Deep Dive
Shownotes Transcript
Hi, and welcome to an emergency episode of Prosecuting Donald Trump. Mary, there was so much that has happened since I spoke to you. 48 hours ago. It is unbelievable. 48 hours ago. And there's been a lot of news. So we're back with everyone to sort of break it down because we thought there's just so much going on.
So why don't we give a little recap of what we're going to talk about today? Right. So, of course, first, we'll start with the ABC News reporting that when Mark Meadows testified before the grand jury, which we have reporting that that was like late spring, early summer. New York Times reported about it in early June that he was actually testifying under a grant of immunity. We'll talk about what that means later.
Also, the fact that his own lawyer has basically denied the reporting as largely inaccurate. So we'll spend some time explaining what immunity means and how this could impact not only Jack Smith's case, but also the Fulton County case in Georgia against Mark Meadows. Mark Meadows, of course, is not indicted in Jack Smith's federal case. Just Mr. Trump is indicted there. And then...
And other big news is we talked about Sidney Powell having pled guilty. We talked about Chesbrough. Some people refer to that as the Kraken and cheese. But now there is a new lawyer who has pled guilty because Sidney Powell's a lawyer, Kenneth Chesbrough's a lawyer.
third Trump lawyer to have pled guilty in the space of like days. Yeah, three or four business days. Jenna Ellis. So she pled guilty and her agreement and how she pled is really different. And I think it somewhat may vindicate our skepticism about the earlier pleas, but we're going to get into why we think that's different. And I think both of us think this is a big deal. So-
We'll talk about that. So, you know, between the Mark Meadows reporting, if accurate, and the Jenna Ellis plea, which we know happened, those are huge developments. But wait, wait, there's more. Absolutely. Of course, you know, while all of this is going on in a courtroom in Manhattan, the civil trial against Trump and the organization is happening online.
every single day. And yesterday was a big showdown between Michael Cohen, Trump's former lawyer, and Trump sitting glaring at him in court. And I understand, Andrew, you were there at least for part of that. So you can talk about whether Mr. Trump was glaring at Michael Cohen or not. I was. I will give you that, but we'll keep that at the end. But by the way, yet another lawyer. Yes, yes, yes. Right? I mean, this is just amazing to me that we're talking about so many
lawyers. And by the way, to put it in context, there's Evan Corcoran, Pat Cipollone, Eric Hirschman, the former White House counsels, Bill Barr. I mean, there's so many lawyers who are going to be witnesses at these trials. Sort of just remarkable. And you have all these lawyers who have actually admitted guilt. But anyway, let's turn to the big news that broke yesterday about Mark Meadows'
Yeah. So based on the ABC News reporting, a lot of what they reported is that Meadows testified essentially that he told Donald Trump pretty early on after the 2020 election that there was no evidence of fraud significant enough to change the election and that many others told this to Donald Trump. And even that Trump at some point acknowledged, I guess it's over, I think, after the Supreme Court denied one of the election challenges.
So that's some of that testimony, as well as other little details based in this reporting. And one of the other things I think is significant about this reporting, you know, and I frankly doesn't make Meadows look bad.
very good is that the things that are being reported that he testified to in the grand jury are really completely contrary to things that he put in his own book, where he seemed to be essentially making excuses and full disclosure. I've not read the book. I've only read descriptions of what he said in the book. But at least based on this ABC reporting, he was not claiming in the book that Mr. Trump knew and that he and others had told Mr. Trump there was no
election fraud that would have changed the outcome. Yeah. So if all of this is true, one of the ways that you could cross-examine Mark Meadows if he testifies for the government, either federally or state, is to say you said the opposite in your book. And as you said, it doesn't make him look good, even if the truth is what he said in the grand jury. Then it looks like he's peddling these falsehoods just to make a buck. Right.
So those discrepancies aren't great. We'll talk more about discrepancies when we get to Michael Cohen, where it's even more severe. So I just maybe wanted to walk through how do you get immunity in federal court? So the process, the government, as you said, Mary, has to make a decision whether they really think it's worth it, because you might be immunizing somebody with significant immunity.
liability and you don't want to suddenly find yourself having immunized a murderer unless, you know, you're... Unless you know that and you're getting... You're getting a whole bunch of murders. Yes, exactly. Yeah. Right. So you really have to be careful about it. But you could imagine in Mark Meadows' case, if you don't think that you have enough proof to prosecute him criminally and you think he is going to be truthful and give up significant evidence...
