Deep Dive
Shownotes Transcript
Hello, welcome back to an emergency episode. As we predicted, on Friday, February 9th, there is a lot to talk about. Hi, Mary. How are you? Hi, Andrew. Oh, it's just been a hella week, you know? Yeah.
We thought originally we were going to use today just to talk about the SCOTUS arguments yesterday on the 14th Amendment Section 3 disqualification issue. But now we also have Robert Herr's report. So, so much in just the few days since we recorded on Tuesday. I have to say there's a slight out-of-body experience when we see each other, we talk to each other. I knew we were going to be doing this today. And yesterday I was, I basically lived at MSNBC. But
Periodically, I would look up and there you were. And I was like, wait a second, I'm not on with her. That's right. That's wrong. So, yeah, exactly. But this is, I feel like this is like our home. This is home base. And this is like a chance to actually talk about sort of what happened in the past.
And so obviously what we're about to get into are two big, serious things that happened yesterday, the Supreme Court SCOTUS argument and our takes on that. And then we're going to spend some time talking about the Robert Herr special counsel report. Mary, so should we start with the SCOTUS argument and maybe your big takeaways, what you thought about it? I know we're
trying to not be in the prediction business, but this is one where it's really- I feel pretty confident. Yeah, this is, the only prediction issue I actually see is how many justices- Will write separate opinions? Exactly. So separate opinions, but all with the same conclusion. Yeah. And just to be clear about what Andrew and I are sort of saying with some levity that the result seems pretty clear is that
I don't think anyone could have listened to the argument without coming away thinking it's almost a certainty that the court is going to reverse the Colorado Supreme Court's decision to bar Donald Trump from the ballot. And the question will be, will it be 9-0? Will it be 8-1? Maybe 7-2? Can I just say, since I'm going to go out on a limb,
This is one where, you know what, we actually have a disagreement because I think I'm not sure I would say almost a certainty. OK, right. He would say a certainty. OK. I actually do think in this situation it is a certainty.
But anyway, I'm just teasing. Let's get into the substance and now leave aside the jokes. Yeah. I think most significantly for me is that almost every member of the court, I think, was deeply concerned about a state having the power to sort of unilaterally keep a candidate for a national office, a federal national office off of the ballot to use their ballot access laws
essentially to enforce the 14th Amendment, Section 3. And part of that concern was about disuniformity, that states have different procedures. And so you could end up with Mr. Trump on the ballots in some states, but not other states. There were concerns about that disuniformity when it comes to different
Standards that the states might have for making, you know, assuming they even had a procedure to adjudicate whether Mr. Trump had engaged in insurrection under the 14th Amendment, Section 3, and therefore was disqualified.
from holding the office of the presidency. The question, you know, Justice Alito, but other justices also talked about what would be the standard of proof? What about there being different rules of evidence? Because of course here, the Colorado trial court accepted as evidence
The House Select Committee's January 6th report, they accepted as evidence an expert witness, really a sociologist, basically professor who I know quite well, Pete Seamy. He does fantastic work. But, you know, he testified about sort of the coded language that Mr. Trump would use that his most ardent supporters would interpret in a particular way. These are all things that justices express some concern that other states, other courts might not
allow that type of evidence. But they also, I think, just deeply were concerned about the fact that, you know, one state could have that kind of power. One of the things that was almost a non-issue in the argument, which went
gosh, two and a half hours, I guess, something like that. Yes. There was very little discussion about what it means to engage in insurrection. This really didn't surprise me because originally I thought that is not something that I think the court's going to really want to get into. And normally they would defer to a lower court's factual findings for clear error. And if they're going to get into this question about
whether Mr. Trump engaged in insurrection, are they going to just defer based on clear error? Are they going to sort of independently denote what we call de novo review completely on their own, whether the facts support that conclusion? They didn't get into that hardly at
all. There was a little bit of discussion and the media keeps playing a particular colloquy at the very end of the argument by Mr. Mitchell, who was representing Mr. Trump, where she asked him about, are you backing away from an argument you made below about whether what happened on January 6th was an insurrection? He said, no. Katonji, Katonji Brown Jackson, when you said she, that you're referring to Justice Jackson. That's right.
Yep. Sorry about that. Yes. He said, no, we're not backing him up. No, this is no apology zone. Apology free zone. Okay. All right. Well, apology free. Doing this podcast means never having to say you're sorry. Oh, my God. That should be like a song. Does that date me? Well, no. Dates me too then. Yeah. Dates me too. Remember, that was the line from Love Story. Absolutely. So, yeah.
