Georgia in the Spotlight
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Hello and welcome to another episode of Prosecuting Donald Trump. It is Monday, September 11th. I'm Andrew Weissman and I'm here with Mary McCord.

Hi, Mary. Good morning. Well, for us, it's morning. Exactly. It's also 9-11. I think it's probably worth at least reflecting for a moment for probably all Americans, but you and I both in government for so much of our careers, I have to think every 9-11 about what happened 22 years ago and how much it

completely changed the lives of all of us. Absolutely. So I can see the Freedom Tower from where I live. And at some point we should really compare notes. I was in the government at that time. I was driving my dad to work and actually saw the plane that hit the Southern Tower of the World Trade Center. But having been in national security, I totally agree with you that it is particularly evocative. Yes.

So we're going to switch to something really different. But also something that has arisen because of the threat to the country and our democracy and I think our national security. You know, at that point in 9-11, we were so, because of that, so looking outward. And as we talked about in the Mueller investigation, we were looking outward. But today we're going to be looking inward. That's right. So we're going to talk a lot about what happened in Georgia. Yes.

Yes. Because this past, it feels like week, but I can actually say it feels like 48 hours. There has been so much that happened. Yes. So one huge development was the decision by the federal judge, Judge Jones, who

rejecting in a 49-page decision the removal petition by Mark Meadows. That is to remove the Georgia state criminal case to federal court. So we're going to get into all of those details. Yeah, that was a huge win for Fannie Willis. And we've got several more removal motions that the judge will be hearing, I think, this week. We'll talk about that.

But we'll also talk about something else that came out at the very end of last week, which was the report of the special grand jury from Fulton County, Georgia. And this was not the same grand jury that returned the indictment charging 19 individuals, including Mr. Trump, with a RICO conspiracy and other charges. This was the special grand jury that had investigated before that and made recommendations about who to charge. And it's pretty clear, having now seen that report, which is really less a report

Yes.

Jim Jordan, who, by the way, I just realized a lot of people spell it G-Y-M because of his history, which anyway, but Congressman Jordan had sent a letter that was very akin to the letter he had sent to Alvin Bragg, the Manhattan District Attorney in charge of the criminal case there. He had sent one to Fannie Willis and she responded, yes.

And we'll talk about that response and sort of try and also deal with big picture what this means. What's the threat, if any? What's the systemic concern about what he is doing? And he also just sent another letter to Jack Smith wanting to investigate some potential

purported issues in his mind about the handling of grand jury matters in the Mar-a-Lago investigation. That's like a perfect segue to this idea of the systemic problem, Ray Spam. Let's dive right into the decision by Judge Jones on the removal petition. And maybe I'll start by giving you just some of my thoughts that sort of struck me in no particular order. So,

I agree, there's huge win because this is one where the law is very favorable to removal. That the reason for allowing removal, the big picture is...

is that the federal government was concerned about states improperly interfering with constitutional action by federal officials. And there are 50 states, and they wanted to protect federal officials from that kind of interference. And I thought one of the best big picture comments from Judge Jones is on page 46, where

After going through all of the details in the different prongs and why he ruled one way or the other with respect to them, we can get into that. He said grant removal here would be completely antithetical to the purpose of the statute because the statute was to protect people.

federal officials from improper state interference. And here, what is alleged, and we know, is it's the converse. This is constitutional state action, independent grand jury making a determination about criminal conduct

And it's improper federal appearance into that state action, which Donald Trump and his allies and conspirators are alleged to do. I just thought that was a really good big picture. What is it? Realpolitik? Is that how you say it? Absolutely.

of sort of trying to see, look, that's what's going on here. I totally agree. Yeah. And it reflects on the very next page, 47, he kind of sums up how that jives with the rest of his analysis by saying the court would have to turn a blind eye to the express constitutional power granted to the state

to determine their election procedures, as well as federal statutory and regulatory limits on political activities of election and branch officials if he were to accept Mark Meadows' arguments. And I just want to zoom back to the beginning of the opinion for a minute, because the reason he came to these conclusions is he said, look,

