirk of New York law, which is that at least initially, in absence of some extraordinary circumstance, the defendant and defense counsel are entitled to know the names of the jurors. But the motion says that you

you can't attack them and you cannot publicize their names in order to protect them. It also said that if there were to be a violation, then further steps could be taken to restrict access to that information. So I thought that was really interesting. And actually, that was actually the basis of an entire second motion, right, is to restrict the knowledge of the names to just the parties and the council. But with that

threat that you just mentioned. But if there's statements about them, then, you know, prospectively, all bets are off. And secondly, to restrict disclosure of business or residential addresses of any prospective or sworn jurors other than to counsel of record for the parties. Right. So they're very concerned, rightfully so, about juror safety. And then the submission itself is hundreds of pages long. And there is a detailed record for the judge about

the threats, the instances of violence going back years and documenting it for the court so there can be no claim that there isn't a record and this is speculative. I have to say big picture stepping out of my legal role to sort of how I look at this as a human. As opposed to like a dog or something? A lawyer. Okay. As opposed to like a nerdy podcaster. Yes. Got it. Okay. I'm with you now. I'm tracking. Okay.

Reading that submission, it is a report card on our civilization right now, what the United States has become. It is so reprehensible. It's the kind of thing that you would think in any world, Republicans and Democrats, any

Anyone would be saying this is terrible. The legal system should just work. And if the government can't prove its case, then you're acquitted. And that's the way it should be. And if they can, then you're held responsible. But you know what doesn't have a place in that? Taking the law into your own hands. But...

Yeah, the January 6th case itself is just a testament to how far we've come, including all the people who are saying, oh, if you're convicted in the January 6th case, you're actually a hostage. I mean, it is Alice in Wonderland. It is. And reading this submission is surreal because of that.

So I actually thought what was great is that this is another instance of a DA looking at all of the other cases and everyone's learning from each other about what the kind of precautions and what you need to do to safeguard the system. I mean, just to be clear what it's about. It is about making sure there's a fair trial for everyone. And it's decided on the facts and the law. It is not about railroading.

Just to be clear, if Alvin Bragg can't prove his case, so be it. That's our system. This is making sure that the jurors don't feel threatened, that they can do their job, that you don't sign up for jury service any more than to be a poll worker in Georgia and be threatened because of it. Yeah. And, you know, the other thing I think that just bears one second of mention is, you know, you and I have handled many, many criminal cases. This is not an ordinary thing to file. I think that's your point. I mean, even in cases of violent crimes,

It's only with violent gang cases or in your case, you had certain, you know, big mafia family cases where you do sometimes worry about this. But frankly, oftentimes, even in those cases, there is a general respect for the institution of the judiciary and the court system. And they get it that when they're ordered not to do something, they're not going to do it.

This is like an all bets are off. We don't care. Or Mr. Trump, anyway, doesn't seem to care, flagrantly violate the rules. And so it's really extraordinary. People may think that, oh, I bet this stuff gets filed in violent crime cases. No, it's not very ordinary. No, even in mafia cases, it's a subset of mafia cases where you file this. But isn't it remarkable? It doesn't happen in white collar cases or economic crime cases like this. So we're sitting there seeing this.

that this has to be resorted to with respect to someone who is the leader of the free world. It's just, you know, depressing.

I was going to say remarkable, but it's just depressing. The other thing that, as you said, Mary, is that there are a bunch of motions that Alvin Bragg has filed. And maybe we'll get into those details more as the issues are joined. But they're all about what kind of evidence the government would like to present at trial and what kind of arguments they think are extraneous and should be precluded, essentially to try and avoid...

jury nullification arguments. We saw the same thing happen in the E. Jean Carroll case, where there were arguments about what could or could not be argued. And the idea there is to make sure that only relevant, not unduly prejudicial arguments and

evidence is brought before the court. This part is fairly typical to have motions eliminate on both sides. We'll get into the details of that. But just to make sure people have a basic understanding of what we're talking about, we're talking about things like a motion to exclude

evidence or argument regarding what federal prosecutors thought about Michael Cohen's credibility. Right. So Alvin Bragg is saying that's not relevant to the issues in front of this jury. And then there's also a motion to permit Alvin Bragg to put in evidence of sort of other bad acts, things like the Access Hollywood tape to show motive and intent and absence of a mistake, things like that.

