Deep Dive
Shownotes Transcript
Thank you.
Hi, welcome to another episode of Prosecuting Donald Trump. It is Tuesday, February 6th. We always record in the morning around 10:30, but we're recording now around noon. Why? Because, as I'm sure everyone who listens to this knows, the DC Circuit has ruled on the immunity issue. So we're going to start with the discussion of that immunity decision. Mary and I have been reading that assiduously
and are ready to give you both a summary and our takes, and also, most importantly, what's next. Yeah. Which is the thing that we kept on saying we want to keep an eye out on, which is, what are they saying about the mandate? Handing the ball back. That's right. Mary, how are you? I'm good. How are you? And, you know, I think it was like 10:15 when I saw the opinion come down, and recording 15 minutes later was not sufficient for reading a 57-page
opinion. So we gave ourselves a little bit. Yeah, I don't read as fast as you apparently, Andrew, so I needed a little bit more time. So in addition to that, we're going to do what we originally intended to do. We will preview the very, very significant argument that the Supreme Court will hear on Thursday, and that is
about the application of the 14th Amendment, Section 3's disqualification clause and whether that applies to Mr. Trump, whether he engaged in an insurrection, which disqualifies one from holding an office.
And then we'll move on to a few other things as well. Talk a little bit about a recent filing in the Mar-a-Lago case and some other things that are on our radar. But the first two issues alone justify, almost justify their own episodes just by themselves. They're so significant. Absolutely. So this really is an example of why it's like a crash course in law school.
because we have a really significant decision in the D.C. Circuit. And then we're going to talk about a remarkable argument that's going to be happening on Thursday. But let's turn to the decision this morning. And maybe a good way to divide this is to talk about what they decided
and the merits of it. And then to have a separate piece on where this leaves Donald Trump, what to expect next, because, you know, just to preview what we had been saying all along was that the conclusion here, we thought there was no question that Donald Trump was going to lose. There was an issue about how he was going to lose, like what exactly they would
whether they would agree with Judge Chutkan completely or in a slightly different way. There was a jurisdictional issue. The key part of this that we were keeping an eye on is the second part that we'll talk about, which is where do we go from here? But with that, Mary, in your speed reading, since you're such an appellate lawyer, I knew that you would be cataloging sort of what the court did. And one of the great things about that is as I was reading it, I thought, oh,
oh, I don't have to worry about that because Mary is going to be able to give us a press C of the decision. So, okay, I think that's a good way to lay things down. Although we did tell listeners last week that the first thing we're going to do is see what the court did about the mandate. And so if we're going to make them wait, I mean, they got to listen to what the court said before we get to the mandate. It's like the dessert comes last, not first. That's right.
So one of the things I think it's also important to mention before getting into the substance of the ruling is that this opinion was pure curium.
And what that means is it is unanimous. And I think, you know, we've talked before about how we thought one reason that this opinion might be taking a little bit longer is because the judges would recognize the importance if they could agree and be unanimous and all the reasons for their ruling, it would be better just for the case.
and for people to have confidence in the judiciary and its rulings if it was unanimous. And it is unanimous. And I think that's very important. It also potentially, and we'll get to this later, can impact whether the Supreme Court is likely to take up this case. And Mary, what is the difference? I can think of a practical reason, but what is the difference between one judge
writing the opinion and the other two joining it, which would not be per curiam. It would be unanimous, but you have one judge writing the opinion, the other two saying, well, I agree with that. And a decision coming out saying per curiam, where there's no sort of single author that the other two join. So that's an interesting question. There are probably scholars that like write whole law review articles about this. I am not one of them, but frequently
Frequently, you'll see per curiam in cases that are completely the opposite of this one. Cases where the issues aren't that hard and they don't really require a whole lot of elaboration and discussion and all judges easily agree on the result. This is completely the opposite, right? Very significant issues. We may think the law is clear, you and I, and that the result here was the clear one that
that the law dictated, but it's obviously not nearly as clear as many other areas of law. And there were certainly arguments to be made on each side and were made on each side. Yet you still had the judges deciding that no one single judge was going to sort of take the credit for the opinion. I think they made a conscious decision to have this be per curiam so that it reflected their unanimity.
