BONUS: Live from the 92nd Street Y
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Hi, it's Andrew Weissman, one of your hosts for Prosecuting Donald Trump. And I'm here to share a very special episode, a bonus episode of the show.

On Wednesday night, Mary and I had the pleasure of having a discussion with our friend and colleague, the truly wonderful Nicole Wallace. We were at the 92nd Street Y Live in New York City. And Mary and I got to dig into special stories from our careers, to have a really different kind of conversation with Nicole. We had a really terrific time. I really hope you enjoy it and listen. Hi, everyone. Hi.

So I TV live, but I don't podcast live very often. I'm nervous. This is the real deal. Thank you so much. There are no two people that I try harder to have on my show every single day than these two, which leaves their calendar sort of gunked up between four and six most days. So it's really a pleasure to be here on your podcast. I mentioned in the back, there's so much news today about

that I want to keep you all in the room by saying we're going to get to in a minute. I want to go back, though, in the Wayback Machine, because one of the stories that I think is so captivating is the dictator hangout between Kim Jong-un and Vladimir Putin. And it's easy to look at it as a story of two international pariahs hanging out because no one else will really have them.

But it shouldn't be lost on anyone that they're the two foreign leaders Donald Trump has publicly said the most amazing things about. Angela Merkel, he loathed. Vladimir Putin, he loves. Western European leaders, he could never find anything generous to say. Kim Jong-un is someone he thinks is brilliant and strong.

So I'm not stitching together any sort of narrative. These are the facts as we know them. And I want to ask both of you, having served in the Justice Department in national security roles, how the country protects itself from what Russia might do to interfere in the next election when the stakes are so much higher than they were in 16? I'll start with you, Mary.

Well, you know, one of the problems now is that there's kind of no holds barred, right? I mean, in the 2016 election, there were a lot of suspicions about Russia assisting in the election, wanting President Trump to win. There were a lot of statements that Trump would make out there, you know, Russia, if you're listening, can you find those missing Hillary Clinton emails, those kind of things. But I think we didn't know the true extent of Russia's interference until our

in our election until really after the fact, right? After it was already done. And now we all know going in that Russia will try to interfere. We all know that the stakes for Russia are even higher now. Putin's got a war in Ukraine that the U.S. is

helping to fund Ukraine to fight. And we also have unrest, I'd say, in North Korea and in the South China Sea and other places in the Far East. And so these are things that we know that these foreign leaders are ones who are very much wanting to see

Trump win this next election. And so I think it's, you know, as Andrew will probably talk about, money is one aspect, right? There's lots of ways to get money into a campaign that are hard to investigate, especially before an election when, you know, there's so many things going on. But there's so many other ways we learned about last time, right? Infecting our politics with fake Facebook accounts and fake social media accounts and actually even orchestrating on the ground,

events here in support of Mr. Trump. So I think there's so many threats we're worried about, including political violence generated right here in the United States that has nothing to do with our foreign adversaries. And so knowing which place to put your effort, I think, is a real challenge for our election officials, our law enforcement, our investigators. You know, Trump's appointed director of the FBI, Christopher Wray, has now testified for, I think, at least four years

that the greatest threat to the homeland is domestic violent extremism. It's something we talk about all the time. Do you worry that the pattern that laid the foundation for 9-11, which is that we can only focus on so many threats at a single time as a country defending itself from many, many, many sources of threats, do you worry that we're distracted by that domestic threat and not paying enough attention to Russia?

So I think that's unlikely, Justin. I'd be interested in Andrew's take because he was general counsel at the FBI. But of course, I worked very closely as well throughout my career, but with both the counterterrorism and the counterintelligence, you know, sections of the national security branch. And

You know, there are whole teams that remain focused 100 percent of the time, 24-7, on Russia, on North Korea, on China, on Iran. And those are different people than the ones who are investigating domestic extremist threats, domestic violent extremism. And those are different from the people, frankly, who are spending all of their time studying and learning about foreign terrorist organizations online.

Which have not gone away, right? I mean, al-Qaeda is still out there. ISIS is still out there. Al-Shabaab is still out there. And they, you know, you can't turn your focus away from those. The one thing I think about the domestic extremist threat, though, that we also have to keep in mind is that it is not completely separate from sort of the Russia interference. Disinformation. Right? Because the generation of so much disinformation, I mean, this is just like...

It's like a fertile ground for our adversaries to say, let's just put some more seeds of political division among these people who are already polarized and just make it worse. And so, you know, it's easy for them. We covered a story on Monday about the Georgia District Attorney Fannie Willis and some of the special grand jurors.

being doxxed, having all their personal information put out on the internet, including their home address, the addresses of their businesses, their family members, their children's names, their children's schools. Can you imagine?

And the law enforcement officials in Georgia who investigated said they couldn't get it down because it was housed by a Russian company. So this is exactly what Mary's talking about, this toxic combustion between Russia's desire to see Trump prevail in this case in a prosecution in Georgia and the stirring up and stoking of anger here at home.

So in the Mueller investigation, there were two types of charges that were brought in connection with Russia specifically. One was active measures and one was sort of the hack and dump, which go to exactly what you're talking about. So active measures is social media and really trying to sow division, which obviously, I wouldn't say that's the cause, but certainly that's now here. We don't really need to have foreign interference for it. We have it homegrown.

And there was, you know, actively supporting candidates other than Hillary Clinton on the Democratic side and suppressing the black vote and supporting Trump and denigrating other Republican candidates. So very, very pointed. And then there was the hack and dump that's going to be going on with Russia, China, other countries as well. I'm that's going to happen.