I've got to analyze a few things. I've got to figure out what is the gravamen of the offense with which Mr. Meadows is charged? Is it like,

single overt act that he's mentioned in, or is it the overall conspiracy? And he says, I've got to first determine that. Then I've got to determine what is the role of the chief of staff to the president of the United States so that then I can decide whether the actions of Mark Meadows that form the gravamen or the basis of

of the crimes he's charged with to determine whether those were done under color of his office, right, within his official duties as the chief of staff. And so he looks at the Graveman offense and he says, it's not just a single overt act. It is the conspiracy, this entry into a conspiracy to override the will of the voters in Georgia,

And so even if there was a single overt act that was within Mr. Meadows' responsibilities as the chief of staff, that alone wouldn't be enough to remove it.

so long as that's not the basis of the crime against him. But he says that's not the basis of the crime charged against him. Then he takes a look at Mr. Meadows' job as a chief of staff, arranging phone calls and traveling with the president wherever he might go. Even when he's going to political events, he has a job traveling with him. He doesn't have a job

engaging in those political activities, which is the next thing he looks at. He says, well, if this is part of his job, arranging phone calls, traveling with him, giving him advice on things, what was the gravamen of this offense within the scope of his duties? And there's two ways he analyzes that. He says, first, elections, state elections, including for the president of the United States,

the administration of those by our constitution is given to the states. And that's the elections clause that was in the news a lot last year because of a Supreme Court case that interpreted in many ways that elections clause. And that's the clause that says,

The states shall determine the manner of choosing representatives and also the electors clause. The states shall have been responsible for the manner of choosing the electors. And he says executive branch officials don't have any authority over elections like this. This is really for the states. And then secondly, he says.

Mark Meadows, by his own omission, said that some of these things were political activities and political activities are not within the power of or the authority or official duties of the chief of staff to the United States. So if the executive authority doesn't involve interfering with or trying to

get involved in state administration of elections or choosing of electors, presidential electors, then clearly it can't be within the chief of staff's responsibility. And similarly, if these are political activities, it can't be within Mr. Meadows' responsibilities. And so his ultimate conclusion, which is interesting, is he didn't even get past step one of

removal, right? Step one was you've got to show it was within your official duties related to it's a low bar. The judge said he didn't even meet the low bar. So I don't even have to look at what his federal defenses would be because he hasn't even met this low bar of showing he was engaged in the grab him offense goes to things that he was doing under color of his official duties. That's that's like a great summary of sort of how he essentially got around

problem because he found that there was one allegation, one overt act in the criminal case where there was an allegation with respect to Mark Meadows that he said could meet the low threshold of being within his job function. And that was the communication with Congressman Perry.

And he said it could just be the way it was pled and there's no context there. And if it had been pled differently, perhaps it would have been campaign related and thus not been a problem. But he has to deal with that. And he basically says, as you said, the overt act is not really the heart of

what's going on or the graph of him. And I think he uses this key phrase, the heart. And so that's how he deals with that. I thought there were a number of things that were really interesting. So one, it was incredibly high tone. And I think this in some ways is because of the ethos of the 11th circuit where people are very courtly and collegial. So he does not

come out and say Mark Meadows lied on the stand, but he did. I mean, and it's so clear that's what he thinks. And he has all these euphemisms for it. And he even drops a footnote and says, I don't want to prejudice Mark Meadows in an ongoing criminal case. And

And so it's clear that's why he's not saying it. But Mark Meadows testified he didn't commit a Hatch Act violation. He said that everything was within his official duties. But that's not what the court found. So I thought it was just fascinating that he didn't come out and say it. And I think...

He was so protective of a defendant's rights. And I think it'll be interesting to see when it gets to the 11th Circuit on appeal, because Mark Meadows is appealing it, it's as his right to do, how they deal with Judge Jones being so deferential, curious.

to defendants' rights, not Mark Meadows being treated like any defendant. And I thought the same thing with respect to, as you said, he didn't get to the second ground, which was the defenses. And he again says that he didn't do that because, again, he didn't want to prejudice him for

Going forward. Because he can make those defenses in state court. Absolutely. And so he, again, was trying to be very deferential. But I think it's pretty clear that if he found against him on ground one, I think it's even harder on ground two. And frankly, I think the over-the-counter problem is less of a problem with respect to

the second ground. But just to be clear, by the Judge Jones not making all those findings, it doesn't mean on appeal that the Court of Appeals can affirm for any and all reasons. So it'll be interesting. And really what he was doing, he was

Less meaning not at all.