And you're right that even when one judge writes and the others join, that's still unanimous. It's not like that's less unanimous. Occasionally a judge will say,
I want to write separately to say I concur separately for some different reasons. We didn't have that here at all. All of them agree apparently on everything. I'm going to give you my take. Two possible reasons that I think it would be per curiam, which relate to what you're saying. And I think of it in many ways the way a jury comes back. That is a decision by the jury.
Not 12 individuals. It is the consensus and the jury is speaking as one. That's right. And this was a way to say to Donald Trump and his followers, this is a court decision. Yes. This is a group decision.
This can be picked apart by saying, oh, I disagree with Judge Henderson. That's right. Or Judge Pan is wrong. The court speaking as one rather than an individual one. I also think it is, again, that's just my speculation. And my second speculation is everyone is very aware of judges facing threats, strafing.
It's true, too. Death threats when it comes to Judge Chutkin, swatting instance, a whole series of things that are deplorable conduct. This does help remove that targeting. Puts a little distance there, right? There's not any single judge who can be targeted. That's a great point. Yeah. So anyway, with that, Mary, what were the various components of the decision? Right.
So there's the decision proceeds really kind of along four lines, four legal conclusions that the court has to reach. And first is, can the court even take this up on an interlocutory basis? Right. That's where and we've talked about this before, where you don't have to wait until after a trial is convicted. Wait, the people who the people who follow this, they know that. Right.
Are you kidding? We're in prosecuting Donald Trump 2.0. Yeah, I was going to say, like, you know, we're like in the 300 series of college courses. We're past the 100 and 200 series. Right. So, you know, the question is, usually you have to wait until after trial, after conviction, then you appeal on all the things you think were wrong with the case against you. So first, the issue the court took up is, can we hear this now? Or does Donald Trump have to wait until it's over? And what the court specifically spent...
several, quite a few pages talking about is an argument that wasn't even made by Mr. Trump or the prosecution, Jack Smith. It was an argument made in a friend of the court brief called an amicus brief filed by American Oversight, one that we talked about a few weeks ago, where they had argued that a Supreme Court case called Midland Asphalt says that you can't get a
immediate appeal unless you're relying on an immunity that is explicit in the constitutional or statutory text.
And I have always thought that was an overreading of Midland Asphalt, which nothing about that case required them to decide whether there was an immunity explicit in the constitutional text, because that case was about somebody saying, oh, there was a violation of a grand jury secrecy rule, and so my indictment should have been dismissed, and this case should be dismissed. That's very different from immunity, which is about whether you even have to stand trial at all. And so with the court-
Can I just say what? Sure. Sorry to interrupt. This is one where, although we both got it wrong in terms of the timing, you got it right on Midland to say the court would accept jurisdiction. Called this one. So batting 500. Yeah. But basically, on the first point, I mean, it's a very intricate discussion, but I take it basically the court says, we have jurisdiction to decide this now. We don't have to wait.
That's right. So I'll give the very quick overview of the others and then we can dig into them. The court then moved on to, OK, what are Mr. Trump's arguments about why he should be immune? They first reject his executive immunity argument that was this one based on separation of powers. They're saying separation of powers does not bar criminal prosecution for every official act.
and certainly not those that are either required by law or in defiance of law. And here, where Mr. Trump is defying generally applicable law, Congress has expressed things that are unlawful, that does not immunize him, even if you could take a broad view of his official acts and say that what he's accused of doing here was part of his official acts. Because remember,
He had said everything is really just about me communicating about fraud in the election, me communicating with state legislators and state election officials, me communicating with my own vice president, me communicating with my own Department of Justice. These are all part of my official acts. Court says whether it is or isn't part of your official acts, you're not immune from it.
They then went on to say, are there functional policy considerations that are illuminated by history or the structure of government or our constitutional structure that mean we should just, even if executive immunity isn't required by the Constitution, that we should oppose?
apply it here anyway. And some of the arguments that Mr. Trump had made was if you don't provide immunity, and he said this so many times, like I say, Mr. Trump still says it. He still says his attorney said it in their briefs, but he's out there, you know, every time he speaks saying presidents have got to be immune. You know, he says it constantly that it would chill what they do and chill them in the exercise of their presidential responsibilities if they weren't immune from criminal prosecution and also that it could result in
in just constant political persecution of prior presidents through prosecutions. Court rejects both of those, saying that's speculative, it's not borne out by history, and the policy actually on the other side of holding presidents accountable for criminal acts is more significant.
