Deep Dive
Shownotes Transcript
Welcome back to Prosecuting Donald Trump. It is Tuesday, January 30th. I'm Andrew Weissman. I'm here with Mary McCord. Hi, Mary. Good morning, Andrew. And I know, I know you're going to start already. We're almost at three weeks without an opinion from the D.C. Circuit on immunity. And so my predictions of one to two weeks have been completely blown out of the water. I like how you're so guilt ridden over this. You have to preempt. What is it? It's like
Yes, yes. I was not even going there. I know you weren't. I was not going to do that. I mean, I've made so many predictions that don't turn out. So this is one where it's like, you know, people in glass houses. So...
So we're going to, at the end of the show, just to do this backwards and really annoy our producers, we're going to do this backwards. We are going to talk about things that we're waiting for. Of course, the giant elephant in the room is we're waiting for the freaking DC circuit to issue their immunity decision. It's not that I think either of us is so worried about what the decision will say, although obviously we're super interested in that. It's that
there is an automatic stay in effect with respect to Judge Chuckens' trial. Everything's hanging on that decision, right? Yes. And so this is one where Donald Trump could really lose the battle and win the war. Every day is a victory in terms of the delay. But anyway, so you've triggered me already. That's not even what this episode is about. Okay, sorry. Exactly. We're really going to talk about something that actually...
is accountability and a sense of justice and a renewed faith in the judicial system, this time the civil justice system. We're going to spend a lot of time talking about the E. Jean Carroll
case and the results. And we'll talk about sort of what it meant to each of us. And we're also going to spend some time talking about some of our listeners may have heard about one of the longest serving judges on the bench in the D.C. District Court, a colleague of Judge Chutkin, in sentencing one of the January 6th rioters
last week, re-sentencing actually, was very, very explicit about what the event of January 6th is and his concerns about rewriting history. And so we'll spend a little bit of time talking about that. Yeah, and you know, I actually think that the E. Jean Carroll case and those comments from Royce Lamberth, the judge who you're referring to,
They sort of relate to each other in the sense that it's adherence to facts and that facts matter in the courts. That's right. So anyway, we're going to talk about that. And then I actually really wanted to spotlight for people. And, you know, Mary, I'm going to be really interested in your take. But I wanted to spotlight something that I think has gotten not enough attention and things to keep an eye out for, which is Rob H-U-R. Most people are going, who's that? Right.
Right, exactly. Rob Herr is the special counsel who was appointed by Attorney General Merrick Garland to investigate the Biden investigation
classified documents issue. And we are waiting still for that to conclude and for there to be a final report. And I wanted to put a spotlight on that because I'm very concerned about a couple of things about the timing of it and the content of it that I really wanted people to understand. And Mary, I'll be interested in your take, whether you think I'm
overreacting, underreacting, or I should just come. Yeah, I think it's important to raise it because it's kind of fallen off people's radar screens. And we are now in 2024. We are now in the presidential election season. And it's important to talk about what the impact of these kind of reports can be when we're right in the middle of an election season. So let's get started. Okay.
Okay. So, Mary, do you want me to give maybe just a little background just again so people understand this second E. Jean Carroll case? Just so everyone understands, this was about a week-long trial in federal court before Judge Lewis Kaplan, Southern District of New York, very eminent, very distinguished, tough judge. So this was essentially, we talked about how this is really the first case, but it took a while to get to court. So the
This actually was the first case that E. Jean Carroll filed for defamation, but it went second because of delays and legal issues. What Judge Kaplan had ruled for this trial was because there had already been a trial on whether E. Jean Carroll had been sexually assaulted and defamed, and the jury had come back after full litigation with both sides, Donald Trump and E. Jean Carroll, having a full opportunity to be heard, the jury was
with nine people unanimously determined that she had been sexually assaulted. The judge was like, I want to get ready because I'm going to tell you what the judge found had been proved. And it was quite explicit, but it is what happened, which was that Donald Trump inserted his fingers into E. Jean Carroll's vagina without consent. And that was the sexual assault found by
by the jury, and they found that she was damaged in terms of both compensatory damages and punitive damages for a total of a little more than $5 million. That was the first trial. Because of that, the second trial, it was about two alleged defamatory statements that the jury ultimately found were defamatory.