Justice Jackson asked, are you backing away from your argument that this wasn't an insurrection? He said, no, we think that an insurrection has to be essentially this organized use of violence to overthrow the government. And this was chaotic. And then, of course, she said, so what? Or actually, he didn't say this is chaotic. She then said, so wait, a chaotic insurrection?
effort to overthrow the government with force of violence would not be an insurrection. And of course, he didn't have a great response for that. But really, that was a very minimal part of this argument. So we could talk about so many other things that the justices were interested in, but that's my overall take. This is what really bothered them. So one thing just for people listening this to know is if you go to our podcast feed, we put the entire audio of the oral argument on
on our podcast feed. We want to make sure everyone has the ability to actually hear it for themselves and you can dip in and out at your leisure and see what it is that we're talking about on today's show. Just get ready. It's about two hours and 15 minutes. But if you want the actual data and you want to hear the arguments, you will have it. So I
I also, it was interesting, I was not surprised that they didn't talk about the insurrection fact-finding because it doesn't really get them anywhere because although what happened is they could just send it back for, you know, apply the correct law or they thought the fact standard was wrong that you should have more than a preponderance or should be clear and convincing that it would just be more fact-finding. So they really weren't too focused on that and it wasn't in a lot of people's interest to deal with that.
And a couple of things, the issue about the chaotic nature of one state does this and what is it, disuniformity, I think you said? Disuniformity, yes. Yeah, okay. You know, one of the things when the Colorado Secretary of State had a brief argument and was heard from, that actually is part of our system. That's federalism. Right. I mean, there is disuniformity, right?
now. So that was sort of an unusual. I understand why they were concerned about it, but that was sort of like, wake up and smell the coffee. I think the difference here is that a lot of the disuniformity now, no one cares about because it's a minor party candidate with no chance of winning. There are people right now who are on the ballot for president in some states, people we've never heard of and not on the ballot in other states. And nobody cares unless it's a
candidate that's likely to be the nominee. That's absolutely right. I also wanted to make a point that I think a lot of people, I think correctly, are saying that the justices are looking for an off-ramp, that they don't want to be in this position. You had Justice Alito basically saying, gee, who's going to decide this? Are we going to decide what's an insurrection? And it's like,
Yeah, that's why they pay you the big bucks. Yes, you would be doing that. I do think, though, that just viewing this as an attack, like to say, oh, this is just the Supreme Court keeping its head down, or
or this is the Supreme Court being hypocritical about their view of originalism. They're for originalism until it's inconvenient and they're not. I just think that when people are listening to that, that they need to wrestle with a problem with that analysis. That is probably an okay analysis with respect to some of the justices, but my view is here are three problems for the
that sort of way of thinking about the whole argument as a whole and trying to dismiss it as the Supreme Court either being pro-Trump or the Supreme Court just not wanting to do it. Exactly. And that this isn't sort of principle-based. I'm not saying that's not a fair criticism of some of the justices,
Here's three problems with that argument. Ketanji Brown-Jackson, Kagan, Sotomayor. That's right. And those are three justices I have enormous respect for in terms of their intellect, their writing, and their integrity, meaning that they are women who are principled and razor sharp. And they all asked tough questions about
I would be surprised if maybe one of them might dissent or they may have different reasons for overturning the Colorado decision. But I think at least two, if not all three, will be doing it. And it's important to look at what they end up writing and realizing that there is a problem in this case that is actually principle-based. And so I just think, you know,
You know, our job here, and this is why it's nice to be on a podcast, is to wrestle and both of us teach. And it's also consistent with our training at the Department of Justice, which is you have to confront inconvenient facts. That's right. And so I think we're going to come back to this when the decision comes out. We can also come back to it after the break, which our producer is very much wanting us to get to. Yeah.
You know, we have this wonderful new producer who is very good about keeping us on track because Mary and I can just go off the rails. And I should say, I can go off the rails. No, it's very much mutual. All right, so let's get to break and we'll talk a little bit more about this case right after the break.