And he then explicitly says, I'm not making determination whether he violated the Hatch Act. That's for somebody else. Right. But, you know, I am considering I am considering his own admissions, his own admissions about political activity. So, yes, I think he was being very careful and like you say, very deferential. The other thing that he made sure to do is to state at the end of the opinion, but

that anything that he was saying in this opinion shouldn't be interpreted to suggest that he's predetermined anyone else's removal motions, that each one of those will be assessed on the evidence adduced at the hearings coming up.

and his application of the law to those hearings. He says the court makes clear its determination on Meadows' notice of removal and its jurisdiction over his criminal prosecution does not at this time have any effect on the outcome of the other co-defendants who have filed notices of

Now, I do think it's worth talking about those a little bit. The other defendants who have filed notices include Jeffrey Clark, the former acting assistant attorney for the Civil Division of the Department of Justice, and the three Trump opponents.

presidential electors, all claiming they were doing things under color of federal office. A very interesting and creative argument by the presidential electors because, of course, they are appointed under state law, contingent on their candidate winning. And those things will be heard by Judge Jones. By the way, my joke on that, Mary, was, you know, they're the fake electors, so they can have a fake removal. Right. That's right.

And that's kind of what Fannie Willis says in response to that. Exactly. Like you can't manufacture your federal officership by being fake electors. Now, of course, the other co-defendant who has not yet filed a notice of removal, but who has indicated an intent to do so in a very strange filing saying we might be filing a notice of removal is Mr. Trump. Yes, I may be doing this and I may not.

Which is just a weird filing, but it's basically, don't forget about me. But one of the things, obviously, he can do this. And obviously, the judge said, I'm going to hear everything sort of de novo. But, you know, the judge has set out his view of the law. And obviously, somebody can object to it and somebody can be heard again. But it's not a great sign for any of these people because the judge obviously has thought about the law and has written his opinion. But he's clearly said, I'm going to let everybody hear.

challenge that as well as, of course, present their own individual facts. In other words, I'm giving everybody due process, right? I'm giving everybody their day in court. Right. But one of the things is, remember, Mark Meadows had to testify to carry his burden. And didn't carry his burden. Exactly. But Donald Trump is not testifying in that hearing. So exactly how he's going to carry his burden, other than maybe relying on the Mark Meadows testimony, which we know didn't work for Mark Meadows. So it's certainly not going to work for the president.

So he's in...

a much worse position than Mark Meadows. I also thought just one quick aside that kind of connects the Georgia removal hearing to what's going on in the federal D.C. investigations. Remember we talked about that overt act that the judge said this communication between Mark Meadows and Congressman Perry is the one thing. And we should be clear that the overt act just basically says,

He contacted Perry to get a phone number of a Pennsylvania state legislature. There's no content there. Exactly. What he wanted to have the phone call about or anything like that. Yeah. So that's why the judge said, you know, if there was context, it may be, in fact, campaign related or about sort of undoing the election. But it's not pled that way. So Jack Smith has been trying to get authority to search for.

the contents of Scott Perry's phone. And that was litigated before then Chief Judge Beryl Howell, who issued a ruling that was very favorable to Jack Smith because Perry's basically said it's protected by the speech and debate clause. And his argument was basically, I'm a walking speech and debate clause bubble. Right. It follows me around a little like the dust cloud for a pink pen. It's like wherever I go, I've got the cloud. Right.