And it was a question of what are the damages, if any, that E. Jean Carroll proved. She did not have to prove again that she was sexually assaulted. She did not have to prove again that she was defamed. What she had to prove was that she suffered damages.
And it was her burden, whether it was compensatory or punitive. So that was the issue. Andrew, can I jump in there just to break what you just said down into how that was analyzed legally by the court when it issued its decision? Yeah, that's a great idea. So you described factually what happened. So after that first trial, after the jury had made those findings, right, and those were on a verdict form, so we know exactly what they concluded.
Before this trial, the question was, what's going to be available for this second trial for the jury to find out? And back in September, Judge Kaplan issued a written ruling. You can go read it where he said he applied a legal doctrine that goes by two different names. Sometimes it's called collateral estoppel, but an easier name for it is just issue preclusion.
In a second proceeding, you can be precluded from sort of reproving an issue or asking the jury to make a decision on an issue if four conditions are fulfilled. One, the issues in both proceedings were identical. So in other words, the issues in the first trial and the issues in the second trial were identical. Two, the issues in the prior proceeding were actually litigated and decided. And you already talked about that's what happened the first trial, right? There was actual litigation.
over whether E. Jean Carroll was sexually assaulted by Donald Trump, actual litigation over whether his statements made after he was no longer president were defamatory. Three, there was a full and fair opportunity to litigate in the prior proceeding. There was. There was an opportunity for Donald Trump to testify. He didn't, but he had the opportunity if he wanted to.
And four, the issue previously litigated was necessary to support a valid and final judgment on the merits, meaning in that first trial it was a necessary finding. It wasn't some sort of ancillary thing. And so here what the judge said is, Mr. Trump, you don't get to argue that you didn't sexually assault a Jane Carroll. You're precluded from arguing that because the first jury found it.
Right. This is, I think, what I refer to as no mulligans. Yes, that's right. You don't get a do-over. I mean, a jury of nine people unanimously determined this. And so...
I think it's great that you sort of did the tick tock of all of the elements, but it's basically saying, look, you litigated this. We're done. You're not giving full faith and credit to the determination, the factual determination by a jury. And so the new jury is not going to be any less.
wiser or different and has to give the legal effect of that factual finding. And I think some people might think, OK, well, that makes sense as to sexual assault because, you know, there was just one instance of alleged sexual assault. But how come Mr. Trump was precluded from arguing that his statements made while
he was the president, his 2019 statements, why is the jury precluded from hearing about whether those were defamatory? Because the statements in the first trial were from 2022. They were different statements. And what Judge Kaplan said in his opinion is the substance of the statements was the same. And in fact, the substance of the statements he made while he was president actually went even further than the statements in 2022 when he was no longer president. The
The jury found that his 2022 statements were false, were defamatory, and so necessarily that included them finding that the 2019 statements, which were substantively identical, if not worse, were also false and defamatory.
So that is why the only issue for this jury last week was what is the amount of injury to Ms. Carroll? What were her damages compensatory in order to pay her for how she, you know, needs to repair her reputation and for the harm done to her? And secondly, what is the amount, if any, of punitive damages, damages that are intended to deter him from continuing to make
defamatory statements about her. So my big picture, Mary, jumping to sort of obviously huge, huge victory for E. Jean Carroll is I was thinking about what
was going on in this courtroom and why, if I were Donald Trump, I might be freaking out, not just because of the amount of money, that it went from $5 million in the first trial to over $80 million in the second because of the continued defamatory statements that he kept on making even during the trial,
It's that the basic way that Donald Trump has operated, if you think about what he has done since the last election, is he has really thrown down a gauntlet as to how we decide facts in this country. Not just whether we should care about those facts, but how we decide them. Over 60 judges determined that the cases where there were challenges to the election, those were denied.
there was no judge who said that there was fraud in the election. But he's saying, but there was. The way that we decide facts when there's a dispute is we go to court and a judge decides what happened. Or a jury. Sometimes with a jury. Sometimes with a jury, sometimes not. And that's how we resolve factual disputes. Now, it's up to, obviously, in the political realm, you can have a discussion about whether you should care about how important those facts are. But
He basically was saying, you know what, I'm going to change that reality. He then goes to court, just, I'm just going to take the E. Jean Carroll case as one example, other example of this. And the basic argument there was jury nullification. It was, I'm innocent, this didn't happen. And all of that issue preclusion that you talked about, ignore that. There
That was twice his lawyer argued that to the jury, that this was basically he didn't do it. And essentially, you're free to do whatever you want, which they're not. Right. So to me, the sort of idea of jury nullification was so similar to election nullification and the idea of.