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So, Mary, before we were so rudely interrupted... By the break. Yeah, exactly. So I wanted to say something that's going to probably be viewed as a little offensive or self-congratulatory. But I kind of view this entire episode, because we're going to talk about the Supreme Court argument and then we're going to talk about Rob Herr.
as the I told you so episode, or in this case, we told you so episode, because I know we both predicted we would be in both matters, but just in the Supreme Court matter, you know, we were not in the group of very smart, well-intentioned people who thought that this was an easy case. And I think we both thought there are open issues, there are things for the Supreme Court to decide, but that it's not surprising where we are.
Yeah, and I agree, although I do want to emphasize that notwithstanding the very, very difficult questions posed to counsel Jason Murphy, who was counsel for the Colorado voters who brought this case, I mean, he had some very strong responses.
It's just a hard case, right? Like he was able to explain in response to this idea of why should a state be able to do this? He points to the Elector's Clause of the Constitution, which gives the states
the states, the authority to determine how they are going to appoint presidential electors. So what Mr. Murray was saying is because the states have the constitutional authority under the electors clause to appoint presidential electors, that means, of course, they can determine through their ballot access laws who is going to be on the ballot in that state for president and therefore determine from that vote based on the ballot
where the presidential electors will be pledged. And that's a solid constitutional argument. It's just the consequences of that for using ballot access laws to keep somebody off the ballot because they engaged in an insurrection is where the judges found it deeply troubling. I just wanted to stress something you're saying is that I wouldn't say a lot, but some people have cringed
criticized the oral advocacy of the person who was arguing, Mr. Murray, on behalf of Colorado. First of all, I've never been a huge believer that oral argument is the make or break. I mean, it can make a difference, but they're written briefs. The papers are where it's at. Yes. Right. The papers and their people read all the papers. And yes, an oral argument can move the needle a bit. But I just also thought his arguments were very good. And
And so I just think it's unfair to be like, oh, I'm disappointed in how it went and then blame the oral advocate. That's usually not where a case is won or lost. That's true. And I will give credit also and kudos to Mr. Mitchell, who argued on behalf of Mr. Trump.
He was fantastic. He did not do what we have seen other Trump lawyers do in lower courts, which is basically be arguing to Mr. Trump and being very political and hyperbolic. He did not do that at all. He even acknowledged when he was given what we call a softball question, a question that should have been an easy one.
He would acknowledge even if he thought he had a weakness in his argument in response to that, which for me, you know, having done many, many appellate arguments, that type of candor with the court is something that I value so much. And I think it gives you so much credibility. So I did. I just want to say the advocates on both sides, I thought, did really a marvelous job. I thought.
But Mr. Mitchell was a model for students of how to do an oral argument. I had the exact same view. An example of what you're talking about with respect to not just doing an argument to placate Mr. Trump is when he was asked about the insurrection, he said it was shameful, it was a crime,
I mean, he did not do the these people are hostages and heroes. That's right. And, you know, he really was his own person. And I think he oozed credibility because of that. Yeah, agree. Two other points I think are worth briefly mentioning. And then maybe we can talk a little bit about what happens next. One is that in the colloquies about sort of like this question of should states be able to make these decisions about national federal offices?
Ketanji Brown Jackson, Justice Jackson, actually was one of the more vocal justices on this issue. And what she kept hammering home is at the
At post-Civil War, wasn't the concern of the framers of the 14th Amendment that they did not want to give power to the states, particularly the southern states, because they were so concerned that those states, that the insurrectionists, the rebels, the Confederates would work their way back up into high offices to include potentially the presidency. And so they wanted to keep that kind of away from the states. And it was a powerful moment because, you know,
you know, it does put you in the mindset of, wow, yes, of course, there was all kinds of concern about the southern states at the time. And that was Chief Justice Roberts then picked up that exact point and maybe phrased it in a sort of more vernacular way, saying that the whole import
of the 14th Amendment was a restriction on states. And you could understand the concern about the restrictions of states given this sort of post-Civil War landscape. So wouldn't it be anomalous to be reading this now as giving power to the states with respect to a national office? So it was sort of an interesting historical perspective that both the Chief Justice and Katonji Brown Jackson were bringing to the argument. I was struck by the same thing.
It goes to the point that we were making earlier that that is a principled argument. Maybe the history is wrong. Maybe they're overemphasizing that. But that is a principled argument that is not looking for an off ramp because they don't want to do their job. No, that's right. And
Part of the reason this came up is because I was talking earlier about the power for the states under the electors clause. And one of the questions is, but yeah, that power under the electors clause still has to be cabined by other constitutional provisions. Exactly.