I'm less concerned about that for our upcoming election than as we were talking about before we just came out. I'm really concerned about...

money pouring in. From Russia and other places. And to use Mary's term, there is no holds barred because, so, you know, Putin, as you've mentioned, has every interest to see, because of his particular situation, to see somebody in the White House who's going to side with him and stop funding the Ukraine war effort, which used to, supporting Ukraine just to

for everyone to remember, was something that was a core Republican value before Donald Trump. So you're going to have Putin doing everything he can to support Trump, including financially. So, for instance, when people are saying, well, his money's being drained, that I think he's going to get lots of foreign money. And the problem is that that takes a long time to investigate, meaning too long.

And it's right now to make everyone really depressed, but there's no way to track that and to make a case and to prevent it, I think, unless you get really lucky before the election. And at that point, if it's Trump or an ally, it'll all be pardoned or not investigated.

So that to me is, you're gonna, I just think that's where the main issue is. And then obviously as Mary knows very well, 'cause it's her day job, which I like to think is the podcast, but it's not. - It's becoming it, it seems like. - So Mary does this amazing work at ICAP and dealing with domestic extremism and domestic terrorist groups like the Proud Boys and the Earth Keepers and suing them civilly. And I just think,

whatever Russia was trying to foment is something that is very much now embedded in our country and will be regardless of whether Donald Trump disappears tomorrow. You know, as someone who had a senior role in the Mueller investigation and what you were investigating was whether these comments, Mary's talking about Russia, if you're listening,

If you look at what's happening now, I mean, his position on the Ukraine war is it would end in 24 hours if he was reelected. That's not because he'd help Ukraine win it. Right. The opposite is true. He would give it back to Russia. And you look at... Well, Nicole, that's because they all speak Russian. So that was his comment about Crimea. But you look at...

the circumstances that tipped off your probe, right? The Mueller probe. And then you look at where both men are now. So Putin's soldiers are facing attack and artillery from weapons largely funded by America's President Joe Biden. If you think about what Putin was willing to do because Hillary Clinton pissed him off, and you look at what Joe Biden has done, it's

It's so much graver even by Putin's view. And then you look at Trump. In 16, he was literally running for kicks. He got bored. His TV show, I think, flamed out. So he ran for president. Now he's running to stay out of jail.

Do you worry that we have a failure of imagination to predict and prepare for what Putin and Trump will do together this time? I just, so I think it may be that. I just think it is very hard if, let's just take the money piece. It is just because we're a democracy and we believe in the rule of law. For now. Exactly. But part of that is that you can't just be up on it.

to use a technical term, you can't just have a wire. So you can't go get a wiretap or a FISA, which is sort of a national security wiretap, without having probable cause. And you have to go to court in most circumstances and get approval for that kind of thing. And that's the way it should be. And we were both in the government and we accepted that as part of what you have to do. And

And so what you would need is not sort of me and Mary speculating about this is this has to be what's going to happen because you have two people who don't believe in the rule of law. And as you said, they have every single incentive to do this. And they don't care as long as they would get caught after at a time when it doesn't matter anymore. And so that doesn't that's not probable cause. Having a motive is not enough. So you would need to have more than that.

in order to trace the money. I do think in terms of disinformation, that is one which a recent decision out of the Fifth Circuit is, I think, is just an abomination because I think the far right has really weaponized

First Amendment, whether we're talking about the 303 Creative case, which based on the First Amendment for the first time I think in our history has allowed discrimination against gay people, despite of the fact that the state had made it illegal to do that, saying, "No, it's a First Amendment right to discriminate." And in the Fifth Circuit, the most recent decision is about

the preventing the Biden administration from having communications with social media. Both of us have been in those conversations. It was a better decision than the district court had had, that's for sure. But it's hard, you know, that's a low bar. Explain this. This was about COVID disinformation. Why don't you explain this? So we used to be in this situation when, so when I was at the FBI, let me just give you a very concrete

sort of hypothetical example, a military leader calls up and is very upset because information is on, let's just say, Facebook.

but it could be Twitter or any post that is revealing the identity of senior State Department official or military leaders and including calling for their violence, calling for violence with respect to them. And we knew what the social media companies' internal policies were, which is that at least at that time, most had very good policies about not having that on their websites.

So depending on the level of threat, and let's take an example which is really serious, I would call the general counsel of Twitter and say, "I'm not telling you what to do. We don't have authority to tell them what to do, but I am raising with you this information because I'm not sure it's gotten to your level, and we think it probably violates your policy, which is X. We think it meets it. You know, you actually have to make that decision." Usually the general counsel's incredibly

solicitous about, "Thank you so much. No, it hadn't reached my attention." They usually get back to you as to what their decision is, because you want them to take it down. Obviously, if they didn't take it down, you'd have to figure out your legal options. But I never was in a situation where they wouldn't do it because we wouldn't make the call.

without there being that kind of concern. Anyway, that is the topic that the district court and now the Fifth Circuit, as Mary said in a slightly revised way, has said, no, this is part of a woke...

agenda by the Biden administration, and we don't want those kinds of calls, you are trying to take down conservative speech. You're trying to stop people from putting out disinformation about COVID because the Biden administration was very concerned about all of our safety in this country. And obviously, it was a global issue.

And I remember at the oral argument, one of the judges said, well, isn't that something that they might believe, but they could be wrong? I mean, it's about the Biden administration. And I was like, I mean, this is like science actually is not debatable on something like that. There's hard evidence. It was really a shocking comment from the court. So anyway, it's a real problem because there is a way to try and have a public-private partnership. And this is trying to

put a wrench into that issue. And I think what it imported, it imported this idea that these companies were going to feel coerced by the government. Now, it's certainly possible that companies would be, could be coerced by the government. But what the examples are not coercion. The examples are, you know, we're in a pandemic. We've got information that we're doing the best we can to try to get out to people to try to make sure they're safe and that public health is safe.

and to take down some of the disinformation. And so it's really just about communicating and trying to make the best decisions possible under an extraordinary circumstance. So to think that that's coercion, it really was a step

Well, I like that we kind of have moved this way because I think what I wanted to lay out with you guys here, without my producer who's here trying to get me to break, are some of these structural pieces. Because I think that the importance and the context of the news as it breaks should be laid on these pillars. One, Putin and Trump are far more desperate than they were in 16 when they clearly colluded. Right.