You basically have a long discussion with the person's defense lawyer. You try and get a sense of what they would say if they were to be immunized. There usually is a lot of discussion about that. You might even have what's called a proper session with Mark Meadows' statements. This is the thing we've talked about before called Queen for a Day, right? I think we talked about this way back early in the early days of our podcast. Yes. We discussed this. Yeah. Yeah.
Yeah, that was in the 1920s. Wasn't that? It was, yeah, we were just starting out. Well, I wasn't born then, Mr. Wiseman, so speak for yourself about the 1920s. Okay, yeah, I'm old. I'm old. I feel that old. So then you get this, under a particular statute, you get an immunity order. And the judge signs this order that says,
When you're in the grand jury, if you refuse to answer questions based on your Fifth Amendment, it triggers the immunity order. And the order says that you cannot be prosecuted for crimes that use the evidence directly or indirectly that you give in the grand jury with two exceptions.
You can be prosecuted for perjury if you lie in the grand jury even after being given immunity or if you obstruct the grand jury. So just because you're given immunity doesn't mean you can go into the grand jury and lie.
Because immunity is so broad, as Mary, you said, for almost all intents and purposes, once you've immunized someone, it is very hard to go back and prosecute them if they have given evidence related to the crime. I can give you an example, though, of where I was able to do that. Before you give that example, can I just make one thing clear about the statute? Because we are talking about a statute that governs this process. I mean, there can be less formal letter of immunity, but...
When it's done under the statute, the witness then cannot refuse to testify in the grand jury because the court's order granting the immunity says you cannot claim Fifth Amendment. You must testify. That means if a person refuses then, they can be held in contempt. Yeah.
Great point. Because the whole idea of immunity is it's giving you all the benefits that you would have had from the Fifth Amendment because your statements can't be used directly or indirectly against you. And so that's the purpose of the Fifth Amendment. So when the immunity is consonant and overlaps with the Fifth Amendment, you then, once you're immunized, you have no Fifth Amendment because you can't say that a statement would tend to incriminate you because it won't.
because the government's actually precluded from using it directly or indirectly against you. So it's a great point. So here's an example of where somebody was immunized and we were able to prosecute them. Paul Graziano, who was an acting captain in the Gambino family, this is all public, so I can talk about it, went into the grand jury and we asked him about his captain,
because we were pursuing a case involving a murder and drug dealing. And he was basically, I don't know anything about the Gambino family. I don't know anything about murder. He's just like, I don't know anything. And just lied throughout. So it didn't help us at all, but it didn't really hurt us, but it just didn't advance the case in any way. And,
Obviously, in that situation, although you would think his lawyers would say, you know, this is a golden opportunity for you to just have a clean slate, like just tell the truth and you'll be fine. He didn't do that. Well, we later happened to make a case against both his captain and him. And I remember turning over his grand jury transcript to his lawyers because the lawyer was entitled to look at it.
and see if we were using it in any way, directly or indirectly. And I said, "Knock yourself out. Have fun looking at it." But because he had said nothing in the grand jury that could possibly be helpful, we were actually able to do it. But that's an unusual case.
usually you want to get the immunity and tell the truth. Right. And a lot of people will think about, although many people probably listening to this podcast maybe weren't even alive at the time of this, but they will think about the problems that occurred when Oliver North was granted immunity, not by a prosecutor, but by Congress in order to testify about the Iran-Contra affair. He then was prosecuted and his
convictions were reversed because some information that had come out when he testified under immunity before Congress had been used directly or indirectly against him in his criminal trial. And what the court said is that you have to go back and do this Castagar hearing. That's the hearing I was referring to earlier.
Today, where the government would have to go piece of evidence by piece of evidence through everything they had and show it was obtained completely independently from Oliver North's testimony before Congress. This has come up in other contexts, too, that don't even involve immunity. When I was a criminal division chief in D.C., we prosecuted the Blackwater case.