Can I just say on that, and they cite Judge Chutkan saying criminal law here has this salutary effect. They really go and cite exactly what she said.
A huge vindication of Judge Chuckens' decision on that point. Yes, absolutely. And their final legal conclusion is rejecting Mr. Trump's argument that under the impeachment judgment clause, he can only be prosecuted if he had been convicted by the Senate. And of course, here he was acquitted by the Senate.
Many of those voting to acquit saying they were doing so because they thought that they didn't have the power to impeach and convict a former president and instead he should face criminal prosecution if there was going to be any penalty. The court rejected the argument that you have to have been convicted by the president.
by the Senate before you could face criminal prosecution. So that's sort of the sum of the four major parts. On that last point about the impeachment clause, where the whole argument was there has to be impeachment and conviction first before it could be prosecuted, that was described by the per curiam unanimous decision as irrational. Irrational. And it said that that would lead to a president being able to commit
all manner of crimes with impunity. I mean, it was scathing with respect to that argument, just saying there's no way, no how that that would apply. This decision is one where I really would commend people to read it. I know that the jurisdiction point, that part's maybe a little dense for people because it's very much in the weeds and a law point. But the big picture here is something that I think everyone should read.
I agree. And it's understandable. It is such a foundational decision with so many notable quotes. I think we should talk about what this means, but there are a few key pieces I think we just need to quote from. And one relates to the title of this episode, Citizen Trump. And it's right on page three. Is that one that you had marked?
I was joking that this is a decision sort of made for television and podcasts because there's just so many wonderful, evocative quotations from the court that bring us back to what it means to be a nation under law. And one of them, absolutely, Mary, that stood out to me was, as we call this episode, Citizen Trump is the court citizen.
saying just that, quote,
End quote. That's just that's at the intro. The other quote, which I thought was sort of summed up the decision, but there's so many aspects. And I wonder, Mary, whether you had this on your dance card of issues is the
The court's describing what is alleged here in the indictments, and it's clear what they're saying, particularly if it's now proved at a trial, what it would mean. It says, "...former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government."
He allegedly injected himself into a process in which the president has no role, the counting and certifying of the electoral college votes, thereby undermining constitutionally established procedures and the will of the Congress. And then it goes on to talk about immunizing somebody for that conduct is not something that can be countenanced. Yeah.
Yeah. And that reminds me that the court said early on, we are rejecting the notion that presidents are absolutely immune from criminal responsibility, both sort of as a blanket facial matter, but also as applied here. And they many different times throughout the opinion, but particularly when they got into some of the policy considerations, did photocopy.
focus on the facts here, what is alleged to have happened and how this would be, you know, so undermining of democratic processes and, like you said, the will of the people to not have there be accountability for this. Mary, yeah, what else, what did you have in your dance card? So, during the court's discussion of why this...
overall absolute executive immunity should not apply, the court reached back to an 1882 U.S. Supreme Court case that starts with, no man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
And it goes on, I won't read the whole entire quote, but we've said this so many times. And I think it was the court recognizing that even under our system, and maybe particularly because of our system of separation of powers, even the executive branch, the commander-in-chief,
The person at the top of that executive branch is not above the law. And I think it was very significant for them to reach back in history for that type of quote. Now, they had all kinds of reasons for wanting to go back historically, as there always is. And I think it's important that they had to address some early cases, including cases we've talked about before, like Marbury, which suggests that the actions of presidents are not examinable. And they had to cabin that and they did so by other. Yeah.
Yeah.
above the law for all time thereafter. I mean, this is a resounding decision. Mary, should we take a break and then come back and talk about what's next, where the court leaves the sort of... Where things stand. Yes, let's do it. Yeah, where things stand. All right. Okay, we'll be back.
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So, Mary, it was fascinating to me what the court did here, because essentially they said by the end of the day of February 12th. Next Monday. Exactly. So short time. The mandate will issue by that time, by the end of the day on the February 12th, except if Donald Trump puts in writing to the D.C. Circuit that he is going to seek a
a stay in the Supreme Court. That he has already, has filed one. Right. Or he has filed it. Or frankly, he even could file not just a stay, but he could file a stay and his papers seeking cert. But essentially, he has a week to take action in the Supreme Court. If he doesn't, the mandate is going to issue. So obviously, there's no downside for Donald Trump because he wants delay.
to do that, but he only has a week to do it. The other thing I found super interesting, Marian, and be really interested in your take on this, and I have some speculation, which is they also say, by the way, if you want to come back to us, the DC circuit...