Right. May not have warranted charges of a criminal conspiracy, but collusion was established by the Mueller probe. We can name names. Elon Musk is now in charge of Twitter and he has greenlit white supremacy, white nationalists, violent rhetoric, violent images. And it goes beyond politics. There's no stuff on Twitter in the aftermath of mass shootings that has never been there before. And pro-Russia.

And anti-Ukraine and pro-Russia. So we have two men that colluded in 2016, far more desperate, the stakes much higher. We have social media where all of their messages are amplified and circulated amongst their followers. We have someone who...

has already revealed himself. Elon Musk is interested in platforming the worst elements who happen to intersect. I won't say that all of Trump's supporters are among that group, but all of that group seems to prefer Trump over Biden. And then I want to get to the third piece, the institutions in which you both served. There's a fair

real conversation to be had about whether they'd exist in another Trump term. I mean, and it's not just Trump. Actually, Ron DeSantis also has a platform of basically dismantling DOJ and the FBI. If you take those three positions and the normalizing of the assault on the rule of law, where are we?

Well, I think, you know, the first thing we know that Trump would try to do, because he's been very vocal about it, is he would turn the DOJ into his own weapon and he would come after everyone who's been investigating him and every political enemy. I mean, he's not even trying to hide that. Because he's not on Twitter, we mentioned it.

Yes, it is.

and, you know, try to do their best to keep things afloat. Now, I'm not necessarily going to say nice things about Jeff Sessions because he had his own, you know, misogynistic, racist problems himself. But I think a lot of other people at a lot of levels, including at the cabinet level, thought, you know, we can keep these institutions, you know, within the mainstream. We can keep doing the things that they've done throughout history.

their existence, the Department of Justice. And you know this because you were involved in the transition. I was there at the transition. Will you talk about that? Sure. I mean, the people that came over to DOJ to talk about national security were, you know, Jesse Liu and Ken Weinstein, people who'd been prosecutors for years, people who had served in high-level positions in national security and elsewhere at the department. Andrew also met with the transition team. These were people

who I know personally and I've worked with for decades, and they were doing a kind of a transition that you would expect in terms of asking the right questions, getting up to speed, because when a transition occurs, it means a new team of politicals come in. All the career people stay, and I was a career person, but I wasn't going to be staying in that acting assistant attorney general for national security position. Somebody else was going to be coming into that position.

Mary was engaged in the peaceful transfer of power. Yeah, which like...

Exactly. Clap for it. Clap for it. It's endangered. And I guess what you're saying is they were normal. They were normal. But, you know, what we saw is all the normal people got fired. You made a face. So we haven't talked about this, but so I had a transition team also. It's called the landing team. Yes. And you prepare these huge binders as part of the transition. And...

It may be because that was national security. And at the time I was on the criminal side, I'd sort of left the FBI. I was now at main justice in the criminal division. And it

natural security, there tends to be, it tends to be more apolitical in some ways. And it tends to also be that there's an enormous respect within the IC. And then internationally, there's just a very tight-knit community because, I mean, it's not very, it shouldn't be that controversial. It's, you know, it's like you're against terrorists and terrorism. So on the criminal side, our

It was different, so it wasn't like Jesse Liu and Ken Weinstein, who I love and adore and really respected. And the thing I remember is the three people who came in, first, they hadn't read anything. Like, we had these huge binders, nothing. But the main thing was...

there were three white men. That was the first thing that struck me. And we were three people, and it was me and a friend of mine. When I got to the FBI and I said, they're all white men. And a friend of mine said, no, no, no. At the FBI, you are the diversity. So it was me and an Asian-American woman and an Hispanic man. And that was sort of very sort of representative of that administration. But only one of the people on the other side of the table had

Did we even know? So it wasn't the same caliber and just didn't have any experience. So it was somewhat surprising because there was just, you know, you expect as sort of seriousness and that happens across administrations. And both of us have served in all sorts of administrations for decades. Yeah.

Because we're old. I'm old. Sorry. Roll for your soul. Oops. And so... Making old great again. So, you know, regardless of whether it's a Democrat or a Republican, they're just a lot of experienced people. But can I ask you, I mean, because...

I don't know if any of you have seen Sliding Doors, my favorite movie ever. I mean, the Sliding Doors piece of it is you're already investigating Mike Flynn, right? Don't you already have Flynn on a wiretap with Kislyak? I mean, like, so you're like, hey, here's the binders. We're on to you. I mean, what was that like?

that like? Mary's like, this is a perfect thing. Have you talked about this before? No. Well, she's, we have not talked about it, but this is perfect. Now, we were not telling that to the landing team. The landing team was frankly coming in before a lot of that became public. And I can speak about things publicly because the

report, the FBI report of my interview with the Mueller investigation about this whole thing is now public. So I reread it today so that I wouldn't say anything that was not public. But, you know, it came to the FBI's attention. They were about to close down their investigation of Mike Flynn when they learned about these calls he had with the Russian ambassador, Sergey Kislyak, and the concern... Nobody ever lies to anyone that isn't Russian. Just keep going. Right.

