Cannon, Cameras and Accountants
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Hi, and welcome back to another episode of Prosecuting Donald Trump. It's Monday, November 13th. I'm Andrew Weissman, and I'm here with...

my wonderful co-host, Mary McCord. Mary, it was so nice to see you live last week in person at NYU, but we're back to seeing each other by Zoom, which is too sad. Of course, by the way, everyone knows Mary comes and teaches every year at NYU. And once again, Mary,

Mary, the very next class, the people were just, it was like a mosh pit. You should have been there to like have them carry you out. Oh, gosh. It was amazing. Too much flattery. It's going to go to my head. It's going to go to my head, Andrew. It was a good group of students. So informed. Yeah, it's a great, great group of students. But you're unbelievable.

Anyway, there's a lot to cover. Donald Trump is keeping us very busy. I'm here in New York. And as people know, the defense case in the civil trial against the Trump organization, Donald Trump, Donald Trump Jr., Eric Trump is continuing. And this morning, Donald Trump Jr. is taking the stand in the defense case. So we're going to talk a little bit about sort of what to expect.

but then move on to events in the former president's criminal cases. Yeah. And, you know, one of the big things that happened last Friday, so it got a little bit buried, I think, in terms of the news, is Judge Cannon ruled on a motion that Mr. Trump had filed to sort of delay all of the dates, all of the pretrial dates for motions, but also the trial itself. Now, Judge Cannon denied the motion to postpone the trial date forever.

for now, but she did delay many, many of the other dates. And I think as we get into that and talk about it and dissect it, it seems like really it's pretty inevitable that what this is leading up to is a postponement of that trial date. So we will spend a good amount of time really explaining

the ramifications of her ruling on Friday. Yeah, I totally agree with you that that is sort of a sleeper story that hasn't gotten enough attention, what she's up to. I'm trying to not be triggered the way I was last week.

But I have noticed that as soon as you said the two words, Judge Cannon, like I am starting to have a Pavlovian response. The blood pressure went up. Yes. Yes. Well, it will when we talk about that order, because as you and I have chatted, there's a lot going on there. I'm super anxious to see.

convey that to people because I don't think people understand just exactly at least what I think she's up to. But then we're going to turn to D.C. and the trial scheduled still for March 4th. So that's the first criminal trial that's scheduled in D.C. And there's a lot going on there, both in terms of media outlets that have

sought to have cameras in the courtroom. And we'll talk about Donald Trump's shenanigans with respect to that, how he flip-flopped really similar to what he did before Judge Cannon. And it's going to relate in part to the so-called gag order, the bail restrictions that we've talked about that are now on appeal. But with that, Mary, should we talk just a little bit about the defense case and why it is

In the New York civil case, Don Jr. is testifying when he's already testified

in the state's case, they called him as what's called a hostile witness. But now he's testifying as a defendant. He's the first witness. In his own defense, right? Yeah. Right. But he's already testified. So what's going on there? Yeah. People may think that doesn't really make any sense. And, you know, I do think there will be some redundancy in his testimony. But the way the rules of evidence work is that when the other side calls a witness, normally you can only ask

non-leading questions of your own witness, right? Questions to where you're kind of asking, what happened? And what happened next? And what did you do when this happened? And you let the person give a narrative. And it's usually cross-examination that the cross-examiner asks the leading questions that essentially posit the answer in the question and really call for a yes or no. And the cross-examination does that because they're wanting to

poke holes in what the direct examination brought out by really suggesting answers and making the person commit to something, yes or no. Because it was the state that called Donald Trump Jr., and this is a civil case, so they can do that. In a criminal case, they wouldn't have been able to do that if he didn't want to testify. Because of that,

They were able to have more leeway and ask more sort of leading questions in direct because that's something called like the hostile witness rule. But nevertheless, his own attorneys are limited then and would have to cross-examinate within the scope of the direct. So they can't start talking about something else that the direct examination didn't cover. Right.