And it covers me. Everything I do, basically, is speech or debate. I didn't mean that in a derogatory sense. It just sort of came to me. I mean, he is a sitting congressman. Right, right, right. Yes. It's just illustrative, figurative. Exactly. But, well, we don't know exactly what's happened, but

on appeal, we know that it was affirmed and reversed in part, but the decision is not public yet because the Court of Appeals gave the parties an opportunity to be heard as to what should or should not be redacted from that opinion. So Jack Smith is still trying to pursue that angle of the communications between Meadows and Perry, and frankly, Perry and a whole host of people as to terms of what

Perry was doing, if anything, to aid the undermining of the federal election. So there was just a very interesting cross-current because it's clear both at the state and federal level, not all the facts about that are yet known. And we'll know more in just a couple of weeks when there's a deadline for the parties to get back to the Court of Appeals. And we'll get the decision probably with some redactions, and we'll be able to examine that

I actually thought Beryl Howell's decision was really great. So I'm sort of interested to see what part they agreed and disagreed on. But that's to be continued. Yeah. You know, just in a real nutshell, to be covered by speech or debate, immunity, that means not just you can't be compelled to go testify about something in violation of that immunity, but the D.C. Circuit has interpreted it to mean that you can't even be compelled by a search warrant to turn over someone

information that would be protected. And that is a little bit of an extension of the speech or debate clause that is not consistent with some of the other circuits. But even there, it should be information that has to do with the legislative act. And so this was, as I understand it, Scott Perry's personal cell phone. And so I'm sure there's all kinds of stuff on there that has nothing to do with legislative act.

and probably has nothing to do with the scope of the search warrant. So that's pushed out. But there would be good arguments. And those are things that Beryl Howell had determined. And I think at least in part, the circuit determined because they didn't fully reverse her. There are other things on there that are relevant to Jack Smith investigation and Scott Perry's involvement in sort of the lie about election fraud that are not legislative acts that are not protected. So that's where we'll see if and when we see the opinion.

More prosecuting Donald Trump. Georgia in the spotlight in just a moment. As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall.

Extraordinary levels of enthusiasm from Democrats for the fight ahead. The Democratic National Convention. Special coverage this week on MSNBC. So Mary, something incredibly unusual happened, which at the federal level we never, ever, ever see. But see Jim Comey, which I'll get to. But there was a special grand jury quote report. As you said, it's not really a report, but it is a list of

people and the tally of votes with respect to who the special grand jury thought there was probable cause to commit certain crimes. And what's so unusual is that this was even public.

because at the federal level, it was drilled into us this so-called put up or shut up rule, which is someone's either charged or they're not. There's no gray. And so one of the reasons I mentioned Jim Comey is because we were trained if somebody's charged,

then they have all sorts of rights and you can talk about them at trial. And then obviously after the verdict, you can talk about them, but until then you can't. And if they're not charged, you can't say anything. And that's why when Jim Comey famously said, oh, we're not going to charge Hillary Clinton, but let me just tell you my personal views as to what she did, which, you know, it's just not- It was jaw-dropping for those of us at the Department of Justice. That is, I was, I remember being- I was watching it literally with my jaw dropping.

Me too. And I was on the phone with my boss at the time, and we were speechless. We were so horrified. And it had nothing to do with politics. It had to do with a fundamental violation of the department rules. But anyway. But this is why in Jack Smith's indictment, you see unindicted co-conspirators are number one, number two. You don't just name their names and drag them through the mud. Now, of course, the rest of us named their names, but we're not at the

Exactly, because we can sort of figure it out. But anyway, so this is something that's allowed under state law. Unlike federal law, it's the special grand jury, not the regular grand jury. And they had a whole list of people. I'm going to give you my quick take, Mary, and then I'll turn it over to you. Which is, one, because of that federal experience, I just thought it was so unfair to have people who are not charged get

be named. And so that was sort of my first point, a little bit like we talked about with our reactions to Jim Comey. And the other is, I just think people need to remember that

You could have a grand jury that thinks somebody should be charged based on probable cause. But when you're a prosecutor, you're not looking at it is true you could charge somebody based on probable cause. But you're not going to do that because you know that you have to prove the case beyond a reasonable doubt to a trial jury. So the fact that a special grand jury might think there's probable cause is obviously false.