So this is December, right? Well, this is when the calls took place, but I learned about them at the beginning of January when Andy McCabe at the FBI called me and said they were concerned because some of you may remember that one of the things that President Obama did at the end of his term was issue sanctions against Russia for...

for the hacking and the interference in our election, because even before the Mueller investigation, there was a very, very significant intelligence community assessment of Russia's interference in our election. And some of those sanctions included expelling 35 Russian diplomats from the U.S. And the calls that we became aware of that Mike Flynn, who was going to be the incoming national security advisor to Russia,

those calls took place right on those dates of when Russia decided they weren't going to do any retaliation. And everything was kind of surprised. Everyone was kind of surprised. Why wasn't Russia going to retaliate when we kicked 35 of their diplomats out of the country? Well, as we know now, which has been publicly revealed, you know, Mike Flynn was having conversations basically saying, just chill, Trump's coming, you know, whatever.

Don't take any drastic action now. I won't get any more detail to that. So why do we care about this? Well, we care about this because obviously, you know, it is troublesome that before his administration's even in office, he's having these conversations. But what became even worse was that when some of this leaked and it was reported by The Washington Post that

Vice President Mike Pence went on national television. Sean Spicer went on national television and said, we've talked to Flynn. He did not talk to Kislyak about these sanctions. We've talked to him and he says he didn't. Well, we're sitting there going, that's not true. We know what he said. We know he talked about it. We know he brought them up.

up. It wasn't like he could have forgotten that they were talking about, you know, other things and he forgot that this was mentioned. He's the one who started the conversation. So our concern then was the Russians know that those conversations took place. So they now either think that the national security advisor is willing to lie to the vice president of the United States or

Or the vice president is in on it with the national security advisor and covering up for Russia. So they have compromised. They're compromised. So what do you do?

Well, that's what— Because, like, this—I mean, here's—and I'll explain why I came back to this. I think the two active federal criminal cases against Donald Trump deal with election interference and Trump as a national security risk. My experience in covering Trump for eight years is there are no new Trump stories. I wake up every day, and I open the New York Times app as soon as my eyes are on Blurry, and they all fall into the same categories of Trump cheating in elections or just Trump cheating and Trump in Russia. All of them.

So tell me, so here's another thing. It's not in the binder, really, what you do when the incoming national security advisor is caught in a wire. It is not in the binder. Right? So what do you do? I mean, we had discussions because we've learned about this actually even before transition, and we had discussions about who do we even call? We're not even sure who is the right person to tell this to, right?

And we had some disagreements with the FBI about what we thought that it was necessary to, you know, once transition did occur, we thought it was necessary to alert someone over there. And so some really kind of bizarre things happened while we were still, the Department of Justice and FBI, trying to work out the approach without telling anybody. And this won't surprise you. Jim Comey sent over some agents to interview Mike Flaherty.

I'm shocked.

Jim, we're going to go over and we're going to talk to him. And Jim said, I just sent two agents over to interview Mike Flynn right now. And so we were not happy about that because there's protocols. It's not that they shouldn't interview him. But when you have an FBI agent interviewing the national security advisor at the White House, you talk to the general counsel, the White House counsel about it. You work this out. You talk to the Department of Justice about it. Just so everyone knows, the FBI –

It likes to say it's an autonomous component, which is like a, you know, because it likes to think it's independent. But the FBI is a part of the Department of Justice. So the FBI director... So its independence is like in spirit. Yes. But it's on the same team as the Department of Justice. And reports to the deputy attorney general and the attorney general. Right, exactly. That's the point. Just because he's not here, what would Comey's defense of the move be? There is no defense. No.

I mean, Mary and I are sort of like... You know, we famously agree on everything, but, you know...

on Jim Comey, we are like, there's no daylight. Exactly. There's no defense for that. I mean, you report, you report to the deputy attorney general and the attorney general. Can we also just, what happens there is that Flynn lies to the FBI agents, which is why he ultimately gets prosecuted for lying to the FBI. And that was Pete Strzok. And they didn't go there with that at all. They sort of are trying to get him to tell the truth because they know, I mean, Mary can't say this, but like,

Let's just say the conversation that somebody has with somebody who's a Russian in this country, who's an ambassador. Let's just say there might be a very good chance that that's recorded. We spy on those kind of people. Yes. I mean, it's what's called, there's certain types of electronic surveillance that are called establishment ones where, you know, every country does that. It's just part of the spy craft.

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Let me just ask this one question that's never made sense to me. Mike Flynn would have known that we would have been recording Sergey Kislyak. Why does he lie? This is what has boggled my mind, right? Like he's been in national security his whole career. And so the sort of the chutzpah of having the conversations that he had was pretty amazing. But, you know,

I don't think I'm going out on a limb there. He's changed a lot over his career. And I think, I mean, I think that's, we've talked this. I think Mike,

Flynn, I mean, there's a reason, you know, President Obama famously is one of the things that he told Trump during the transition was basically to warn him to say whatever he was, Mike Flynn was into leading an agency that was important. He's not that anymore. My limited experience with him, you probably had more was, I mean, some things, you

something's off. And you can, you know, sometimes you meet someone and something's... It's gotten way off even since then. You can just tell just if you meet him, something's not right. And I don't mean that in a derogatory way. I mean, there's some issue. And so that's the only sort of explanation. I think we're both worrying about his feelings, right? I mean, he plotted the insurrection and he is pardoned and he, you know, is still... We prosecuted him, absolutely. Right, right. He admitted twice that...

to committing a crime. And then his defense when he withdrew it was that I lied to the federal judge when I said I was guilty. Twice. So that, so he, exactly. So I both admitted to underlying crimes, which by the way, he did.