Essentially, they're saying, don't bother. Because, that's my take, they didn't use that language, because they say, if you seek to have this panel of three judges rehear it, there's not an automatic stay. Or even the whole en banc court. And then, yes, they say, and if...
If you seek to have the whole court do it en banc, that's like you want to have the whole court hear the case, not just the three judges. There isn't an automatic stay for that unless and until the whole court says we're taking the case. That's right. So that is a way of saying, you know what, you want help here on a stay, you got to go to the Supreme Court because we're not doing it. What I found interesting, and Mary, I'd be interested in your take as the appellate guru amongst this group of two,
Yeah. Is I think for the per curiam panel to have issued that they could say what they would do if you seek rehearing with us, we're not going to continue this day. But for them to say, if you seek the whole court to hear it.
there's not going to be a stay. It seems to me to do that, they had to have at least gone to the chief judge to be able to make that representation. I don't think they would make that representation on their own. And they could have, the chief judge could have gotten a sense of the court, that of the whole court,
that there wouldn't be an automatic stay unless and until there was a consensus in the court to take the case. Yeah. I also got the feeling that they probably had had some discussions with their colleagues about their comfort level in saying that. And this is significant because as we've talked about before, Mr. Trump would otherwise have 45 days before he even has to seek panel rehearing or en banc review. So he could have wasted those whole 45 days
and everything would have been stayed until then, even if the court immediately denied it, that would then start a whole new 90 days for him to seek review in the U.S. Supreme Court. So by saying the mandate's going to issue next Monday unless you seek a stay of the mandate pending the filing of a cert petition in the Supreme Court, they're basically bypassing that
first 45 day period and even bypassing the 90 day period to file it. Now, the Supreme Court can take its time in deciding what to do. I mean, it can't take too long, but it can take its time in deciding whether it's going to take the case or what have you. But all those long periods of waiting have just gotten compacted. Snip, snip, snip.
By the way, I do think, Mary, that that is a possible explanation for the delay. Just to vindicate you when you said, I think this is going to be decided in a week or maybe two weeks. Not to remind you, I do think that if they were going to be saying this about what the stay and whether there would be a stay if you went to the whole en banc.
that it is possible this opinion was sent around to the other judges. Now, there's to make that representation about whether a stay would issue or not, that the opinion was circulated so that if the whole en banc court was going to have to hear this, they had a sense of what the panel was doing. And it is an unusual case.
Because you'd want to have the courtesy of letting people see it, read it. That's right. Raise any issues they see. I mean, we're speculating, but it's informed. It's like educated speculation. Yes, exactly. That's our lives.
That's right. We try. So basically, big picture. Yes. Huge win for Jack Smith. Huge win for Judge Chutkan. And I personally would say huge win for American democracy. Absolutely. In terms of how our country should run. Incredible decision. Keep your eye out. Not so much on the next week. There's no question that Donald Trump will seek a stay in the Supreme Court.
and tell the circuit that he's doing that. But the next step is to keep your eye on the Supreme Court as to what they do with that petition, which is a perfect segue, Mary, to the Supreme Court. That's right. Something that's going to happen on Thursday. Right. And I'm going to give you a big picture. We're having an argument, regardless of which way this goes, an argument on Thursday about whether Donald Trump is qualified constitutionally to run.
You would think in any rational world, that discussion would be sort of moot because nobody would be thinking of voting for somebody who is arguably an insurrectionist, or at least has been found by courts and secretaries of state to have engaged in insurrection. And so you would think this would be moot just as a matter of why is he in this position to begin with?
And it very well could be if the Supreme Court says that he is qualified to run, that essentially the decision about whether an insurrectionist should be president, not can be president, will be before the electorate, which is whether somebody who engaged in insurrection should be president is one that we all get to decide, even if the court says that, yes, constitutionally, he can run because of various arguments that are being made.