And my understanding was he wasn't even cross-examined. So, you know, his own attorneys, Mr. Trump's attorneys and his attorneys decided we're not going to cross-examine. We're just going to wait for our opportunity to put him on as, you know, our first witness in our affirmative defensive case. And what I think you'll hear is a lot of these open-ended questions that allow him to just kind of go on and on and on. Yeah. I mean, I think that the strategy in terms of they didn't cross-examine Trump

Donald Trump. They didn't cross-examine Don Jr. They didn't cross-examine Eric Trump. That is, the defense could have done that and sort of tried to do it all at once. The one person who they did cross-examine was Ivanka, who is no longer a defendant. And my surmise on that is that she basically said, hey, I'm coming to this trial once, not twice. So if there's something you want to get out from

from me on your quote cross, do it now because like I didn't even want to be there. Yeah, I think that's right. So again, I do think there'll be repetition. They're trying to establish, of course, the same things they were trying to establish in their cross-examination of the government's witnesses and in frankly that the witnesses themselves were trying to establish John Jr., Eric and

And Donald Trump himself were trying to establish essentially that it was all up to their accountants to do the statements of financial condition. And with respect to Don Jr., he didn't really have significant input in that. And he relied on his accountants. So I think we'll hear more of that from him today.

Yeah, and I think something for people to keep an eye on, because the defense does need to address and the state needs to prove mens rea and materiality. That's going to be the battleground for...

these remaining causes of action is, as you said, this reliance on accountants. And I think a really good way of looking at that is if you use an accountant to do your tax returns, yeah, you can rely on your accountant, but only if

If you have been fulsome and candid with the information that goes to the accountant, if you've given them everything and then your accountant says, "This is how the tax rules work," obviously, as a layperson, you're unlikely to know the details. But if you've left out information, you can't then rely on the accountant. In fact, the accountant is entitled to rely on you. His advice is only so good as the information he's given, right?

As you, I think, have said, garbage in, garbage out. Yeah, that's right. By the way, this is like my Brooklyn legal expertise. It's like, you know, years of higher education. Like, I went to all these fancy schools so that I can say things like garbage in, garbage out. Yeah, well, you're right. I do think that might have came from me on a different day because I did not go to fancy schools. So there you go. Yeah, yeah. You're just a plain country lawyer, Mary. Yeah.

So let's turn to the Judge Cannon order, because we'll be coming back to the civil case as it progresses. So Judge Cannon's just table set, level set. Everyone knows now all those DC phrases. Donald Trump, as this is wont and is typical of any defendant, tries to say we should put all these dates off, including the May 20th trial date. And Judge Cannon agreed to put off

all of these interim dates of when things will be due. More on that later, because there's a really significant thing that she changed with respect to classified documents. But she said with respect to the ultimate issue everyone's focusing on, which is the trial date, she said it's denied without prejudice and that she will consider it on

March 1st. So she didn't say it's really denied. She just said it's premature and she will be addressing this on March 1st. It's really important to note that. I'm going to give you a preview, like a spoiler alert as to the IMF's

impact to me of what she did there, which is, and Mara, I'd be happy to know if you think I'm being too cynical, by not dealing with the trial date now, but saying, I'm only going to deal with it on March 1st, where I think the writing is on the wall that this is going to get put off. She's usurping that date. She's a blocking date.

of May 20th. So if you're the Georgia district attorney, Fannie Willis, if you're the Georgia state court judge, that date is taken. You can't now schedule that date. You may be able to do it in March, but the later it gets, the harder it is for Georgia to slot in. You can't just be, oh, wait a second, the date opened, next week we're going to trial. Like you have to have

planning. So by her saying, I'm not doing it now, she is blocking that spring timeframe from the Georgia date. So I don't know whether that's her intent, but it's certainly her effect.

that it is blocking the ability of the state to go forward then. Yeah, I had the same reaction when I read this on Friday. And remember, even though Fannie Willis in the Georgia case was ready to go to trial against two defendants, Sidney Powell and Kenneth Chesbrough, last month in October, both of those defendants pleaded guilty. And there is no other trial date so far for the remaining defendants. We've also had some additional guilty pleas.