just challenging the way in which we respect the courts. And the fact that you have the first jury in the E. Jean Carroll case and the second jury in the E. Jean Carroll case, so 18 people unanimously saying, no way, no how, we took an oath,
you are bound by the rule of law just like we are, I think has to be sending shockwaves in terms of what he could expect in the criminal cases and why he is doing everything he can to not have those cases go to trial. Yeah, I think that's a very good point. And I also think here, you know, his behavior in the court, I truly believe, significantly impacted the jury probably almost as much as the evidence that was put on through witnesses. I mean, they saw him. They heard him.
heard him muttering, I don't even know that woman, right? They saw him stomp out of the courtroom during closing arguments. And so they have to consider the evidence that is introduced, but they certainly can consider the demeanor of the defendant sitting there in the courtroom and his demeanor when he took the stand. And the reason we spent so much time, of course, talking about this issue preclusion ruling is because
Part of the reason his testimony was so short is because the judge says, you're not going to get to get up here and talk about there not being a sexual assault, you not knowing that woman, and you not defaming her. You're going to be limited. But even with those limitations, he found ways, to your point, to try to contest those found facts by continuing to mutter things that were the exact opposite. So
I think you're right. I think, you know, he's seeing that at least with respect to juries, in many ways, they can see right through his falsities. And that's going to make it hard if he goes to trial in front of juries in any of these criminal cases. And I think in particular, the January 6th related case in Washington, D.C. I know a lot of people just want to know sort of when does he have to pay out the money?
The key thing there is for the first jury award of $5 million, he posted that because in order to appeal, a judge can require that you post a bond.
to make sure that the plaintiff at the end of the day, if the defendant doesn't win on appeal, that the money's there. Yeah, so that you don't move your money all around to offshore accounts and hide it and, you know, bury it in a desert island. So what Donald Trump is going to need to do with respect to this huge award is he either posts all of it or he has to find some bond company that's willing to sort of, for a fee, take the risk essentially and put up the money.
And so either Donald Trump will get a bond company or he's going to have to put out the money himself, query whether he gets the money from some other source than his own personal money. But the long and short of it is that I'm confident Judge Kaplan will assure that some sort of bond is posted or the money is in court so that when this is affirmed, E. Jean Carroll has the right to do so.
has that pool of money, which now is about $90 million, if you add it all up, to satisfy the judgment for sexual assault against her will and ongoing, ongoing defamation. And final note, I just note, is to this point, so far, Donald Trump
has actually stopped naming her and saying things like, you know, we'll see if that lasts. For like three days. Exactly. Well, you know, he can do the math. Five million. He then says, you know what? I can do this trial better than my prior lawyer. So I'm just going to show up. I'm going to do this. 83 million. Because it went from five to 83. So, you know, this is like, bring it on. Absolutely. Okay. So I think we're supposed to take a break. Yep. We're going to take a break. Then we'll come back and we'll talk about rewriting history.
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Welcome back.
So now, Andrew, let's turn to those comments from Judge Royce Lamberth. And I want to preface this by also saying I know Judge Lamberth quite well. When I clerked for Judge Thomas Hogan, who we're also going to talk about today, I clerked back in 1990 to 1992. These two judges who'd been both appointed by President Reagan, their chambers were right next to each other.
And so I got to know Judge Lamberth very well. He and Judge Hogan were close friends. I, of course, as a prosecutor in D.C., continued to be a regular in that courthouse. Judge Hogan's very close to me. He actually performed the marriage of my husband and I and Judge Lamberth I've been close to and my husband has as well for many, many years. So with that
I really just think it's so worth highlighting that not only Judge Lamberth, but also Judge Hogan, and I'll explain the context of these remarks in a minute, have felt it necessary to really try to publicly correct the record about what happened on January 6th. And for Judge Lamberth, that came in the course of resentencing one of the rioters.