There were recently, Donald Trump filed a reply brief and put in additional arguments. So the case is fully briefed and there will have arguments that are going to be
live streamed so you can listen in this Thursday, starting Thursday morning, Eastern Time. Yeah. And I really encourage people to do so. I mean, it's a wonderful and actually this development happened during COVID when the court was closed to the public that they started live streaming their arguments. And thankfully, they've kept up that process ever since even the restrictions of COVID have been eased up. And I think it's a great service
to not just Americans, but really the whole world to be able to get that kind of insight into how our justice system works by being able to listen to arguments in the Supreme Court. I think that we are going to hear a lot of questioning of both sides about so many different aspects of the way the 14th Amendment Section 3 operates.
As we've discussed before, the section, this is part of the Reconstruction Act amendments passed after the Civil War, and Section 3 in particular, prohibits somebody from holding any office under the United States if they have previously taken an oath as an officer of the United States. But the Congress can, I should say, if they are found to have engaged in an insurrection or rebellion against the United States, but
But Congress can, by a two-thirds vote, remove this, what they call a disability in Section 3. In other words, remove the disqualification. So there's a lot of issues here. I think we're going to be having a lot of questions of Mr. Trump's lawyers about their arguments that the presidency is not an office under the United States, that he wasn't an officer as the president, and that his oath was not the oath of
That is taken by others who are explicitly listed in that section, which is an oath to support the Constitution, whereas the oath that a president takes to preserve, protect and defend the Constitution of the United States is somehow different than an oath to support the Constitution.
the Constitution of the United States. I think you'll hear a lot of questions of Mr. Trump's lawyers about how could, does that really make any logical sense? And Mr. Trump's lawyers will be trying to point to other uses of the term office and officer in the Constitution. They will argue that the appointments clause by which the president appoints officers of the United States must mean that the president himself is not an officer because he doesn't appoint himself.
They'll talk about the use of the terms in the impeachment clause, the clause we've just been talking about. So they will be pointing to different other uses in the Constitution to try to suggest that that means the president is not covered by Section 3. But I think that just the reality and sort of the practical nature of what Congress was trying to do and what actually not Congress, but the whole population in, you know, enacting this constitutional amendment after the Civil War was trying to do,
was trying to make sure that insurrectionists who had been in office could not hold those offices again. So I think he'll get pressed on that.
I think his attorneys will also get pressed on whether it really is the case that Congress has to pass some sort of statute to implement Section 3, some sort of procedure, you know, that would provide for a mechanism of bringing a cause of action in court and putting on evidence and what the standard of proof would be and whether it's like a jury that decides it or a judge that decides it right.
Mr. Trump's argument is that Congress has to have done that, and without that, you know, it's not up to some state like Colorado to decide whether Mr. Trump can or can't be on the ballot. And also, Mary, the ballot point you'd made that Donald Trump is arguing, which is that the disqualification language is about holding office. That's right. Whereas the Colorado case was saying you can't even be on the ballot. That's right. And Donald Trump makes the argument that that's premature.
Because, for instance, he could be on the ballot, he could win Colorado, and even if the court thought that he was disqualified because he engaged in insurrection and ruled against Donald Trump on everything Congress could say by two-thirds vote, he's now relieved of that disability because the constitutional provision isn't just saying, oh, if you're under 35, for instance, you can't run for office. It reads,
If you're under 35, you can't run for office unless two-thirds of the Senate says, yes, you can. So in other words, unlike the other disqualifying provisions of the Constitution, this one has a clause that says that Congress has the ability by two-thirds vote to put you back in the position of being able to run so that removing him from the ballot would sort of be unfortunate and wrong because he could be relieved of that.
Well, they specifically say that's imposing an extra condition and qualification on the office that Congress didn't put on there and can't do that. The point you make, though, about the two-thirds vote raises, I think, one of the interesting questions that we will hear the court ask of the respondents, that is, the original plaintiffs who are Republican voters and other voters, independent voters who made this challenge originally in Colorado. And
And I think one of those questions will be, how is Mr. Trump supposed to figure out if Congress will rule that he's removed from disqualification if he can't go ahead and be on a ballot and get to the point where Congress can make that decision? Like, what would be his mechanism right now? Does he have to
to find a senator and a representative to introduce legislation that would then remove the disability, and he needs to do that before he appears on primary ballots or the general election. And I think it's gonna be a question they'll get asked because they make the very good argument that the language of Section 3 just presumes disability for having engaged in insurrection
and Congress can remove it. And if it didn't presume disability, it could have been worded differently and said, here would be the procedure for determining disability, and here's the procedure for Congress to remove it. But by only having the removal provision, it must be that you are just already disqualified. That's sort of the argument by the original plaintiffs now called the respondents in the Supreme Court.