So that pool of defendants to go to trial is getting smaller, but it's still a very significant number of people that have to have a trial date set. I have not seen her seek a trial date, and I haven't seen the judge yet ask for her to propose a new trial date. But as you said, if she were to come in now, if Judge Cannon had just gone ahead and saying, I'm vacating the May 20th trial date, what we're going to do is we're going to go through this new process.

motions, a scheduling, and then on March 1st, I'll set a new date. Or even if she vacated and said, I'm going to set it out two months or three months, I'm going to set it for July or August. Then Fannie Willis could have gone to the court and said, let's do this in May. Strike while the iron's hot. This is opened up. Let's go.

Right. And so some people might be thinking, OK, well, if on March 1st, Judge Cannon says, now I am going to vacate that trial date because now it's clear to me from the motions that I've been addressing over these last couple of months, the defense can't possibly be ready for trial May 20th. Why couldn't Fannie Willis slide in then? Now, it could be she'll decide she could, but that's not the case.

That's short notice, right? Because remember, March 4th is going to be the D.C. case. So assuming that goes, she'd be wanting to come in and start after that. She needs all of her witnesses to be prepared and have these dates ready and the case ready to go. So it's putting her in a very difficult position in terms of being able to propose a trial date. Now, I will say, remember, this is a person who was prepared to go to trial on a speedy trial basis.

time frame and so clearly knows how to put together a case quickly, which is some solace. Right. But just remember, the defense lawyers, though, understand this. So they could have conflicts. They could have other trials. It is hard to pick a trial date in the future. You need a

a lot of time to make sure it's blocked out because those defense lawyers will say, "Judge, we can't do it. I have all sorts of things coming up." "I already have other things." Yeah. And the judge might say, "I've got trials on those dates." Yeah. Again, the delay in when she decides, it definitely helps Donald Trump in terms of not having another trial slot in. Putting it off. Mary, there was another piece that I thought was really interesting, and I'd be interested in whether you think I'm over-reading.

One of the things that the judge has in her scheduling order, how she sees the litigation proceeding with respect to the classified information. Let me just give you one little Freudian slip, which I didn't notice, but someone pointed out to me, which is not once, but twice in her

setting out of when things are due and when people are going to do things, she left out the government having time to submit an opposition. And I just thought that was, in terms of her mindset, it was like, oops, your bias is showing. Because it happened twice that she didn't put in the normal procedure, which is somebody makes a motion, someone's entitled to oppose it. That's just sort of a standard thing. And she omitted that. But getting to the substance,

And this is a little bit in the weeds. Normally in sort of what's called Section 4 of SEPA, the Classified Information Procedures Act, there's an ex parte piece of this, meaning that only one side submits something to the judge and it's not submitted to the defense at the same time. And in fact, Donald Trump made a motion saying that shouldn't be the procedure when he litigated that in D.C.,

And the D.C. judge, Judge Chuckin, rejected that, saying no court has ever ruled that way. Let me just interrupt for a minute to make sure people are tracking on what Section 4 is, right? So part of the reason this is ex parte, and it would make absolutely no sense for it not to be ex parte, is the SEPA Section 4 hearing is when the government says, OK, we've gone through all of the classified information that

is arguably discoverable. In other words, arguably relevant to preparing the defense or exculpatory or, you know, tends to undermine other evidence, everything we think that might have to be discoverable. And there are some things here that are so sensitive that we want to go to the court and make arguments either why we think it should not be

turned over to the defense because we actually think in reality it's not really relevant, or we want to do some sort of substitution. We want to substitute a summary or substitute a conclusion as opposed to handing over the raw intelligence.

or they want to just redact certain things from a document, they're still going to turn it over and they want to redact certain things. So this is their opportunity to go to the court and say, here are the things we think we might need to turn over, but we have issues with because they're so sensitive, they're so highly classified, and the intelligence community won't let us do it. Sometimes that's what they're saying. Court, work with us on what we can do here.

So it's kind of crazy to think that that's something that because it's so sensitive that you're going to then have defense counsel being part of that same argument. Right. But that's what we're talking about. That's exactly what Judge Tutkin said. She didn't use the term crazy, but she might as well have because she said every court has ruled the same way on this, which is it defeats the purpose. Right.