Now, just to put a little bit of context around here, at this point, the Department of Justice has charged more than 1,200 individuals from across the country for their unlawful conduct on January 6th. More than 450 of those have been accused of assaulting, resisting, or impeding law enforcement officers or employees. And as of the anniversary, January 6th, this year in 2024,
nearly 750 defendants had been convicted and sentenced for their crimes. The U.S. Attorney in D.C. predicts there may be as many as 500 more cases that are being brought and is actively seeking the public's help in identifying those who they have not yet been able to identify.
Judge Hogan came last week to Georgetown and we did an event where he talked about the unprecedented nature of these more than 1,200 cases, what that has meant for the court, and also talked very much like Judge Lamberth did in this resentencing about the narrative that is trying to be rewritten.
Before I get your reaction, I want to read from a part of what Judge Lamberth said when he resentenced a defendant whose name is James Little. James Little had already been sentenced by the judge earlier for his role in January 6th. He had appealed his sentence because it was something called a split sentence where the judge gave him part time in prison and part time on probation. The court, we don't need to get into it.
sent the case back for resentencing. And the judge this time gave him credit for all of his time in prison and all of his time on probation, but in resentencing him, gave him an additional 60 days. And one of the things that he said, and I'm just going to read it because I could never otherwise do it better than this.
The court is accustomed to defendants who refuse to accept that they did anything wrong. But in my 37 years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream. I have been dismayed to see distortions and outright falsehoods seep into the public consciousness.
I have been shocked to watch some public figures try to rewrite history claiming rioters behaved in an orderly fashion, like ordinary tourists, or martyrizing convicted January 6th defendants as political prisoners or even, incredibly, hostages. That is all preposterous, but the court fears that such destructive, misguided rhetoric could presage further danger to our country.
The court cannot condone the shameless attempts by Mr. Little or anyone else to misinterpret or misrepresent what happened. It cannot condone the notion that those who broke the law on January 6th did nothing wrong or that those duly convicted with all the safeguards of the U.S. Constitution, including a right to trial by jury in felony cases, are political prisoners or hostages.
And he goes on to set the record straight. But I found that extremely powerful and something that really needed to be said. Andrew, what was your reaction? So I agree with that. I had two thoughts. So it's so interesting to me that, as you pointed out, you have Judge Lamberth and Judge Hogan making similar remarks just about a month or so ago.
The former chief judge, Beryl Howell, also made similar remarks about the importance of facts and the need to adhere to facts. And it clearly, in my opinion, was coming from the same place, which is they've seen what happens in a court of law. They've seen facts. And it relates so much to our discussion about the Eugene Carroll verdict, which is it is a place where facts and law matter.
And they're reacting to the effort to undermine how we determine things in this country, how we resolve disputes about what happened with due process, with everyone being given a chance to be heard. And so you have this very much an alignment of judges across the political spectrum. It's a respect for facts. It has nothing to do with political party. So that was sort of one takeover.
take, and I think probably the most important, was this adherence to law. And I think the court's understanding this effort to undermine their legitimacy, which is so foundational to how we decide things. That was sort of my big take. And that more minor take was just on a personal level. This is very much on a much smaller scale what I was experiencing during the Mueller investigation.
where judges were saying very similar things about what was happening in those cases, whether it was the judge overseeing Roger Stone or Michael Flynn or Paul Manafort, where there were these same kinds of efforts to distort what were clear facts. And unfortunately, there is a continuity there because what is the through line? The through line is Donald Trump. Yes.
Absolutely. And one of the things that I think is also so important about what both of these judges have said recently, and as you indicated, other judges, including Beryl Howell and others, have said similar things. I mean, the sentencings have been remarkable in how many judges have condemned the actions and also really chastised defendants in front of them who refuse to accept the truth.
And we have a clip of Judge Hogan's remarks at Georgetown Law last week, and you'll see that he, like Judge Lamberth, is concerned for the future. There's a strong narrative in the country that this was not a violent attack.
that this was a legitimate First Amendment protest where people truly believed it was a stolen election, and they had every right to do that. And there were a few bad apples that caused some problems, but overall, it was mainly accidental tourists that were in the Capitol that day. And there's a danger that is embedded now in our community and across the country, and that'll go down as part of the history.