And then said, I committed perjury, which was, well, I mean, it was just... And by the way, he does that change of heart when he gets a new attorney. Guess who? Sidney Powell. Ring a bell? So, okay. So I want to use this as the pivot to the two federal cases against Donald Trump. And I'd love for you to go back and share anything about you and Sally. I feel like that's a scene out of a movie. You and Sally, it's going over to the White House, but you have to work into an answer. But I...

Another episode of the podcast. Is it? We should do it. Is it going to be a whole episode? We should do it. Well, actually, to answer that, what was that? You guys get in a car and you're like, you do it. No, you do it. How did that go? What happened is... What happened is after Comey went over and then the agents came back and reported and we all thought it seemed like Michael Flynn lied, we still had this issue of nobody had told anyone in the White House that Flynn apparently lied to Vice President Pence. And so one night I got a call at home and Sally said...

I want to go talk to the White House counsel, Don McGahn, and I want you to come with me. And I think there were two reasons for that. You know, she was a holdover. You know, political appointees leave all of their jobs in government at transition, but they can't leave a nonpolitical appointee at the Department of Justice because only a Senate-confirmed, presidentially appointed appointee can sign foreign intelligence surveillance orders. And so she, every transition, one stays.

She was the one who stayed until, of course, she was fired on January 30th for not defending the Muslim ban. But that's a whole other episode and a whole other story. So I think because she was political and I was not, I was career serving in an acting capacity with almost 25 years in the department, I think she wanted a witness, number one, and she wanted somebody career to be in the room. So we drove over and we went up and we met with Don McGahn and one other person, James Burnham.

And we told him exactly what we knew. And was he like, yeah, I know? Or was he like, no way? Because I'm always surprised that these people are surprised, right? Like, what did he say? So, you know, first of all, I think they were really shocked, but trying not to look shocked. And on that meeting...

really asked very few questions. But one question, two questions were, is there a criminal? Well, actually, Dominguez said, would it be okay if I ask you if there's a criminal investigation going on of Flynn? And Sally Yates said, it would be okay for you to ask. It would not be okay for me to answer. I love Sally. Yeah, it was great. It was the perfect answer.

Because, again, that distance, right, between the White House and the Department of Justice, particularly when we're talking about somebody who's in the White House. But we know there was because Jim had sent two agents over, right? Well, this is another interesting thing because there was a whole debate about is this a counterintelligence investigation or a criminal investigation? Because the only crime would have been potentially a Logan Act crimes.

So Logan Act is... But once he lies, it becomes the second. Yes. That's after they've already gone to interview him, right? So once they've interviewed him and he lies, then we can be thinking about a criminal investigation and of course he did get prosecuted. I feel like in Candyland, the Trump person always takes the criminal path, right? It's like he might have been standing at the intersection of counterintelligence, quiet secret, no one will ever know, and crimes. Yeah, yeah. It's like the Trump people

People always take the crime path. Just to put in context, though, just how far we've come, this is Mary and Sally Eades.

Going to the White House because of a sense of this is what they're entitled to know as the people who are going to now be the custodians of the White House and at the Justice Department and a sense of what is required. And I mean, all of this just fell apart. But that's just to put in context of that trip.

is because of what the Department of Justice is supposed to be. Yeah. We thought the vice president had been lied to by somebody who was compromised, and he needed to know that. And the other question that Don McGahn asked was, what can I do with this information? And we said, you can do what you think you need to do with this information.

And so it wasn't a very long meeting, about 15 minutes. We went back to our offices and the next morning Sally called me. I was in my office and she said, Don again called and wants us to come back over. He has some more questions. And I'll tell you, honestly, and again, this is all in my interview that's been made public. It really went pretty much like the first interview.

I think that they had – I think they were so taken aback when they heard this that they needed to like sort of sleep on it and then ask a few questions. But mostly it was the same things that we had already done the previous day. This was a little wake-up call to Don McGahn as to like a little window into what his life was going to be. Oh, right. Who famously –

Who famously becomes, 30 hours later, the star witness of Mueller's Volume 2. I mean, it kind of starts in that room. By the way, he called in the interview, because we interviewed Mary and Sally and Don McGahn repeatedly came in to keep on telling us more information. But he called the Oval Office the Magic Kingdom. Who? Don McGahn. Don McGahn. Don McGahn. This is where I feel out of my depth as a cable host. I don't know what that's about.

That was because, you know, when he said that he takes notes, remember the whole back and forth? Oh, yes. Trump hates lawyers who take notes. Right, exactly. Because we know that good lawyers like Roy Cohn, which would be disbarred lawyers like Roy Cohn, they don't take notes. But the reasons Don McGahn was taking notes was the same reason he would think of the Oval as the Magic Kingdom. I mean, it was just a surreal experience. Yeah.

I want to pull through to the two investigations, but you guys keep pulling me back to this. I mean, do you look at the body of work? I mean, so the Mueller team successfully prosecutes Mike Flynn, Paul Manafort, George Papadopoulos. There's a deal with the deputy guy, Gates. Is that right? And they all get pardoned. I mean, what does that feel like? Well, not the ones who cooperated.

Right. It's just fascinating to me that like the people who are all pardoned, it's like everyone who didn't cooperate. I mean, you know, this is I mean, I'll give Jim Comey some props for this is when he initially sort of analogized and said this is like talking to a mob boss. I remember at the time thinking, oh, Jim, that's like hyperbole. And he's totally right.