But if you look at what Judge Cannon did, not Judge Chutkan, but Judge Cannon, and this is before the motion practice on it, so she hasn't heard the arguments on both sides. She has set aside...

two days for a hearing on February 15th and 16th, a hearing on Section 4 motions. And if you look at the sort of schedule before that, you can't say that she's decided, but it is unusual to say the least that there'd be a two-day hearing.

hearing, unless she's really thinking this will only be the government meeting with her, but like two days of that? I mean, it just seems impossible. Yeah, I think there's two other really significant things. In her previous scheduling order, she had the government filing their Section 4 motion on October 10th, any defense challenge to the ex parte filing the same day, October 10th, and one week later, the hearing.

Now, she's got the government filing this on December 4th, defense any objections, December 4th, and she's giving herself almost two full months, actually more than two full months, two months and a week before the hearing. So she's extended that time from seven days to two months. And remember, no further discovery will take place. None of the other SEPA Section 5 or SEPA Section 6 activities

hearings can take place until she has ruled on the SEPA Section 4, because that's what then determines finishing the discovery. Then after that, Section 5 is when the defense says, here are the things from discovery we want to introduce.

Section 6 is the government arguing about whether they should be able to introduce this or not, which is another reason why I think you and I, Andrew, are feeling pretty pessimistic about the May 20 trial date. Because if she hasn't even had her hearing on Section 4 until the middle of February, all those other things have to happen after that. And so this order is kind of veiled in like, oh, this is voluminous. There's so much work to do. But when you dissect it and pull it apart—

Like you say, the writing is on the wall. It's also curious to me why she needs two months when it's just her reviewing things. Oh, wait. Mary. Mary. I know why. Yeah. Yes. I can think of a reason. Yes. Yes. We can all, you know, just make that assumption of the reason. But...

She puts in her order that, you know, it's voluminous and it's going to take her time, blah, blah, blah, blah, blah. But the interesting thing is, remember, this is a mishandling case. So in many ways, the actual substance is much less at issue than whether it was handled appropriately under law. So...

You know, that's another reason needing two months to think through all of this and dissect it just kind of feels like it's putting some window dressing on just building two and a half months into the schedule. Yep. So bottom line is it's lots of needless delay or unexplained delay in the schedule that

The substance of her ruling seems to suggest that she's going to not keep the Section 4 material ex parte, which means the government would have to appeal it. That would delay the trial and keep it late. And she's still, by keeping this date, is blocking any other trial for that date. It's like a sports analogy. Yeah. So all in all, this is why when this came out, I was like, people are missing the story here. Yeah.

I knew, Mary, because you've done these cases, you would be reading it the same way. More prosecuting Donald Trump. Canon, cameras, and accountants in just a moment.

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So there's two things that relate to each other that are in DC. There's the motion by some media organizations, Note,

NBC is part of those media organizations, and this is a podcast sponsored by MSNBC. So just note that that is something that's out there. Mary and I are still going to tell you exactly what we think. Shh, it's just between us. Yes, right. Nobody will know. Yeah. So the media wants to have cameras in the courtroom.

And we're going to talk a little bit about that. It does relate in part to the gag order that is on appeal. And I know, Mary, you want to talk about that relationship. So this issue of the media motion to have cameras in the courtroom is one. Let me just tee up the problem here, because it's so reminiscent of the thing that triggered me last week about Donald Trump.

Donald Trump being less than candid, in my view, with Judge Cannon and her not being upset in any way. Or by the way, in her order, she does not address it at all. Zero. There's not one word about their behavior. Zero. I have to tell you, in the courtrooms I've been in, like,

I always use this phrase that a judge would have told me, come to court, bring your toothbrush. Yeah, right. I've heard that multiple times. Meaning, like, be prepared to be remanded. So here, the government about now 10 days ago was asked to submit its position, and they represented that Donald Trump was inhumane.

essentially taking no position on cameras in the courtroom. And they made that representation based on their conversations. Because they said they had reached out and talked to his attorneys, right? Yeah, exactly. And that happens all the time where it's like one party represents the other. And in good faith, you tell them. In fact, in D.C., you're required to ask the other side's view on a motion.