And the first time we prosecuted that case, there were statements that the defendants had made, not when they were immunized, but when the State Department investigators had investigated them without giving them Miranda warnings, and they had made inculpatory statements. Some of those statements were then used. Well...
at least the argument was that they had been used or that information derived from those statements had been used against them at trial. And we had to go back, redo the case with a completely clean, different team of prosecutors, develop all the evidence completely independently from anything that they had provided to those State Department investigators. And ultimately, we were able to do that as well and were able to successfully prosecute the case. But it is a lot of work. And the
bottom line is that when you give that immunity as a prosecutor, usually it means you're not going to end up prosecuting that person for the things they're testifying about. I just wanted to quickly just say something about how immunity can be used at trial, which is, you know, both of us have put witnesses on and there are different arguments that you make as the government lawyer. There are different arguments you make as a defense lawyer in terms of challenging people's incentives and
whether they should be believed and what their incentives are under an agreement with the government. When someone's immunized, in many ways, yes, it's hard to make the decision up front, should you immunize this person and thus not prosecute them for something that they did? That's a difficult decision as a prosecutor.
But where it pays off, I think, is when you put that person on the stand, if they are truthful, it is a very, very powerful argument to the jury to say they were immunized. Their incentives under that agreement are to be candid. They only have a downside, legally at least,
if they were to lie, because they basically can get a complete walk by just being candid. Where they run into trouble is if they tailor their testimony or pull back in some way. That's where they can get into trouble. And why would you risk it? So it can lead to very good arguments that the government can make, and it can be very difficult for the defense to defend
deal with that issue. Now, the defense tends to say... You've got to walk, right? Well, A, you've got to walk, and B, you are going to try and say what the government believes the truth to be, and then you won't get prosecuted going forward, even though you are lying. But it's a harder, more complicated argument, because presumably there's corroboration. So it's a very useful tool for the
to present it under very favorable circumstances to the jury. Yeah, and I think this is so important to make sure people understand because I know that there's been a lot of reporting in the news, accurately, that this does not necessarily reflect a cooperation agreement. So I don't want people to think, oh, that means that Mark Meadows won't be testifying. Because in fact, when he's been given immunity, he can be compelled to testify.
Not only in the grand jury, but at trial. And obviously he's going to be incentivized to testify consistent with that grand jury testimony. Otherwise, he faces possible investigation into perjury. Perjury.
and it implicates Donald Trump, and this is in the federal case, we will hear Mark Meadows testify. So one final thing before we move on to Jenna Ellis, which I know both of us want to really dig into, is it's worth just repeating that Mark Meadows' lawyer has said
that the ABC reporting on this is, I think the phrase is largely inaccurate. Now, who knows what that means? It is significant to me, this is my opinion, that he didn't just say it's all false. I mean, the largely inaccurate is one where it's not exactly saying he wasn't immunized or he didn't go in the grand jury or he didn't meet with the government. I mean, the reporting is that he met with the government, I think at least three times and he went in the grand jury once and
And the largely inaccurate to me was a bit of a tell because it wasn't just this is wrong. Yes, I agree. It seemed to me like he's trying to quarrel with like individual aspects of the reporting about what Meadows testified to. And who knows? I mean, we'll find that out. But I agree. He didn't say something like, you know, this is just outright false. So there's at least something there. That's true. More prosecuting Donald Trump domino effect in just a moment.
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weeknights at 10 p.m. Eastern on MSNBC. So turning to Jenna Ellis, who in the space of just a few days is now the third lawyer who has pleaded guilty. She, like Kenneth Chesbrough, has pled to a felony. She has pled, very interestingly, to aiding and abetting false statements being made to the Georgia state legislature.