And there was exactly right. And I just didn't I hadn't seen it. So the idea that you'd pardon the people who didn't cooperate. I mean, it's completely consistent. And and that's what's going to happen if he's, you know, if he's in the White House again, that's going to all of the people who are charged the January six people, Proud Boys, Oath Keepers. I mean, this is this isn't sort of us saying.

speculating. And it's just, that's going to be what happens. Which brings us to full circle, I think, where this started is, who is going to be the Attorney General if he wins again? Who's going to be the Secretary of Defense, the Secretary of Homeland Security, the Chief of Staff? Mike Flynn, right? I mean... It's going to be, you know, people who want to... And Sidney Powell's and Jeff Clark's. I mean, Jeff Clark was there already for a day. Ten minutes. You know, for our audience, a New York minute. Yeah, yeah, yeah. So let me ask you about...

Let's take them, I think, in terms of what even Trump would agree with us represents the gravest legal threat to him. And that would be the Jack Smith case into the insurrection and the coup plot. Walk me through the trajectory of that case, when and if you think there'll be a trial. And what do you think the chances are that that's something that happens and is concluded before people vote?

I certainly think that the district court judge in D.C., Tanya Chutkin, she's very much trying to get this to trial. She set the trial date for March 4th, which was not as quickly as the government asked for, but it was far more quickly than Trump's request, which was 2026. It's already an autocracy. And it's a doable thing. But, you know, one of my concerns is one of the things that Trump's attorney has been clear that he's going to file, although he's already late, he said it was going to be

The first week or the second week, which are now passed, is a motion to dismiss the case on the grounds of executive immunity, presidential immunity, which is not totally unlike what we're seeing with Mark Meadows and Jeffrey Clark in the Georgia investigation. They want to remove their cases to federal court so they can file motions to dismiss on the grounds of federal officer immunity. But the immunity is a little different as president.

And we've never it's never been really tested in the courts in this context because we've never had a president charged with a crime like this based on things he did while he was in office. So that he still hasn't filed that.

He can wait until the deadline for pretrial motions to file that if he wants, right? And then we have a full briefing schedule. Then Judge Chutkan will probably rule quickly. She's ruled quickly before she had the Trump v. Thompson case, which was about the House Select Committee's request for presidential records for its investigation. She ruled very quickly. But then he'll be able to appeal that because we're talking about immunity. And so you can't be made to go to

trial if you're actually immune. So he'll appeal that, and probably the D.C. Circuit will probably issue a very fast briefing schedule. And let's just assume that he loses there. He can seek cert in the Supreme Court, and then it's up to our Supreme Court to decide, do they do a fast track or do they do a slow roll? And do they have five votes for a stay, right? I mean, because in order to prevent the March trial date, there would have to be a stay. What do you think?

You know, there I'm going to try and be optimistic. I think the argument for presidential immunity is not strong, particularly given these facts. And I don't think that even...

for the three justices appointed by Trump that they necessarily have a lot of love for Donald Trump and what he stands for. I do think they will get two votes. You can guess who that will be. But you need more than two. Married to the mob? One.

Yeah. So and I do think, you know, what do you marry? Marry an appellate lawyer. So she's not anymore. But I do think, too, you know, we can learn something from the Trump v. Thompson case. Right. Because that's when, again, we're executive privilege to, you know, tell people what that is. Yeah. Executive privilege is really a communications privilege to protect people.

The free flow of communications within the White House by the president and those of his closest aides. Right. And that doesn't. And so that means that they can be privileged against having to testify about what they talked about or turn over documents about what they talked about in some cases if they fall within that privilege. That privilege is not absolute.

even though the president, many presidents of both parties want to say it's absolute. It actually is not absolute, and it can yield to an overwhelming and compelling government interest. And what was interesting about the House Select Committee's request for documents, presidential records as part of his investigation is Donald Trump was no longer the sitting president, yet he invoked executive privilege,

President Biden, who was the president, said, I'm not invoking executive privilege. So you had this clash of a current president and a former president. So the first issue was, can Trump even claim executive privilege? There's some precedent for former presidents being able to claim it. So that went forward. And then it was rejected because what the House Select Committee had asked for was clearly within their constitutional authority to gather information for purposes of

potential legislation. And so under a variety of different tests that could possibly be applicable, the court said, you don't have executive privilege here. That decision was stayed. That was a decision of Judge Chutkin, went to the D.C. Circuit. They ruled the same way. That was stayed while this went to the Supreme Court. The Supreme Court then, they asked the Supreme Court to stay. In other words, stay in

the order for the documents to be sent to the House Select Committee. The Supreme Court denied the stay and denied cert. And the two dissents are the two you're talking about. Well, there was only one vote not to stay it. And I think we all know who that is. And so...

that's a different situation than whether he's got immunity from criminal culpability. It totally is. But I think it does show that this court does care, despite all the other gripes that many of us have with this court. At least some of them do care about the institution. I think that they find January 6th and what happened there. I mean, the Supreme

Court was right in the middle of, you know, it's right across the street from the Capitol. The mob was, you know, coming onto their grounds, too. The fences went up around the Supreme Court, just like they did around the Capitol, right? They lived in that

based on this violence. And I think they're appalled by it, at least most of them. So I feel like justices, including Trump appointees, Amy Coney Barrett and Justice Kavanaugh, I think, you know, they care about the preservation of democracy. And so that's my optimism. And I'm not always optimistic. No, I'll take it. I'll take it. I want to ask you if you think Jack Smith will win at the trial. Yes. Yes. There you go. Thank you.

We should all go home now. I'll tell you, Mary and I have talked about this, which is our biggest fear in all of this, especially let's just take the two federal cases, because that's the area that we really have expertise in. It's just not fathomable to either of us that there would be an acquittal. For an acquittal, it has to be unanimous. And people always think it has to be unanimous for a conviction, but it has to be unanimous either way.