And so if the 14th Amendment, Section 3, is it really about the states making these decisions? So really, really interesting, very in the weeds argument. I did not see more than maybe two, maybe three justices open to this distinction, this argument that the presidency is not an officer or an office under the United States. I mean, there was discussion about it. Justice Gorsuch was interested in it.
Again, Justice Jackson herself said, why isn't the president listed? Isn't there some ambiguity there? Exactly. Mr. Murray, I thought, had good responses to that. And I think one of the things that came out that was interesting about that discussion is...
Mr. Trump is the only president in our history who had not held some other high office that would clearly qualify. At least this is what was argued under Section 3, where he had taken an oath as that office. So most have been senators or representatives or governors of states and things like that. Except, of course, our first president. Yes, yes. Except for Washington, but that's for obvious reasons. Right.
Right, right, right. And so essentially, then, this not applying to the presidency would mean it only doesn't apply to Mr. Trump. Yeah, Justice Sotomayor said, isn't this a little convenient? Yeah, yes, exactly. That's right. Isn't this a little gerrymandered? Exactly. But again, you know, Mr. Mitchell had a wonderful response to that. He was like, yes, it does work for that, but it's not gerrymandered in the sense that it was like devious or intentional. Right.
And it was, again, it was a wonderful response to Justice Sotomayor and candid. It was just in terms of advocacy, you know, he just did a very good job. Mary, should we turn to what's next in terms of, you know, depending on how the court rules? Yeah, and I think if the court alternates
ultimately doesn't say that the 14th Amendment, Section 3, doesn't apply to the president. So they reject the argument about office officer, but they determine that the state just doesn't have the authority to enforce the 14th Amendment, Section 3, when it comes to a national office, that it would have to be Congress that would do this. That does mean that
On January 6th, if Mr. Trump were to have won the popular vote, well, not won the popular vote, won the Electoral College, which can be very, he's never won the popular vote ever, including the year he became the president. But if he were to have won the electoral- A whole series of presidents have not, have been president without winning it. Yeah. If he were to win the Electoral College votes,
As we all know, because we lived through January 6th, that's when the houses of Congress come together. That's when they open the Electoral College ballots. And that's when they can raise objections to those ballots. And under the Electoral Count Reform Act, if one fifth of each body of Congress, the House of Representatives and the Senate objects to the votes from any state, they can recess and they go in to debate that. And it is possible that Congress would end up
exercising its authority to say, no, we're not going to count the votes from the states that had sent in their ballots for Mr. Trump because we've determined that he engaged in an insurrection. And so I think this is worth a whole discussion about how this would play out under either the 12th Amendment or the 20th Amendment and
other concerns about that. But unless they were to determine that either the 14th Amendment, Section 3 just doesn't apply to the presidency or that Mr. Trump just didn't engage in insurrection, and I don't think they're going to say that. Otherwise, this issue still remains open, at least in terms of Congress potentially being able to do something. Absolutely. Two other very quick thoughts. One, remember, there was the second impeachment.
That's right.
was found by Congress, by the Senate. He was impeached for that. And then the Senate, by a majority, found it. In order to convict for an impeachment, there has to be more than a majority. But again, that is sort of an undecided issue. But there actually has been a finding. That's right. And that's what they could say, right? On January 6th, they could say, we've already found this. Exactly. It's surprising that didn't really come up that much in terms of the argument. And that's because people were sort of not dealing with that
factual issue. The second issue that is just worth briefly mentioning is that it does spotlight the fact that although the January 6th Committee made a referral to the Department of Justice that included referring to them charging the former president with insurrection under Title 18, United States Code 2383,
That is not one of the charges that was presented to the grand jury and voted on. And so Donald Trump is not charged with insurrection. Remember, that is the one statute that has as a penalty upon conviction that you shall be disqualified from running from office.
And so there was a lot of discussion yesterday, or I shouldn't say a lot, but there was an acknowledgement that that would be sort of the congressional enabling statute of the 14th Amendment. In other words, Congress has acted. They have said this is at least a mechanism for enforcing that provision. Of course, they enacted that before 14th Amendment Section 3, but still, it's a congressional enactment. Yes, exactly. Exactly.
And so many people may be asking, so why didn't the department do that? And this is my educated speculation to use Mary's phrase from last episode, which is one, it is not a statute that has been used and relied on for decades is actually putting it mildly. So it's been scores and scores of years. And so it would sort of bring this to the fore, the idea of selective prosecution. The
But there's an answer to that, which is we haven't had that situation before. That's right. But there is this idea of reaching back to a statute that's not typically used. But I think more importantly, it also was trying to take out the idea that we're bringing this case just to remove him from...