Now, Grant, this wasn't really a motion by the government. It was just a filing in response to the motion by the media coalition and NBC. And so the government represents that Donald Trump essentially is taking their position. But the government's position was essentially we're not open to...

to the policy issue of what we would do if we were riding on a blank slate, their position was the law just simply doesn't allow it. And they set out the rules governing the federal rules of criminal procedure that govern here. And the

laid out basically district judge, whether you like it or not, and we're not dealing with that, it's just not allowed under the rules. And I actually think they're right. I mean, I personally would love to see cameras in the courtroom, but what Donald Trump did that is problematic, which is he then, after seeing what the government wrote,

submit something saying, oh, now I'm for cameras in the courtroom, which is just sort of like, excuse me? I mean, it was so clear that he knows it's not going to be allowed. And he just wants to be able to say, hey, I was for transparency and the government wasn't. And he doesn't address at all what changed, like why he represented transparency.

something different eight days before. He not only says, now I want them. I mean, he basically used several pages of his filing to do what he's been doing every time he files something and every time he speaks. Call this trial a political prosecution and a political persecution by his opponent.

in the presidential election and that everyone should be able to see this charade of a trial, a sham, I think is the word he called it, a sham of a trial. He actually compares this to like authoritarian regimes where trials are not real. They are sham trials. It's a pretty outrageous, bombastic filing. Again, just really accusing, you know, without any basis, in fact, this being sort of a bystander

Biden administration prosecution as opposed to a Department of Justice prosecution. Yes, Department of Justice is part of the Biden administration, but it's been made clear over and over and over again that President Biden had nothing to do with any of the decisions about this prosecution. So this was, I think, again, Trump's way of saying, here's another way that I can file a piece of paper that talks about what a travesty this has been.

And so that's why the government has now come in and said, can we get permission, Your Honor, to file a reply to that, to respond to some of the things that Trump said? Because Trump didn't actually file a substantive legal argument. He didn't argue about what the rule says or whether the First Amendment actually makes the rule unconstitutional with respect to

barring cameras or broadcasting of trials. He didn't argue any of that. He didn't cite any law, says the government. All he did was, you know, make these sort of arguments about a political prosecution, and they want to be able to respond to that. Mary, as we're speaking, Judge Chutkan just ruled on the application you were referencing, where the government asked to respond to

Donald Trump's reversal of his position. And what Judge Chutkan said is that's granted. The district court routinely grants such motions when a party is unable to contest matters presented to the court for the first time in the last scheduled pleading. And here, the judge notes that the United States would not otherwise be able to contest

the reversal of the defendant's position earlier conveyed to the United States. So she's very aware of Donald Trump initially saying one thing and then changing his position. So she's allowing it. She says it should be nowhere than five pages and it should be submitted by tomorrow. But just to back up for one minute about, you know, the substance of this application by the media organizations, essentially they're saying is we know there's a rule, Rule 53, which bars

broadcasting from the courtroom. But we think that, first of all, as a matter of policy, it's so important for the American public and really the world to see this trial. And secondly, that under the First Amendment, they have a right to see this trial. And we should be clear, the Supreme Court has held for a long, long time that the public has a right to access

including criminal trials, a First Amendment right. But the courts have also held every time that this has been raised that Rule 53 does not infringe on that right of access because you can come to a courtroom and you can go in the courtroom and you may have to wait in line because a lot of people may want to have a seat in that courtroom and it may not be big enough. But

you know, you do have a right to public access and that right to public access does not mean it has to be a right to broadcast it. I think we could have an entire episode talking about sort of this First Amendment argument, but that is the state of the law right now. And actually, NBC makes another argument, which is that there are some ways you might be able to get around Rule 53 if you sort of fed the camera to a studio and then the studio broadcasts like

a very super literal reading of the rule, no broadcasting from the courtroom. But there are, I think, legitimate sort of First Amendment rules

issues to raise here and times have changed dramatically. But the thing that I think both of us want to tie this to is if I'm the government, I'm very, very concerned about this being televised, not because I don't want people to see it, scrutinize the evidence, but I'm worried about my witnesses and I'm worried about the jurors. Now, the jurors wouldn't have to be shown. There could be limits on showing any faces of jurors, but witnesses would be shown. And this is how it relates to the gag order, right? We're talking about

witnesses who already have been harassed and threatened and intimidated before it's even known for sure that they're going to be witnesses. And even though some of these people might be people in a position to have security or protection, some will not. And can you even imagine the amount of vitriol and attacks and intimidation, not only that Mr. Trump would try to, depending on the status of the gag order, that Mr. Trump would engage in

during the trial. But then when people are able to see those witnesses, you know, we know that call and response, the likelihood of someone actually taking action and, you know, threatening or worse, committing an act of violence against a witness is something I would be very, very, very concerned with if I were the government and if I were the court.