It's just not possible given the proof that we've seen that that's going to happen in any rational world. I just don't see that. But the reason, if there's anything to worry about, it's a hung jury. A hung jury happens when the jurors, as many of you may know from sitting on a jury, if you

don't, if you, the jury just can't decide. And sometimes that happens when you just have one errant juror. I once had a juror who like was waited for 10 days copying down exhibits because he wanted to write a book about the case. And, but at least he then voted to convict at the end of it after causing me no end of Ajda. But the

The problem with that and the reason I raised that experience was that was a juror who really, really wanted to be on it. It was a very high profile case in Enron and he wanted to be on that jury. And so the real concern is somebody who is not candid, wants to get on the jury, and you have a hung jury. A hung jury. Wants to get on the jury in order to hang the jury. Exactly. And...

that's the biggest issue because if you have a hung jury, as you, there's now we're in the comms world, which is that's going to be spun. And it always is spun by the defense as a win. And in some ways it is in the sense that they get another trial, they're not convicted. Anytime there's a second trial, it's, it's, I mean, I remember Bob Mueller saying to me during the, when the first case we had was, was mine and was a Manafort case. And I remember him saying, we,

have to win. We knew that a hung jury was going to be viewed publicly as a referendum. But here, the referendum is not on, you know, the Mueller investigation. Here, that one juror could have such a huge potential effect on the election, because I do think there'll be a trial. The D.C. trial will go first. I think that will, I think there will be

at least, like, you know, 11 votes. But the concern I have is, is there one person who sneaks on? More prosecuting Donald Trump, live from the 92nd Street Y, in just a moment.

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Let me ask a question from the audience and ask you to start with the D.C. case and then answer it for the Mar-a-Lago case. I'll have you go first with the D.C. case and take the Mar-a-Lago. So the question is, is there a precedent for this kind of case in U.S. history? So the D.C. case, I'm going to say...

Yes. Obviously, there's no precedent for a former president. I mean, thank goodness we've not been in that situation of four separate indictments and 91 felony counts total against a former president of the United States, the leader of the free world.

But what I would say to the issue is that if there is a, is there a precedent? And I think it's a really good question because it goes to, is Donald Trump being treated

fairly and comparably and not a subject of selective prosecution is the scores and scores of people in D.C. who have been prosecuted and convicted. It feels like a lifetime ago, but just last week, Enrique Terrio was sentenced to 22 years. So the leader of that leader should certainly be held to account. And so that's also one reason that wasn't asked. I think that for Judge Chutkan,

I think that at sentencing, that she will send him to jail because it's just not what, it's just not possible

I don't think that the fact that you have secret service is a reason not to do it. There are all sorts of ways that the prisons can handle that. And you're saying that's not, it wouldn't be a punitive statement. It would be around this, there can't be two, I mean, this has to be something, there can't be two systems of justice in the country. I mean, just remember for the judges. Tarrio just got 22 years. He got 22 years and this is the leader of that person in terms of what happened. I'm somewhat simplifying, but I mean, I just think for the judges in that

courthouse. And there are judges who are appointed by all sorts of presidents who are speaking with one voice about those cases and about sort of how they see them. So I know I've gone on too long, but I just think that there's ample precedent for his prosecution there. And you really just have to look at the current cases in D.C.

And we haven't talked about the Mar-a-Lago documents case, but I know, I mean, this fell into your purview in the Justice Department. And I mean, I think in government, we've all been involved in prosecutions of classified document mishandling. This is one of, this happens all the time. Right. Yeah. It hasn't been the

former president in the past, but it has been other high-level government officials sometimes and certainly lower-level government officials. And so the mishandling counts, the counts that apply when you have unauthorized access to classified information or national defense information, it's called in the statute, and you refuse to return it when asked,

That's a felony. It's a 10-year offense, and there are 32 counts of that in that indictment. And so there's ample precedent, and there's precedent for people getting substantial terms of imprisonment. There's also ample precedent for prosecuting obstruction of justice. There are two different

types of obstruction of justice that are charged in that case. And one is the effort of Donald Trump and his longtime aide, Walt Nada, to, you know, withhold classified information that the government had subpoenaed after they had learned that, you know, when he voluntarily, after a year of, of, of

nagging him when he voluntarily returned 15 boxes of presidential records and they contained classified information. The government then subpoenaed, opened a criminal investigation and subpoenaed more. And the evidence is pretty clear from the, it's allegations, but it's pretty clear from the indictment. And some of these things are, you know, recorded statements and statements of his own attorney that they basically hid documents from

not just from the government, but from their own attorney, Evan Corcoran, and lied to Evan Corcoran about whether all of the classified information that they had taken was in the storage room for him to search and caused him to create a false certification to the government that a

An exhaustive search had been done and everything had been returned. And of course, we know thereafter, a search warrant revealed more than 100 additional classified documents. So that was one of the obstruction offenses. The other set of obstruction offenses relates to the efforts to destroy surveillance videotape. When the government came...

to visit and saw that there were surveillance cameras. They subpoenaed the surveillance tape. And that's when other Trump employees, Carlos de Oliveira, who's now been charged in the superseding indictment, were pulled into this conspiracy to destroy that surveillance tape. Well,

Obstruction of justice, that's been prosecuted many, many times in many, many other circumstances. When you know you're being investigated and you destroy evidence and the government finds out, you get prosecuted. And so there's, you know, the actor here, a former president, that's unprecedented. But these charges are well rehearsed, well known to the Department of Justice. And are you as optimistic with the judge that ended up with this case that that goes to trial and that Jack Smith dies?