The ballot. Right. There's an example of being a political balance. Yes, exactly. That this is trying to be apolitical. It's really worth remembering that that this is such a difference in terms of how this Department of Justice operates compared to the Trump Department of Justice, that this was not charged. And even though, by the way, they still get tired with being political. Yes. Donald Trump, because, of course, he's going to say whatever he's going to say, like any defendant.
But this is one where that was not something that was brought because it precisely didn't have as a consequence upon conviction that he cannot run for office. It maybe is a factor for why he should not be elected, but it doesn't actually remove him from the ballot. But it will place increased focus on that decision of why wasn't that charged. It will. And speaking of things not being charged, after the break, we'll talk about Robert Herr's report.
As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall. Extraordinary levels of enthusiasm from Democrats for the fight ahead. The Democratic National Convention. Special coverage this week on MSNBC.
Welcome back. Okay, Andrew, I know you have been chomping at the bit to talk about Special Counsel Robert Herr's report after his investigation into President Biden's handling or mishandling of classified documents after he had left the Office of Vice Presidency before he became the president. So have at it. So first, I use the phrase chomping at the bit, I think, in the last podcast.
podcast and somebody emailed me to say it's champing.
Oh, really? So don't you love these, the things we get through email? Love. And you know what? That was correct. Wow. Champing. Okay. So just to be clear, I stand corrected because I always do it also. For those people who think that they're not learning anything from this podcast, at the very least, Mary and I are learning from this podcast. Yes, all kinds of things. So keep it coming. We know about the Bronx. But that was, thank you. Thank you to our listener for that.
So that is going to be the very last thing I say with any sense of humor, because the Herr report we are going to now be living with for quite some time. Remember, Robert Herr is now going to testify before Congress. We're going to see a million attack ads. We could see people saying that there should be impeachment hearings. We're going to hear about the 25th Amendment.
There's so much that is going to be used from that report in a improper way, in my view. But let me just make sure people understand. This is the Robert Herr was appointed a special counsel by Merrick Garland to investigate the Biden
Biden classified documents issue, very much like Mike Pence. And the reason I keep on raising Mike Pence is ultimately, in my view, the facts are, they're different facts. Every case has different facts, but it is a really similar thing because it was concluded that there is insufficient proof
of a knowing and willful violation. There was a finding of full cooperation and there was no, absolutely no obstruction of justice. In both cases, Mr. Pence and President Biden. So that's the bottom line. And the reason I say that is I think, Mary, for you and me as former prosecutors and for me as a former defense lawyer, that's it.
We're done. Those are the issues. It is not a crime to make a mistake. It is not a crime if you have classified documents at home and it's a mistake. It's not knowing and intentional. It's not willful. And there are various components to that that would need to be proved. So you're not even in the criminal bucket at that point. And then you add in full cooperation and no obstruction. So
It's so similar to Mike Pence. The Mike Pence report, oh, wait, there is none. That just was, we're not going forward. But here, there is a 400-page report. And so you think, okay, so what I was really concerned about, and we talked about just a couple episodes, and I have tweeted and talked about this at the moment that Rob Herr was appointed.
And that is the adjectives and adverbs problem. It's the James Comey 2.0. James Comey, in announcing that he was recommending to the department that there should not be criminal charges against Hillary Clinton, then took the opportunity to step outside of the bounds of what you do in the Department of Justice to comment on the proof and give his personal views about what happened.
to say the least. That is probably the mildest thing to say. And he did that in July. Now, this is not yet July of an election year when Hillary Clinton was one of the candidates for president. Exactly. So for Rob Herr to engage in...
sort of adjectives and adverbs that were so gratuitous. And, you know, he obviously knew how it would play out. And I don't think there was even a veneer of legitimacy. And I can tell you the moment in the report where I knew that this was going to be a problem
Page one. Right. Wait, literally page one. And I'm going to quote from it on page one. This is what Rob Hurst says in the executive summary. Quote, the classified documents and other materials recovered in this case spanned Mr. Biden's career in national public life. This is the key part now. Again, still quoting. During that career, Mr. Biden has long seen himself
as a historic figure, gratuitous. I mean, that is nasty. That doesn't help to prove or disprove whether he mishandled classified documents, Andrew? No. And it's, yeah, exactly. And it is gratuitous. It is nasty. It is a hubristic. It is outside of the role and shows a complete lack of judgment.
to have included that. And again, that's just one example. And also, by the way, he is a historic figure. He's the frigging president of the United States. So it's also one, even if true, what's your point?