But I keep puzzling on how would he get that removal before a decision about putting him on the ballot? And I think that's one of the questions that we'll see of the other side. Yeah. Among many. It's going to be a fascinating argument. I just want to caution people that both of us teach law. Simple language in the Constitution has many, many, many embedded issues. The
That's why we're lawyers. That's why we have a podcast to help explain this. The Constitution sets out things in broad strokes. It's not an indenture agreement between two major companies as to how this merger is going to go forward, trying to anticipate every single issue. So that is a long way of saying there are many interpretive issues for the Supreme Court
And Donald Trump, basically, to sort of boil it down, only has to win on any one of them, whereas the initial plaintiffs need to win on all of them. That's right. And so just as an odds matter, I just want to sort of caution people. Obviously, this is huge stakes for the country, for voters, but there are many legal issues. I have to say, I am not one of the people who says...
If you just are an originalist and apply originalist thinking, this is clear that Donald Trump cannot run for office. I think that there are many embedded issues here, and some are stronger and weaker than others. And I'm happy the Supreme Court's going to be addressing this because we haven't had this issue. But to me, there is a substantial chance that the court will say that at least on one of those, Colorado Supreme Court got it wrong.
Absolutely. You know, something that when we first summarized the Colorado opinion, I think we identified seven separate issues. Now, they've kind of morphed over the course of briefing the Supreme Court. And the one that I think we should probably save and talk about after the argument, but that plays a very prominent role in the briefing, is the central question, not about whether...
The presidency is an office of the United States, not about whether Congress had to do implementing legislation. But did Trump engage in an insurrection or aid and comfort? Yeah. Now, the Colorado Supreme Court said engaged in that's what they determined. But what does that mean? What does engage in mean? Right. Is incitement to an insurrection the same as engaging in it?
what even is an insurrection, although Mr. Trump seems to have a little bit dropped an argument he made below that it requires something more than what happened on January 6th. And it's interesting to me because there are both legal issues and factual issues here. Legal issues, what is an insurrection? What does it mean to engage in? But factual issues are the findings of what Mr. Trump did. Normally, the Supreme Court decides law,
but not facts. It deburs to the lower courts as the fact finder. And so there is a chance here that the court could say, we think the lower court applied the wrong law in terms of what it means to engage in, what an insurrection is, and we'll send it back for the trial court at the Colorado level to now apply this new standard and find facts.
But when you read the briefing, the parties on both sides and many of the Miki, the friends of the court, there's many, many, many, many other briefs that have been filed, are making a lot of arguments that go straight to the facts. Yeah, it's interesting because one of the things in reply that I thought was not a bad point that Donald Trump's team made, which is normally in an appellate argument,
there's a deference to fact-finding below. But that's because you actually are assessing the credibility of witnesses
Here, Trump made the argument, this is really a set of written material. There is no credibility finding that the appellate court is in the same position of assessing, for instance, the testimony of the expert as the trial judge was, so that the normal rules about deference to fact finding shouldn't apply.
I have to say, we'll get into this more. I'd be surprised if they go too far on the facts because I just don't think it's going to help the country too much by just saying we want to hear this again after they apply the right facts.
But we'll see. We are living through history. We have this incredible, remarkable decision that just came down from the D.C. Circuit. We're about to have this argument on Thursday, I have to say, for as lawyers. This is fun is the right term because there's nothing fun about the position. But it couldn't be more consequential and interesting. Super happy to be discussing this. Mary, should we take another break and then come back? I think we should.
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So, Mary, what do you have on your radar screen? And I know we have some other things we wanted to talk about. So what's up? So some of these are things that have been filed and not so much on radar. But one that we would have spent more time on today, but we don't have it, is there wasn't, I think, a pretty substantial filing in the Mar-a-Lago case last week by the special prosecutor. It was an opposition to misconduct.