I don't know that that will go to trial before the election. She did set a trial date, May 20th, but she has since then been very, very slow. We just today got protective orders with respect to both Donald Trump and—well, not protective orders because there's so much classified information at issue here. You can't just, like—

turn over all this discovery to his lawyers and say, go, you know, look at it. You have to have a protective order that says they have to be cleared, have security clearances, and they can only look at materials in a special sensitive compartmented information facility or a SCIF and, you know, all these things they have to agree to. And it's been months

Months. And finally, we have that protective order, which means the classified information wasn't able to be shared until now. So it's already injected delay. We have had outstanding motions for a conflicts hearing because attorneys for these aides, Walt Nada and D'Oliveira, also represent other parties.

Former and current Trump employees, some of whom are expected to give very damning testimony against the very people represented by their same lawyer. And that's a problem. And so she hasn't ruled on these things. She hasn't even had a hearing on them. So her ability to delay things is troublesome. I do think that if and when, like, ultimately...

Unless he becomes president and the whole thing is, you know, dismissed. If it goes to trial, the evidence is overwhelmingly strong based on the allegations in the indictment. And this is the...

importance that Judge Chutkin put her case, the D.C. case, first. Because, you know, if she did it, she said, you know what, I'm going to slot it in right after Mar-a-Lago, she's then hostage to the slow rolling. Because the things that Mary is talking about, a protective order, a conflict hearing, these are routine. I mean, this is the kind of thing a judge just does immediately to get the case moving. And especially in a case like this, where the eyes of the world are up

And so having Judge Chutkan realize this has to go before is, you know, she basically was like, I'm not going to have to deal with that. And then she obviously called Manhattan and talked to the judge there. And I think I think the judge and the DA here deserve an enormous amount of credit for saying just because we brought it first, we're not going to stand in.

you know, in your way, knowing that this isn't more important, the DC case is more important. I want to give both of you a last word on, on what the podcast is. It's called prosecuting Donald Trump and it kind of rolls off all of our tongues, right? Like there were four indictments. I work in television. Three of them happened in the summer. So there was a lot of skin to get indicted this week. I can get a flight. It's, you know, there were a lot of logistics, right? So you lost, you lost some of the like, Holy, you know what? Um,

It feels like that's something that should never roll off any of our tongues, right? Prosecuting Donald Trump. He's someone who millions of Americans voted for and maybe more importantly would vote for again. What does it say about your life's work that millions of Americans would vote for someone again who's being prosecuted in four places?

Well, it's devastating. And I hope that if they listen, you know, sometimes we make jokes and sometimes we're light about things because I think we all have to have levity in our life. But we also oftentimes come back to the gravity of the fact that we even have a podcast called

called prosecuting Donald Trump. Who would have ever thought that that would be necessary? And one of the things we really do try to do is talk about the legal issues and the strategy and the law so that hopefully people who are coming in with an open mind, even if maybe, you know, favor former President Trump, maybe you,

think he had great policies, maybe you even think that there was a fraud in the election, that if you listen, that maybe you will learn something about how these statutes operate and how what he did, at least based on the allegations, was criminal, was unlawful, and more importantly, is a threat to our democracy. It's really just, especially the January 6th-related cases, both of them, they just go to the heart of our democracy. If you can undermine the will of the voters...

and prevent the peaceful transition of power. And that's exactly what was attempted here. That was exactly what the whole scheme was. You've lost the democracy. And so, you know, it sounds...

hyperbolic, but it's just not because that's the reality that we're in. So I hope people will appreciate that what we're trying to do is really explain, you know, how the laws work, how the criminal system works, what the rights of the defendants are, and why it's important that they get due process and they get a fair trial. And neither of us don't want a fair trial, but we think that a jury who listens to the instructions of a judge should find guilt in these cases.

assuming the government can prove what's in the indictment.

It's really hard to top that. I mean, it's totally right. I mean, that was sort of the idea of this was to for people who are not sort of living this day to day. And there's just so much arcane material. I mean, we were talking about just even the last 12 hours. Fannie Willis is definitely keeping us on our toes because there's so many filings and there are a lot of new issues. And so a lot of this is explanatory. So that's sort of the what I call the micro issue.

of sort of walking people through this so they can have some tools to understand it. And that's where we've just been prosecutors for so long and have sort of similar careers with different emphases. So it sort of helps guide people through that. And we can sort of help with sort of the judgment calls that are being made and strategy calls. So that's sort of micro. And the macro, which I think

because we've been in the department for so long and the reason we were in the department is why I think it's probably some of the reason that we have levity because it's very hard. It's nothing to make light of. And I think

That the biggest lesson from the Trump administration is that things that I took for granted that were constitutional rights or in my and Mary's world norms as to the Department of Justice as to how you behave changed.

that that's all evanescent and that things that you just thought were fundamental to America aren't. And that someone just said, I think it was the president said in Alaska, I think, was it just yesterday, that it's something that every generation has to fight for. And unfortunately, I mean, I think that's right. And I think that we're living through that. And I think

We're going to live through that. As I said, I think regardless of what happens with Donald Trump, it's going to stay with us and it's going to be an existing struggle to deal with that phenomenon of making sure that values that we care about remain core American values.

That can be topped. I just have to say, as a news host, we stalked both of you long before your government service was over. And just that you all have access to them is such a gift. They're people who know the insides of the institution and do what they do because it's the right thing, not because of any political outcome. So thank you both for using your platforms and for coming on our show and doing your podcast. Thank you so much. Thank you for having us. Thank you.

Thank you so much for listening to the special bonus episode of Prosecuting Donald Trump. And a big, big thank you to the 92nd Street Y for hosting us. Please join us again for more updates and analysis as the cases go forward against the former president.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Aaron Dalton and Katherine Anderson are our engineers. Jen Maris Perez is the associate producer. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC Audio.

This episode was also produced with help from Ellie Fox and Patrick Priblick from the 92nd Street Y. Search for Prosecuting Donald Trump wherever you get your podcasts and please follow the series.

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.