So we'll get into all these as we get closer to trial. But like you said, Andrew, this is very normal before a criminal trial, because the thing is, if you don't seek a ruling on some of these things in advance and counsel for the other side goes ahead and asks a witness a question and you object to it, even if you prevail in your objection and even if the judge says strike that answer, jury disregard it, it's already been heard by the jury. Your brain doesn't really work that.

that way in saying, oh, I'm going to flush that out of my brain and it's no longer there anymore. So that's what you're trying to avoid with these motions is to make sure that you get the ground rules first and neither party gets something into evidence that's going to be really prejudicial and there's no really good way to like put the milk back in the bottle.

Okay, let's take another break and come back and we're going to talk about what's going on with Judge Ngoran and Judge Kaplan. They oversaw civil cases where they used essentially half a billion dollars and counting in monetary awards against the former president. And we'll talk a little bit about what's happening in Georgia. Stay tuned.

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All right. Welcome back. Judge Angoran. OK, everyone recalls almost a half a billion dollars in disgorgement as well as prejudgment interest. And this week, no big surprise. Mr. Trump appealed Judge Angoran's ruling both as to sort of his factual findings, his legal findings, his judgment, appealed it to the appellate division in New York.

but he has not yet posted a bond. And there's been so much talk about posting the bond. But these things are two different things, aren't they, Andrew? Like you get to appeal without posting a bond. The question is, do you have to pay now or do you pay later? Right. So just to be clear what it means if a judgment is not stayed is

It means that within 30 days of the judge entering his order that, for instance, you have to pay $85 million or a state case, you have to pay $450 million. There isn't a stay within 30 days of the judgment being entered and

And that means being given to the clerk's office and being formally stamped and docketed. It means that there now is an order that the plaintiff can use to start seizing assets and to take other steps to get their money. So yes, you can appeal, but if you do not

pay the money into the court or just satisfy the judgment, that judgment goes into effect and the plaintiff gets to start collecting and take all sorts of action. We know that Letitia James said she's prepared to do that. We know that Robbie Kaplan, the lawyer for Eugene Carroll, has said she's prepared to do that. So if nothing happens within that 30 days, the judgment goes into effect.

And people start collecting. And so people are sort of looking to see what will happen. Both Judge N'Goran and Judge Kaplan have said, no, they're not staying the judgment. And so you could imagine that Donald Trump will try and appeal that and say there should be a stay. But he also has to be thinking about how am I going to try and pay this? Can he get a bond company? We talked about that.

Can he get a third party like an Elon Musk or some foreign Elon Musk? But he's got a quandary because he has to come up with that money. And there are all sorts of limitations if you've taken out loans about your ability to re-pledge assets that have been pledged. So that's all sort of very complicated. For him, there is a ticking clock. Right.

Right. And so his request to stay that so far, denied. Yeah. So we'll wait and see whether he actually comes up with the money or the judgment goes into effect. Now, there is another option, and I'm sure he'll go for it, which is...

He can ask the appellate court to issue a stay even without him putting up a bond. You know, one of the things Judge Angoran said is, I'm denying any, you know, delay of the entry of the judgment. I'm denying any stay. Take it to the appellate court if you want. So he will try that. But the only way he gets an automatic stay of the judgment is if he pays that bond or just pays off the judgment.

which is not a standard judgment, then you've paid it off. Yep. And I do think it seems hard to get that stay otherwise, to be able to say factually and legally, I have such, such merit. Such a good chance of winning on appeal. Exactly. That the risk of the plaintiff not getting her money in E. Jean Carroll's case or the state in the N'Goran case is so, they should bear the risk.

I'm not sure I see a court doing that, knowing what the risk is here and how strong the cases were. But, you know, I agree with you. From his perspective, why not try? If there's a 1% chance, there's a 1% chance. So now...

Georgia, the plot continues. And this is one where there's a whole lot that can be said. And we've talked about what's going on, whether the law even makes sense, even if you were to compare this to the financial doings that we've learned about in the Supreme Court for certain of the justices, which makes this amount of money look like a pittance.

But leaving that aside, one of the issues that's now going to be litigated, maybe sort of front and center, is the credibility of Fannie Willis and...

And Mr. Wade, the lead prosecutor and the lead prosecutor in the case who have denied certain things about when their relationship started and whether they shared or didn't share the expenses. And I want to sort of leave aside that issue of like, is it even makes sense that the laws allows this because the judge opened this hearing and it happened yesterday.