Mr. Trump's motion to compel discovery. I think a motion we talked about briefly last week or the week before to say, you know, it's kind of like the motion that they had filed in the January 6th case saying, take this very expansive view of the prosecution team and discovery obligations. And we want all these kinds of things. And as you predicted, Andrew, in large part, the government came back and said, we've already provided everything we're obligated to provide and more and gone above and beyond.
And we can, you know, if this ever gets actually heard by Judge Kahn, and we can kind of pick apart and go into more detail, I think, about the substantive arguments in this opposition. But one of the things that I thought was really notable is the special counsel spent quite a number of pages at the beginning of the opposition to do what it called setting the record straight. It says, the government will explain below why the defendant's showings fall short of all the aptitudes
applicable legal requirements for a motion to compel. But before turning to those arguments, it's necessary to set the record straight on the underlying facts that led to this prosecution because the defendant's motion paints an inaccurate and distorted picture of events.
And you may recall their motion is very much, this is a political prosecution. And what we want is discovery that will show bias and political persecution in this prosecution. And the government then goes page by page talking about the very beginning efforts to try to just get presidential records from the White House even before Mr. Trump left office.
through every sort of step up through an indictment about how it was in the normal course to the extent there's ever a normal course when a president takes classified records with them when he leaves the White House.
But, you know, everything they were doing, they were doing cautiously. By the book. By the book, right? And makes the point that at any rate, what Mr. Trump's trying to get at is discovery to suggest this was a selective prosecution and he hasn't even come anywhere close to meeting that standard. Because selective prosecution, discovery for that is not about whether you're guilty or innocent. It's not about information you need for the defense. It's about the
It's about, I shouldn't be prosecuted because this was discriminating against me with discriminatory intent and discriminatory effect. So I think they do a good job, I think, in making all the arguments why that's not the case and why this motion should be denied. But we'll see what Judge Cannon thinks when it gets in front of her. We should definitely come back to it because there's a ton that's in there.
I agree with you that they were definitely trying to address this both to Judge Cannon, big picture, to make sure she understood at least the governance position as to what happened here. But it's also, I think, in many ways, when people say, what's the difference in how you investigate and present a high-profile matter versus a sort of more run-of-the-mill case? A lot of people say, oh, it's all the same. It's not.
Having done high profile matters, this is a good example of it's not the same. There was an enormous effort here to explain to the public and to the judge what happened and to set out the governance position so it didn't go unresponded to. But we'll get into the details. And also, I thought they did a really good job on the law and setting out the pieces here. And it was complex where it needed to be about various issues.
But let's break that down later.
It's so funny because both of us are sort of chomping at the bit because we were expecting to talk about it. I know, in more detail. But that darn D.C. Circuit got in the way. I know. Thank goodness for that D.C. Circuit. OK. Yes. So what are you watching? We have a couple of other things on the radar. We're obviously waiting for Judge Ngoran in New York in the New York attorney general's case. That's the civil fraud case where Donald Trump is a defendant, as are two of his children and Alan Weisselberg, the former chief financial officer, also a defendant.
were waiting for that decision, you'll remember that Judge Ngoran said that he was hoping, hoping, aspirationally to have the decision by the end of January. He then put out word that it would now be closer to sort of mid-February. And this is what I think's going on because there's also been news reports in the New York Times that Allen Weisselberg, the former chief financial officer,
is in plea discussions. Allen Weisberg had pled guilty to a major tax fraud scheme last year in the Manhattan criminal case. He then testified against the Trump Organization, which was convicted in a criminal case. People always forget about that, which is just amazing to me. It's a criminal conviction of the Trump Organization, which is not a large organization. Guess who was the head of it? Former president. Right.
Alan Weisselberg rightly, I think, is in those sort of plea negotiations because he testified in the civil case before judging Goran that he essentially, I'm just paraphrasing, that he had no role in...
in the whole overvaluing of the Trump condo, where it was listed and represented to be over 30,000 square feet when it was actually 11,000. So that's like a big mistake, and it's obviously knowable, and you kind of know when you're in someone's home. I'm sure their tape measure was just like faulty. Yeah. So he said, I didn't really have anything to do with it. It's like not my job. Well, Forbes came out with a report saying...
he's lying because we have contemporaneous notes and records that show that he was intimately involved in making these representations to us. I'm just reporting what has sort of been reported. Been reported, yeah. And then Alan Weisselberg, who was on the stand when that reporting happened, sort of spontaneously combusted. The next thing we knew, he was not on the stand anymore. It was like...