And we have to wonder where that's going to end up with that, if that's part of our history with this fraudulent stories. Mary, that was remarkable. It's so important to hear his actual words. Let's take another break and we'll come back with what's on our radar screen.
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Welcome back. So before we go, as we started here at the top, we now want to highlight a few things we're watching this week. I don't know if we need to say anything more, frankly, about the D.C. Circuit decision on immunity. We said that up top. We're waiting daily. Tick, tick, tick, tick, tick, tick. It's not going to be, you know, necessarily the end of the discussion about immunity. This is another issue that Mr. Trump, if he loses before the circuit, is likely going to try to take to the Supreme Court.
But the timing, everything about the timing of getting to trial on the January 6th related cases depends on first this decision and then whether the Supreme Court takes it up. So we will just keep monitoring that and we'll be ready to talk about it as soon as we read it, as soon as it comes down. So turning now to Rob Herr, the special counsel handling the Biden classified documents investigation. This is why I wanted to highlight it.
Because I'm really concerned of a repeat of the Comey investigation regarding the Hillary Clinton emails. That investigation always struck me as something that was relatively simple. It obviously had to be thorough, but it also had to be fast and it lingered.
And I think there are a whole variety of reasons it lingered. But I think because it was sort of politically sensitive, I'm not sure it got sort of the attention in terms of needing to move it along. Or as a friend of mine from Georgia would say, snap a doodle. Let's go.
And so I'm concerned that because this is now in a special counsel, you can imagine the Department of Justice and Merrick Garland and others who are keeping hands off. The issue is, when is this going to come out? And normally, if this wasn't within a special counsel, you're supposed to have a sense of alacrity and the obligation to the public to move things along. I know when I was working with Special Counsel Mueller, we felt that. I felt that with Enron as well, where there's a sense of needing to act quickly. Yeah.
The longer this goes on, the more this becomes something that can take a life on its own and have a greater impact on the political process. So I'm very concerned about the timing of this and that it's still dragging on when it doesn't seem that conflicted.
controversial. Let's just go back in history a little bit here and make sure our listeners can remember sort of the timing of those Comey statements, right? So this is in 2016. The FBI is investigating her use of a private server when she served as the secretary of state and whether there might have been any classified documents on that private server, whether there was any mishandling. Sound familiar? Mishandling of classified documents.
On July 5th of 2016, so four months before the election where Hillary Clinton faced Donald Trump, of course, that is a day that the FBI director, James Comey, had a press conference, said that their investigation had not resulted in any criminal charges, but really criticized very strongly Hillary Clinton and others for what he called basically their careless handling of
certain government information, including some classified information. And that came out right in the midst of the presidential election. Worse, frankly, was just days before the election, October 28th, after saying the investigations closed, there'll be no criminal charges back in July. He announced on October 28th through a letter to Congress that they had just found some additional materials on a laptop.
And they were reopening their investigation. So here we are just about what, a week and a half, I think, from the November 8th election, only to say several days later, November 6th, oh, we've closed it again. There was nothing new on that laptop.
two days before the election. And by the way, these weren't just found. They were found weeks before and you hadn't bothered to do the investigation to find out that there wasn't anything on them that was in any way different. Indeed. So don't get me started. But what I'm concerned about is exactly that, which is that the longer we go on, the more that this report will come out in the middle of a political season.
And so it is really important for this to move on. And whatever the facts are, it should just be, it should come out. With bad, ugly, right? Yep. The second thing I'm worried about is,
Is Rob Herr going to do a repeat of something you alluded to, Mary, which is the fact that when Jim Comey gave his unauthorized, meaning it had not been approved by the attorney general or the deputy attorney general, press conference in July where he made these statements about what he was recommending to the attorney general and the deputy attorney general,
that he made comments about the person under investigation. You and I were both like sort of jaws on the floor. That's right. Because that is not what you do. That is not an appropriate thing for a prosecutor in that situation. And he was not the prosecutor. He was an FBI director. Oh, yeah, there's exactly a million things to say. Exactly. This is the so-called put up or shut up rule, which is that if you're closing a case, you do not denigrate the person.