And who are the two other people who she says she aided in a bet? One is Mr. Stallings-Smith, and the other is Rudy Giuliani. And so if you are Rudy Giuliani, you had a very bad day because the charge of making these false statements to the Georgia legislature about a whole litany of facts that were false to try and get the state legislature to
basically undermine the electoral college vote for Biden and go with Trump was a series of false things that she said she aided and abetted. I think we should pause there for a minute because several things I think are important about this. One is that of these three pleas, I'm putting aside Scott Hall, the bail bondsman's plea a little bit because he's just not as big of a player. But if you look at Powell, Chesbrough and Ellis, we now have
who are cooperating with respect to different aspects of this multi-pronged RICO conspiracy, right? It's not like all three of them came in with information about the same piece of it. So we have a bunch of redundant witnesses about the same piece. We've got Powell on the effort to illegally take documents
voter data from machines in Coffey County. We've got Chesbrough on the fraudulent elector scheme. Now we have Jenna Ellis on not only the false statements and pressure put on the Georgia senators to try to get them to say, we're just going to put up our own slate of electors, but also this essentially admission that so many of the bases of
for the false claims in Georgia were in fact false. Now, that's a lot of falses there. So we're talking about claims that over 96,000 mail-in ballots were counted despite there being no records of those ballots having been returned, that the Dominion voting systems recorded mistakenly 6,000 votes for Biden that shouldn't have been, that over 2,000 felons voted illegally, that over 66
6,000 underage people voted illegally, that over 2,000 voted who weren't registered to vote, that over 1,000 voted who had illegally registered, that over 10,000 voted who were dead, right? And importantly, that the Fulton County election workers at the State Farm Arena ordered poll watchers and members of the media to leave the tabulation area on the night of November 3rd. And remember, this whole poll watcher issue involves people who have been really mercilessly threatened by
by those who believed that they had done something illegal. So she really is coming in and saying all these statements were false. Yeah, and just to be clear so everyone knows, you were reading from the charge that she pleaded guilty to. So that whole recitation is the document that was issued
entered in the court proceeding when Jenna Ellis pled guilty. So that's why Mary went through that litany, which is the litany that she is saying was false. Yet these were the things that she says were falsely represented by her and two co-defendants who are still out there. So again, Rudy Giuliani, very, very bad day. The one thing I would
quibble with Mary is the characterization that we now have three cooperators. And that goes to an aspect of the plea agreement that I found really significant. Yeah, this is very different than Powell and Chesbrough, as we discussed on Monday. Yeah. So I think with Sidney Powell and Chesbrough,
What I would say is the jury's out, at least the jury in my head is out about just how much they are cooperating. They did agree to testify. So to some extent, there's a cooperation there. We just don't know if it'll be very significant, as we discussed on Monday, or even very useful. Yeah, because, you know, look, they could get a subpoena and be required to testify now because they pled guilty. So I just don't know how much, especially since Sidney Powell is...
Apparently, she and Chesbur's lawyer are sort of trying to walk back some of what they said, you know, that it was extortion, that they're not implicating people, etc. So, I mean, Chesbur's lawyer actually said, no, he didn't implicate anybody else, which...
We know can't be true because he pled to a conspiracy, which last time I checked requires two people. And those people are named. Obviously, there's at least one more person. They're also named in the charge that he pleaded guilty to. So here's the big reveal. We've sort of buried the lead. Here's the thing that is really important about Jenna Ellis. Her plea agreement, what was put on the record before the judge, is that she agreed to, quote,
fully cooperate, unquote. She agreed that she would give additional statements as necessary to the DA's office. She said that she would agree to go in for additional interviews with the DA's office and then obviously to testify. That replicates exactly what happens in a sort of federal cooperation agreement, which is that when you're a cooperator,
If you're a defense lawyer and you have somebody who's cooperating or you're a prosecutor and you have someone who's cooperating, that takes days and days of interviews and learning every single thing. And then you also want to prepare them to testify. So her obligations and what she said are so different. And to me, what's striking is it means that the DA's office understands that there's this difference, right? They struck a very different deal. But it also tends to show, as you
sort of domino effect is that you do see, even though you talked about Hall and the bail bondsman being less significant, and I agree with that, you know, Hall pleading guilty on the same scheme that then Sidney Powell, exactly, the first, then Sidney Powell pleads, then the next day Chesborough pleads. Now you have Jenna Ellis pleading and cooperating. Chesborough and Jenna Ellis are pleading to felonies. Now, all of them, if they live by their agreements, they're not going to do jail time. But
They are moving up the chain. You're seeing the grievance getting harsher, still not jail time, but harsher in terms of what they're requiring of the person. And it is sort of, to me, it does seem a little bit like a heat-seeking missile towards Rudy Giuliani, at least from the plea here. But I just thought that was so significant that she was
really entering into a full cooperation agreement. And any skepticism I was having about others, I can't have with her. I mean, it's clear that what she's saying she's agreeing to do. It's also clear, unlike the others, she actually gave a statement in court. The others just were asked, "Do you agree there's a factual basis for your plea after the prosecutor read the factual basis?"