a prerequisite, but it's necessary but not sufficient. And so you do have to make an independent judgment whether you think there's enough proof to get you to the whole way because you hardly are going to charge somebody and then have the case dismissed because you can't prove the higher standard. So we just don't know in this situation if that's what's occurring and if Fannie Willis correctly

you know, with the new grand jury made that determination. It's insufficient evidence. I don't even know from reading this report if Fannie Willis or her deputies sought recommendations with respect to all of these people. That's not clear at all. The report talks about the district attorneys presenting the special grand jurors with the applicable statutes and procedures, but

But that all of the recommendations in the report, it says, are the sole conclusion of the special grand jury based on the testimony presented, the facts received, and their deliberations. So they recommended charges against far more people than Fannie Willis actually sought charges for with the grand jury that did return the charges against 19 people. They also included lots of different offenses that are not charged.

in Fannie Willis's actual indictment. And it goes, you know, charge by charge, person by person on what the vote is in that special grand jury. And so I think a couple of things come from that big picture like yours are that

Clearly, Fannie Willis was exercising prosecutorial discretion about to whom to seek charges against and what charges, right? And part of that, as you indicated, would be based on the people and charges that she thinks she has the evidence to prove, right?

beyond a reasonable doubt in a trial where there will be a defense attorney arguing on behalf of the charged person. In the special grand jury, there was no defense attorney coming in there arguing on behalf of each one of these people where they made recommendations. And so I think this is actually a good illustration to sort of rebut allegations of political prosecutions, etc., because

You can really go through this and see how much discretion she exercised in not seeking charges. And some of it could have been based, for example, the recommendations with respect to three sitting senators, Lindsey Graham and Kelly Loeffler and David Perdue. They had more no votes than many others. Most others were negative.

at most one person voting no, sometimes zero people voting no. Those were a little bit more in dispute. I think for Lindsey Graham, some of the charges, there were seven people voted no. And so if you're the district attorney, you're thinking, that's not a great vote for me.

But there's other reasons, too, right? Some of the recommendations with respect to those senators were about things that were referred to as sort of the nationwide efforts to undermine the election, including not just those senators, but also people like Michael Flynn and some of the others who'd been involved more all around. And she might have wanted to focus specifically on Georgia, right?

We know that Senator Graham's testimony was in conflict with Secretary of State Brad Raffensperger. And so a special grand jury might have thought we can't really assess credibility. So there are lots of reasons that might have gone into her deciding. And of course, speech or debate like we've been talking about. That's another reason that she might not have wanted to bring charges against sitting senators. I love your point that maybe the biggest take home from the special grand jury report in air quotes is,

is that it shows... It's not so much what it says about the people who are not charged, but it says a lot about her exercising...

appropriate prosecutorial discretion and that the people who are attacking her as just some rabid people, i.e. Donald Trump, attacking her, really have it wrong. She is exercising appropriate judgment. I also thought one thing when you were talking about the vote, it reminded me that when I've done long-term grand jury investigations, whether it's organized crime or Enron or the special counsel Mueller, with a long-term grand jury, getting that feedback

and it could be through a vote, but it also could just be through questions and comments from grand jurors. It can be really useful to...

to get a sense of what people are thinking about the proof, about the credibility of witnesses. And so that is something that gives a little bit of data to the government in assessing their case. But now let's turn to something I know you care a lot about and feel strongly about, is that the

Congressman Jordan sent this letter, as he did to Alvin Bragg, saying essentially, I want all this evidence. I want all these answers. I want all this information. And my quick take on this, Mary, was this is coming from a Republican who heretofore believes in states' rights. And you know where that

one of the preeminent states' rights is local criminal cases. Traditionally, most crimes in the United States are at the state level. It's like 99%. It's very little happens federally. Even though we were federal prosecutors, that's not where the action really is. Yeah.