He was there. Imagine that. These things come out and he's not there, which makes me think that his defense counsel was like, and we're done. Yeah. Like you're now not testifying anymore because we need to look at this. Yeah. So you could understand why the Manhattan District Attorney's Office would be looking at this because Alan Weisselberg is still doing part of his sentence. He had part of his sentence, which was in jail. He had part of his sentence, which was out of jail. And he could be in violation of the terms of his sentence. But he
But he also could be independently guilty of the crime of making false statements to the New York attorney general and falsely testifying before Judge N'Goran. That all remains to be seen and proved. But I would imagine that Judge N'Goran is waiting to see what happens there because it can very much affect his decision on how much credit
or not credit to give to Allen Weisberg's testimony. And so that is an important piece that he'd want to see what's happening there. Totally understandable as to why he would be thinking, let's see what happens in that criminal case. It's important.
We're all going to keep an eye out for that. Yeah. And then, of course, the other thing that was big that happened, I think it was on Friday, is that the Georgia Fulton County District Attorney Fannie Willis filed her response to the motion by Mike Roman, one of the defendants in the 19 defendant Rico case involving the efforts to override the will of the voters in Georgia and also to Mr. Trump's
motion as well that she be disqualified. She filed her opposition to that. The motion for disqualification was based on allegations that she was in a personal relationship with a special prosecutor who she had pointed under
law and rules that are applicable in Georgia. Nathan Wade, who's been sort of really leading a lot of the prosecution in that case and that they had a personal relationship and that she had a conflict of interest because she benefited financially from that personal relationship, as was evidenced and alleged.
through trips that Mr. Wade allegedly paid for that Fannie Willis accompanied him on. She comes back, I think, quite forcefully and includes an affidavit, which is a sworn sort of written statement from Mr. Wade saying there's no conflict here that's a conflict under Georgia law that would require disqualification. She's not benefiting financially. Even if she is in a personal relationship, there's no law, you know, there's nothing here that
creates a conflict. It's not like she's in a personal relationship with a defendant or with a victim or a witness or something like that. You know, she and Mr. Wade are on the same side of the prosecution. She's not benefiting financially. In other words, she didn't employ him just so that she could reap the money that her office is paying him because they both keep separate accounts. And even if they are seeing each other, they've both
paid for things independently. Mr. Wade's affidavit corroborates all of that, says we were not in a personal relationship before she appointed me. We did begin to have a personal relationship after my appointment. We have traveled together. Sometimes I pay for trips. Sometimes she pays for trips. We're both professionals. We have independent bank accounts. She
She's not benefiting. And basically, she says to the judge there who had scheduled a hearing for next week on the 15th, there's no reason to have that hearing. This is really just Mr. Rome and Mr. Trump wanting to make a big publicity splash about this. There's
There's no there there. Here's what the law says in Georgia. There's just no conflict. And I thought she had a fairly persuasive response, actually. Yeah, I agree that there was a persuasive legal and factual response. The legal response is basically, this is just apples and oranges. Keep two things in your head at the same time. It has nothing to do with the criminal case.
But factually, I was going to add one other piece, which was that the affidavit from Mr. Wade also said, you know what? I'm damn qualified for this position because the essential tenor of the Roman submission was...
Fonny Willis was in a relationship with an unqualified person and put him there because of the personal relationship and then profited from it. Right. So all three pieces of that were refuted to say there was no personal relationship at the time. I didn't profit from it. And you know what? He's qualified.
Yeah, that piece I thought was really important and I thought very well set out. But you know what? This is one where, to be fair, there is going to be some sort of hearing. We'll see what the judge does, whether he is going to have the factual hearing, whether he'll address this just on a legal issue that it's irrelevant to the criminal case. But that's what the courts are for. There's a dispute. They'll take it to court.
If there are additional questions or issues that the judge has concerns about, that's what we'll see on the 15th of February. So a lot
Again, Mary, so much to go on with. And so I will see you, it sounds like, later this week. Yes, indeed. And we will both, I'm sure, be tuned in on Thursday to The Arguments. And until then. So if for some reason you might be busy in the morning on Thursdays and you're not like us, like total legal nerds, which is, I can't go to work. I need to listen. You'll be able to listen to it on our podcast. Fantastic.
If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.
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