She gave a statement. Now, I will say, listening to her statement, I would call it a self-serving statement. She's saying that she is culpable and bears some responsibility for these false statements, but she totally passed the buck in her statement off to other lawyers more senior than her with more experience and basically says what she did wrong was she failed to exercise the due diligence that she should have to verify what
they were telling her about election fraud was true. And to me, that's pretty self-serving. I'm not really that bad. It's also not a crime. If that's the case, it's not a crime. That's not a crime. Failing to exercise due diligence, right? Because you have to intentionally and knowingly done things for a crime. We've talked about that many times on this podcast. And so it's interesting because I felt like in a way, a little bit undermined, like you were just saying, that undermined the plea agreement. But I think what it did that is helpful
Helpful is it basically says, I am diming out my co-defendants. I am diming out Julianne. Out. Dimin. Dimin. Totally. Stallings was the campaign attorney in Georgia. Bring it on. Now, that does mean that, you know, she will be subject to
if she does testify, to cross-examination about aren't you really just minimizing your own responsibility and pushing it off onto others and all of those things. But it does mean we have a witness here who's pretty clearly ready to point the finger at others. The one person that's not clear she's ready to point the finger at is Trump himself. And that, I think, remains to be seen. Exactly. One of her statements yesterday was...
When she gave this allocution, this tearful allocution, she said, "If I knew then what I know now, I wouldn't have represented Donald Trump." That's a standard of sort of negligence or gross negligence.
The criminal law requires, as you said, intentionality. So she didn't say that's the only thing she did. So, you know, it certainly was self-serving. It certainly minimized. But if that's all she did, that's actually not a crime. And that's where, Mary, you and I in the federal system are used to a judge saying to the defendant, now tell me what you did in your own words. It's not enough to just say, tell me, do you agree there are facts out there that to which you could...
they could find guilt. I mean, there's something called an Alford plea, which is sort of in the weeds, but it's very, very disfavored. I mean, usually a defendant has to say, "This is why I'm guilty, and I knew it. I knew it, and I did it knowingly and intentionally." It's not like, "Oh, I made a mistake," even a bad mistake. That's not usually how the criminal law works. So anyway, huge development between Meadows and Jenna Ellis. Meadows, if true, because it's just reporting, Jenna Ellis is
is clearly significant. And yet there's more because that'll be, have we talked about the prospect of these witnesses and the prospect of lawyers, but we actually have Michael Cohen, it's like lawyer one,
for Donald Trump, who has pleaded guilty, who has done jail time, taken a stand in this civil case in New York. It's by Letitia James, the attorney general there. And it's about what they say are the fraudulent business practices. Those have been found by the judge already as to the first cause of action. The trial is about the other causes of action and what the amount of damages should be and whether she should be barred from practicing
practicing and doing business in New York. So,
Yeah. So it could have huge ramifications. It's fascinating to me that this is the case that Donald Trump attends very often, probably because it involves money and involves his real persona as a successful businessman. And it gives him a platform to make statements, you know, before the trial starts in the morning and at every break and every TV camera is on him and he can talk about his political persecution and he can call Letitia James names and he can call Michael Cohen names. So it gives him...
Also, I think he's being very strategic about when he shows up in court. You're absolutely right. But yeah, let's talk about Michael Cohen testifying yesterday. You know, people will maybe recall that really it was Michael Cohen's testimony before Congress about this.
the hush money payments to Stormy Daniels and overvaluing Trump assets as a part of his role as Trump's attorney for many years. That's really what first, I think, piqued Attorney General Letitia James' interest in investigating this. And here we are, full circle, post-congressional testimony, post-Michael Cohen guilty pleas and serving prison time, now testifying in court about these, really these same things. How did it come out yesterday, Andrew? Andrew Klingler
So I was there for sort of the end of his direct testimony, and he's now today on cross-examination. So first, just body language. It was sort of interesting because Michael Cohen on direct examination was calm, answering questions, generally fairly serious, and not looking over at Donald Trump.