In fact, even if you're indicting, you do not denigrate the person. You can have a press conference after a conviction. There were so many things that are wrong with it, but the second concern I have is not just the delay in this sort of being out there like a sort of Damocles, but
But also the idea of is there a reason to be worried about that same kind of what I call extra-prosecutive statement being made a la Jim Comey by Rob Herr? Or has he sort of learned the lesson of that is so antithetical to what it means to be part of the Department of Justice that you do not do that? Yeah.
And so that is my sort of second concern is not just the timing, but the wording of it, which is, is he going to adhere to department principles, which you remember, he is a special counsel within the Department of Justice, so he should be doing that. But it
But it certainly didn't stop Jim Comey because it's a norm. It's not like there's a statute that says this is what you have to do and this is what you can and cannot do. Right. And some people often talk about this 60 day rule, which, you know, obviously a statement now would be nowhere close to 60 days from the election. But that also is just a norm, which is that
Prosecutors won't really take overt investigative or prosecutive actions, new actions, ongoing cases, that's very different, but new actions. They try to avoid doing that within 60 days of election. We're obviously far outside of that. But even still, that's something that, again, just to reiterate, sometimes we're talking about norms here, not statutes.
I think just to go to your point of this not seeming to you like super complicated investigation, it's worth just reminding people that Rob Herr was appointed not too far from when Jack Smith was appointed to investigate the mishandling of classified documents at Mar-a-Lago. And Rob Herr was appointed to investigate potential mishandling of documents by President Biden, not when he was so much president, but like after he left the office of vice presidency, when he was in that in-between being vice president and president.
And so one of the things we talked a lot about at the time was that the difference between Mar-a-Lago, where once Mr. Trump was notified that there were likely classified documents being inappropriately stored in Mar-a-Lago and seeking their return, he did not return everything. Instead, at least as alleged in the indictment,
He hid things away, obstructed justice, tried to make sure that everything wasn't turned over to the Department of Justice. And that was in stark contrast to what happened when it was revealed that there were some classified documents not properly stored in some of Mr. Biden's offices that he had had in between his time as vice president and president. He immediately returned those. He opened up his home and his office to the FBI to do full searches.
They did find a handful, I think, of additional documents and he cooperated fully. At the same time, similar findings were made with respect to Mike Pence, you may recall. Some minimal amount of classified documents found improperly stored. He also, like Joe Biden, opened up his home office, I don't recall anymore, maybe both, to the FBI to do searches. So there's a big difference just in terms of how both those men responded versus how Mr. Trump responded.
I agree with you completely. The one thing I would say, I just, I don't think there's going to be anything there. We'll see what facts are revealed by the report. I'm not sure I would say that President Biden immediately returned.
My understanding is they alerted the Department of Justice promptly to it. And then the Department of Justice sort of took over how to deal with it, how to get access to it. But I think that's also very much what Mike Pence did as well, so that they were sort of putting the investigation in the hands of the prosecutors and the agents to decide how this should be retrieved, what to do with it.
And that's important, right? Because otherwise you wouldn't know where exactly were they found. Maybe they'd been moved by Biden's people or Pence's people, right? Yeah, it's important. Absolutely. And then finally, just to end on the other thing we're waiting on is Judge Ngorun had said that he is hoping to have his decision in the New York civil attorney general fraud case. He is hoping to have that aspirationally by tomorrow.
That is seeking, remember, over $300 million from the attorney general saying should be imposed with respect to Donald Trump. That would be quite the one-two punch from last week to this week, as well as seeking a permanent bar of Donald Trump from doing business in New York based on the conduct at issue. But that's something to keep your eye out. It seems like that may very well be coming down. Imminent. It's imminent and not in the Fonny Willis sense. That's right. It's imminent.
Mary, I think we said this last week, but I really do think this week we may be seeing each other again. Oh, gosh. I'm so loathe now to make predictions. But yes, I do. I really do. You've been burned. I love that we started this with you going, wait, before you could say it, I was wrong. Oh, gosh. That's what I get. That's what I get. Okay. It seems to me, Mary, that the solution is to get back on the horse. Oh, okay. All right. All right. We'll see. We'll see.
See, I'm a terrible influence. Yeah, you really are. Okay, really fun to talk to you. Talk to you soon. Yep, will do. 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. This show is produced by Vicki Virgulina and Jessica Schrecker.
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