And so the issue is, were they completely candid about that? And of course, people should be candid about that. You know, my view is, especially when you work for the public, everyone has an obligation. And by the way, I'm not saying that they weren't. But one of the things that we're going to be hearing from is this issue of Mr. Wade's divorce lawyer had been saying that he does not have to testify because apparently the information he said was privileged and

And we talked a little about how information he learned from his client about the relationship could be something that is privileged because it relates to being his divorce lawyer. Right.

On the other hand, if Mr. Bradley learned something because he just saw it. With his eyes. With his eyes, right? So he was present for evidence that could be pertinent to the hearing. That's not going to be privileged. Meaning evidence that potentially a relationship, a personal romantic relationship pre-existed Mr. Wade being hired by Ms. Willis on this case. That's really what we're getting at here.

Did he witness things, which leads him to believe and reasonably one could interpret to mean that there was a personal relationship.

And there was a witness already who used to work for the prosecutor's office who said that. So the issue is whether that is the nature of the evidence and that all of these issues that we're talking about were heard in camera by Judge McAfee overseeing this case. And he decided that there was a basis for Mr. Bradley to have to testify. We don't know yet exactly what the scope is. And obviously, we don't know the substance of what he's going to say.

It seems to speculate, it seems that since the defense really wants this and the prosecutors are fighting it, you would assume that the evidence is going to be helpful for the defense. But that's an assumption. We also don't know how helpful or how credible it is or whether Mr. Bradley saw something directly in just how powerful it is. All of that remains to be seen. You know, you and I are both fact-based people. Yep.

So we will sort of make a judgment. We've got to wait. Exactly. He will be testifying soon. Yeah. And then the final piece on that is that there was evidence that was presented having to do with cell site information. It's kind of complicated. I don't think it's yet been admitted. There's some disputes about whether it should or should not be allowed. But

But it is the defense has information about where Mr. Wade's phone was at any particular time, trying to say that you can see that his phone was in a location where his home is. And then it was at a location where Fonny Willis was staying and sort of tracking that. One of the issues there is that it's called cell site information because your phone pings usually the nearest cell site. The tower. The tower. The tower.

And so that's a broad amount of information because it's not specific to like one block or an apartment.

Her house is within cell site radius that his phone was in. Right. So that there could be other explanations. But the cell site information that has been presented does deal with sort of very, very late at night up to early in the morning. There also are telephone calls and there are thousands of these calls at a time when you would have a question about why. Now, if they were working on a case together, you could imagine it goes through the night sometimes. Yep.

But other ways to deal with this is if you have cell site information that is consistent, notice my word, not proving, but consistent with going from one home to another. You might look also at the telephone records to see that during that time, if they're texting and calling each other, that would suggest that they're not in the same place because you would be in the same room. You don't marry. You and I could just talk. That's right.

Although I do sometimes text my husband from upstairs when he's downstairs. Okay, so we're going to have to have a conversation about that when the podcast is over. But in any event, leaving that very important caveat aside, Yes, it is important.

It's important to actually that is important just to note that it's not always dispositive, but you can correlate that piece of evidence with other evidence to see if it helps. Obviously, that's the kind of thing that there will be argument over that will happen later this week. And one point that has been made about people who are familiar with the area is that within this cell site radius that includes Ms. Willis's home at the time, there are also restaurants and commercial establishments and things that someone might have other reasons to go to. I

I'm not trying to make excuses for anything because we just don't know yet. And, you know, some of the information that's in this motion that they are offering to put on could be quite damaging. Again, all of this has nothing to do with the charges in the Georgia Fulton County indictment, the charges about election interference and attempting to override the will of the voters in Georgia.

This is all about should Ms. Willis be disqualified from prosecuting this case because she obtained some financial benefit from hiring Mr. Wade. And so the personal relationship is only relevant to the extent that it would suggest potentially, but still not dispositively, that if they had a romantic relationship before she hired him, then she hired him, then they went on fancy trips that he paid for, that she did the whole thing in order to benefit financially.

It's a pretty, I don't know, far-fetched, maybe astute, yes. It's a... Yeah, it's very, very tenuous. But I do think this is one where let's assume that there is sufficient evidence from the judge that they were not candid in court. That's a problem. It becomes the cover-up on something that I think was sort of silly to begin with.

But anyway, to be continued. Mary, I keep on saying this because we have the Supreme Court decision coming down anytime soon. We have so many different filings. Look forward to talking to you, hopefully very soon. The next time, which could be a week, could be a couple of days. Or less. Yes. Take care. Bye. Bye.

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.

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