Yeah. And that's a key part of federalism, right? The Constitution is built on this notion of, you know, federal obligations and duties and rights and states' rights include the police power, which is generally criminal prosecutions, unless, you know, the federal crimes have to have a specific federal nexus, either...

interstate commerce or other things that are clearly within Congress's constitutional power to legislate. Otherwise, they're left to the states. It is ironic that here is Jim Jordan trying to interfere with both Alvin Bragg and Falani Willis in bringing their state prosecutions. But he hasn't stopped there. He has also been seeking to interfere with the Department of Justice. I mean, his whole weaponization

or subcommittee was all about looking into the weaponization of the Department of Justice and his new missive just last week to Jass Smith seeks a bunch of information about one of the prosecutors assigned to the special counsel's office and his dealings with

Walt Nauta's attorney, Stanley Woodward, who also happens to represent a number of other people connected to Mr. Trump in ways that certainly do seem to present some conflicts. So, Congressmember Jordan has been really trying to muck about. And while he has the power to hold hearings and to issue these kinds of letters, it's limited because if he were to try to do a referral

for contempt, for instance, to Jack Smith or Fannie Willis or Alvin Bragg, even if he could get the votes. And it's not totally clear to me he could because the House majority is so slim. And some people, I think, could balk. But even if he could hold the whole House together on the Republican side,

This is going to go to the Department of Justice to decide whether to enforce it in the same way they decided not to enforce with respect to Mark Meadows, for instance. And so the idea that the Department of Justice is going to enforce the subpoena, that if they think that the subpoena is a part of a weaponization by Jim Jordan, then that's not going to happen. In other words, they will decide it based on their merits.

But, you know, so far, I think both Alvin Bragg and Fannie Willis have done the right thing, which is that they said, these are all the reasons you're wrong. And with respect to the one issue where Congress does have some role, which is how is my funding, how is the congressional funding being used? Both prosecutors in Manhattan and Georgia answered that.

and gave the details. So they actually understood that that was the limited role that they could play. And they gave really cogent answers. And that's going to protect them, I think, if Congress were to try and take the next step. So I'm not that worried about sort of big picture. But it is the idea that you really do have Jim Jordan and his allies in the House,

doing exactly what they're investigating. They're purporting to investigate the weaponization of the Department of Justice. Well, they should be talking about the weaponization of the House of Representatives by themselves. It's such a undermining of the rule of law. It is. And, you know, for people thinking, well, wait, didn't the House Select Committee investigating January 6th seek lots of information? Yes. And House committees and Senate committees can seek information and they have broad

authority to seek information, but it is so long as it is in furtherance of their constitutional duties, which include legislating. Their constitutional duties do not include, as we've been emphasizing here, supervising criminal investigations at either the state level or the federal level.

And, you know, as I've indicated previously, there were some really sharply worded things that were, I think, condescending toward Congressmember Jordan in this letter. But overall, the letter legally was so solid. And certainly he deserves some of that condescension because his requests are ridiculous. And he treats no one really with respect if he's if he perceives them to be a political opponent. Yeah. And without getting into sort of whether it's right or wrong, I mean, her

She's the leader of an office where she's had to deal with members of her office, the court staff, court members being threatened as a result of the kinds of conduct and the things that Jim Jordan is doing. She herself has been subject to that and in a way that's so deplorable because it's at so many different levels. It's because of her job.

and also her race. And all of that is are exacerbating factors. And so she needed to send that message. She's got her teams back. And also that he's done nothing to recognize the threats and, you know, pressure that's been brought to bear on them that he is contributing to by his inquiry. So, Mary, you know, it's so great. We're here talking on Monday about

But we're going to see each other again this week. On Wednesday, yes. Live, because Wednesday evening, you and I are going to be at the 92nd Street Y with the inimitable, the great and wonderful Nicole Wallace. And so the three of us will be there. And that will be a special episode of Prosecuting Donald Trump that will come out shortly thereafter. I'm really looking forward to it. It's part of our live...

tour. And then Mary will be later this month at the Texas Tribune Festival. And then finally, beginning of next month, we'll be in my hometown at NYU. 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. As we mentioned, we'll be back Thursday with a special live episode moderated by MSNBC's Nicole Wallace. The senior producer for the show is Alicia Conley.

Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Aaron Dalton, Fernando Arruda, and Harry Culhane are our audio engineers. Jim Aris 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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