It's New York and it's a court proceeding and everyone's sort of fairly somberly dressed. And Donald Trump sort of stood out because he had a blue suit, but it was a pretty bright blue suit, like not sort of your New York-
Navy blue, boring lawyer, boring investment banker suit. So it was sort of very bright blue and he has sort of very dyed blonde hair. And so that sort of was striking. But then he wasn't really looking at Michael Cohen and Michael Cohen wasn't looking at him. Donald Trump appeared to be sort of relatively agitated. He was
tapping away with one finger on his phone, presumably onto social or, you know, sending messages. He was talking to his lawyer and sort of poking at them. It was sort of an interesting contrast. I think the big thing for today, because Michael Cohen's on cross, is whether he's going to keep his cool, because Michael Cohen...
from people who have seen him, he seems like an excitable person. And so if you're a defense lawyer, you want to have that suddenly displayed. I mean, he made his own statements in the morning yesterday right before court outside on the steps. He's not scared to talk to the press. These are two peas in a pod. They've known each other for years. They've grown up in New York. They have each other's number. It's just it is very Shakespearean. But as you know, this sort of happens all the time, whether you're talking about John Gotti and Sammy Gravano, the
boss of the Gambino family and the underboss of the Gambino family. Across the street from this trial is Sam Bankman-Fried and his former CEO and girlfriend testifying against him. I mean, the idea that you have underlings who are close to the
The person on trial happens all the time, but it is very dramatic. The substance of his testimony basically was Donald Trump told me and told Allen Weisberg, the former chief financial officer, essentially what number he wants, and then we had to reverse engineer it. I mean, it's a devastating testimony, substantively, and lots of details.
That sort of one side. But this is a very typical way to begin when you put somebody on the stand who has what's called a lot of baggage. In other words, they've pled guilty to different crimes. In his case, he's admitted that he testified falsely about the Trump Tower Moscow project. And of course, he says that he was doing that for Trump.
Donald Trump. There was no other reason for him to have testified falsely. But still, he has testified falsely under oath in Congress, and he admitted it and was prosecuted for it and did time for it. But
Here's the little bit of a kicker. And it was brought out on direct and obviously it was repeated on the little bit of cross that started yesterday. He said that one of the crimes that he pleaded guilty to in the Southern District of New York related to tax fraud, he did not do. Wow. He has said that.
on MSNBC when he's doing interviews. And I've always thought, okay, that kind of makes him pretty unusable as a witness because correctly, one of the first questions on cross-examination, even though it had been brought out on direct to just underscore it for the judge was, are you saying that you're either lying now or that you lied to Judge Pauly, the federal judge
in front of whom you pleaded guilty. And Michael Cohen, to his credit, I guess, just said, oh, I lied to Judge Pollack. Which, of course, exposes him to additional liability, by the way. Oh, totally. The last time I heard something like that was Michael Flynn. Michael Flynn, when he withdrew his guilty plea, told the federal judge, oh, I'm not guilty. Meaning when I told you under oath,
twice, not once, twice that I'm guilty, that would be a lie. Of course, he got rewarded with a pardon. But anyway. Yeah, that's what you get for committing a crime and then lying to a federal judge in Trump world. Exactly. So anyway, so that's obviously a huge hit to his credibility. It should be factored in. And I would assume what the state is going to do is really point out the crime
Yes.
testimony alone, these other things corroborate his testimony. At least that's what we expect and consistent, I think, with what they promised. Yeah. And also, this is being argued to a judge. There's no jury there. And so it remains to be seen how the judge is going to factor that in. So with that, Mary, it's been great to do this. It'll give us a chance to see each other even more often. Yes, absolutely. Look forward to the next time.
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, unless we have another emergency episode.
The senior producer for the show is Alicia Conley. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. Bob Mallory and Paul Robert Muncy are the audio engineers. Janmaris 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.
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