The other, and then I'll turn over to Mary because I am getting into the venting mode, but I'm going to just do one more venting, which is what obviously we're all going to be living with and discussing is where Rob Hur describes Mr. Biden's purported lack of memory or faulty memory. Leave aside that his current memory for the purpose of this report is irrelevant.
It would only be an issue of what he remembered at the time when he was showing and having documents and whether he knew they were classified at the time. And the key piece is something that is contemporaneous. In other words, so that you just want to know what his memory was like in 2017 when he was talking about them or seeing them. It doesn't really matter what he's like now. So leave aside that it's just it's apples and oranges. It doesn't focus on the right issue in the right time frame. But.
The idea that you would use as an example, what he remembered or said about the death of his son, it invoked in me the same anger I felt once
when I was listening to James Comey and had nothing to do with whether I was for or against Hillary Clinton. That was not in any way in my mind. What was in my mind was how much it violated the Department of Justice rules and what you're supposed to do and not do as a prosecutor. This was so classless and was such a sign of who Rob Herr is. To me, it didn't in any...
in any way, give me a sense of who Joseph Biden is. It told me everything about Rob Herr, that that is the kind of thing that you would include in a report was beyond disgraceful. And I thought it was a real abuse of
of the power and the obligation that you have and this sense of right and wrong that you have to have when you're in the Department of Justice. So I don't disagree with any of that. I don't think Biden's current memory is totally irrelevant because Robert Herr, and I'll get to why that is, is because of the way he used it.
Here's my take on this report. This reads, although I didn't read all, I didn't read all nearly 400 pages, right? I read the executive summary and select portions, particularly the portion where Mr. Herr really does, I think, go into an inordinate detail about what he perceives to be Mr. Biden's memory lapses. What I read makes me think of a prosecution memo, right? Which is normally a purely internal document within the
the prosecutor's office. But we certainly did, and I think you did too, you did a prosecution memo for every case, whether you decided to then seek an indictment or you decided to decline to seek an indictment. And that memo would talk about what the evidence is that you found that support charges
and what the weaknesses of those charges might be. Those weaknesses are certainly, and that's essentially the way Mr. Hurst starts this report, right? Our investigation uncovered evidence of willful retention disclosure, but also other evidence that suggested
that it was not willful. And part of that other evidence included things like, you were just mentioning, his memory at the time in 2017 about what he thought he had in his possession and what he didn't.
And the reasons a jury might conclude that this was not willful and knowing based on the things that Mr. Biden was saying contemporaneously in 2017 when he was talking to the ghostwriter about writing his memoir and how he was reflecting on his notes and things like that. It also went on, and I think this would not be crazy to do in a prosecution memo that's entirely internal to say, and furthermore, this purported defendant
if he testified at trial, could be viewed sympathetically by the jurors. And that's where I think it's not utterly irrelevant for him to talk about memory issues
Because he could be saying jurors might see this person, hear this person testify, and that demeanor, that whatever memory issues Mr. Hurst thinks are relevant are things that a jury might use to say he's sympathetic, he's well-intentioned, and we don't think that he did this intentionally. Okay, so I think it's not utterly irrelevant.
The problem, of course, is... But Mary, just to be clear, that wasn't how they used it. They did say that, but their point was it shows his bad memory now.
They did both because the... Yeah, but I'm just saying that's the problem. If they had said, if he testifies, this is what could happen, that I agree with you, that would be pretty weak tea, but at least you have a slight veneer. Because you have direct evidence of his memory in 2017, to say what he's like seven years later is sort of weird because it's like it doesn't really matter.
Let's remember the critical evidence here is the documents he sees in 2017 where he's on tape saying, you know, here's the classified documents upstairs. And it's totally unclear whether he means classified or these are privileged documents or that it's even the right ones. So that's why I thought that was sort of the direct issue. Well, that's not what he says. Maybe you think he's biased.
putting a cover up on it, but his exact words are, we also have considered that at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. And he goes on for an entire paragraph to say that a jury might not be convinced they should convict him. So I agree with your point. It's not relevant to his memory at 2017, but he is saying here he's using it. And we would normally...