Yeah, absolutely. So I agree with you that there are lots of arguments and concerns about the First Amendment issues. I just think if you're Judge Chutkin in terms of what's presented to her, I don't think she has any discretion. I think this is decided. But I think if we were deciding the policy and what DOJ, what they would want if writing on a clean slate, it is a complicated issue. It's not an all good or all bad issue.

And DOJ didn't write the rules, by the way. Yeah. Oh, yeah. Of course not. It's the judiciary that writes the rules. Yeah. This is based on a panel of people who've looked at this overseen by the chief justice of the Supreme Court. So just trying to stay calm about the former president's language over the weekend was not

not just reminiscent, but used the precise language used by Hitler to describe Jews, Roman people,

homosexuals, artists who he viewed as degenerate in describing them as vermin. And I know as soon as you compare language to Hitler, Mussolini, people go bananas. And of course, no one's saying that anybody is seeking to have the extermination of 8 million people. But the language, just to be accurate, the language tracks identically. Just on a personal note, I mean, one of the reasons that the

the weekend we'd marry was so upsetting to me. It was, I come from a family where my father and my grandparents fled Austria, actually after the Anschluss and the borders had closed and they managed to get out. And that's not true of anyone

about half of my family. And so I feel a deep personal connection to it. And it is the idea that we're living through a time where that language is that triggering to something that is so hard. It reminds me of something Obama said after Charlottesville, where he said, "How hard is it to condemn Nazis?"

when he was talking about the former president saying there were good people on both sides and we're living through that again. And for that language to be used at a time where I'm not trying to discuss everything that's going on in the Middle East and the complications there, but for Jews in Israel and around the world, it is a very emotionally sensitive time in terms of their existence and

the antisemitism that we're seeing. And again, I'm not trying to say it's exclusive to them and I'm not trying to delve into the whole top-grade issue. We've talked before, right, how things are feeding into anti-Muslim, anti-Arab as well. But yeah, antisemitism is off the charts right now. Hate speech. That's right. And there's no real other way to look at those comments because they track so closely and it's not his first time.

Exactly. It's never a good context, but the idea that it would

be now is one more very worrying aspect of what we are facing. And the language about how people would be treated in terms of talking about Jack Smith continuing to deride him as deranged, talking about his family. And his family, yes. Exactly. And how they hate him even more than Jack Smith does. The vitriol, I think, is so concerning

not just for the trials, but in terms of the big picture. This is not a plug for my book, but John Locke famously said, "Where law ends, tyranny begins."

And it is so applicable to Donald Trump in terms of what he has said he wants to do to the Department of Justice, to civil service, to how he wants to use pardons to pardon people who commit crimes that he approves of. Meaning, like, all the January 6th defendants, he has said that he was going to use the pardons that way, that he is going to essentially extinguish and crush

anybody who speaks up. If that is not a threat to witnesses at a trial, I don't know what is.

So we are in very, very dark times, and there is a lot riding on the March 4th trial and the appeals that we just talked about in terms of media access, gag orders, and the trials. Because if there's one trial that looks like it will go and can go and there can be a jury result, it's this one. That's right. That's right.

And next Monday will be the appellate argument in the D.C. Circuit on the appeal of the gag order. And so we're looking at our schedules to see whether we can wait and record on Tuesday so we can talk about that. But we will definitely be keeping everyone up to date on how that argument goes.

Mary, it's so nice to be able to talk to you because it's very calming for me because over the weekend I was a bit spinning out of control and I knew I was going to talk to you and needed to get myself tethered back to the law and reason. And there's no one better to do that with than you. Well, that's nice of you to say. Sometimes we spin each other up, but sometimes we can also calm each other down. So that's good. Sounds good. Okay. Talk to you next week. Absolutely.

If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more. The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers.

The head of the audio production is Bryson Barnes. Paul Robert Mounsey is our audio engineer. Ayesha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

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