Back when I was a prosecutor, we might say things about the sympathetic nature of a defendant and the possibility that a juror would not want to convict because of that sympathetic nature, which maybe could include memory issues. That's my point about not entirely irrelevant. The difference here is this is not a purely internal document to momentarily
memorialize within the Department of Justice the reasons for declining a prosecution. And normally, a declination memo would never see the light of day. But Mr. Herr, when he wrote this, he knew he was acting under the special counsel regulations. He would be returning this report to Merrick Garland and that the special counsel regulations
give the attorney general the authority to make it public or not, but that Mr. Garland would be under such pressure to make it public that there is no chance. There was no chance. He announced it. He already said he was going to. Right. There's no chance he wouldn't. So this is where I think sort of like the outrage comes in. Knowing this, Mr. Herr put all of this gratuitous language in there during a presidential election year where Mr. Biden is a candidate and it just
feeds right into what, you know, the other party wants to be saying about Mr. Biden's memory. So I think that's where I think to your point of this is not what you do at the Department of Justice. You do not seek to put your thumb on the scale of an election. And even though we're many, many months out, this is a presidential election. It's not a city council member election or a mayoral election. Right. And so it's really significant. And so that's where, you know, it didn't need to be a 400 page report, as you said. But that report
that you know is going to be made public, it could have been much, much shorter. It could have been much more like what we saw with respect to Mike Pence. And that's where I think this is causing such great problems for people like you and me and others who just see this as just unfair. Yeah, I'm going to be a dog with a bone, even though we need to wrap, which is just...
I would be more in agreement if it had said, and by the way, when he takes the stand, if he took the stand, even though the main issue is what his memory was in 2017, he could present as an old man. And they may not want to convict an old man. His memory now, in order to talk about that, you would need to know why that's relevant. That just, to me, is a gratuitous statement, as opposed to saying, you know,
somebody's 93 years old and in poor health, so the jury might be sympathetic, even though he committed the crime. Just remember here, the thing that's so crazy, the reason I find it so absurd, is just remember, this is like another error, this is great that we have a little bit of a dispute. He'd already said, he already said there was insufficient evidence. Mm-hmm. That's right. What are we talking about? Right? So the reason it's, isn't it the definition of gratuitous? It's like, oh yeah, he's,
here's one more reason that's going to really hurt him politically that I'm going to put in there. But by the way, I'm telling you that there's no evidence. And let me just support that with one more quote, which is, this is one of the things, because a lot of people have been saying Rob Herr has found that the current president has committed a violation but decided otherwise.
That there shouldn't be a prosecution. That's not what it said. That's not what it says on page one. That's why I read that sentence. Because that's not what he said. Exactly. And so many people are getting that wrong. That's right. Here's the other point, just because I'm a dog with a bone.
on the issue of there's no willful and intentional violation. This is on page six in this executive summary. In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute. End quote.
And we're done. You know what that means when you're a prosecutor and someone says they're innocent explanations that we cannot refute? You don't prosecute. That's what that means. Right. That would be, that would be, let's see, they're innocent explanations that we cannot refute. That means innocent. I mean, talk about weird wording.
You know, I'd say the original sin here is with respect to Rob Herr and this overstepping. I would say the second is this idea of appointing him and that we can deal with sort of later the larger topic of this idea that you can only appoint a Republican to investigate a Democrat, which I think is just wrong as a model. Although surely you can understand why the attorney general did that, right?
I certainly can. And I think it's something you have to fight against, which is this idea that that it's an overreaction to sort of the Mueller attacks. And I think it buys into the idea that Republicans and Democrats can't be principal in the same way that we've talked about judges appointed by Democrats and Republicans can be completely fair and impartial. And so I think it's reaffirming that cynicism.
And it gives into and feeds and fuels a narrative as opposed to taking on the important function of educating the public about what it means to be a nation of laws and to act in a principled way. And as people who've been in the Department of Justice until Donald Trump, there were no political discussions. I don't know that I...
ever in a million years had a political discussion at DOJ or the FBI. I didn't even know people's politics because you just didn't ask and it didn't come up. You just did your job. So, okay. On that note. Yes. Thank you so much for letting me vent. Yep. I mean, you know, I'm venting too. Like I said, anyway, we don't have to rehash it. Have a good weekend. We will be back next week. Exactly. Much more to come. Mary, again, thanks for putting up with me. Oh, my pleasure. Always.
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.
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Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.