If the President Does It...
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Hi, and welcome back to another episode of Prosecuting Donald Trump. It is the afternoon on January 9th, and I'm Andrew Weissman. I'm here with Mary McCord. Hi. Mary, quite the morning. Quite the morning. Yes, you know, most listeners know we usually record in the morning. We deliberately waited to the afternoon so that we could both listen to arguments in the D.C. Circuit Court. This is on Donald Trump's abacus.

appeal of the decision by Judge Chutkan that he does not have absolute immunity from criminal prosecution as a former president. That's what was argued. That's what we listened to. And that's one of the main things we're going to talk about today. Yep, absolutely. There was an hour and 15 minutes, actually surprisingly short compared to some of the other arguments we've listened to. More to come on why that I think that is. We heard from both lawyers for Donald Trump

that is John Sauer and the lawyer for the government who argued, James Pierce. So we'll spend a lot of time sort of unpacking that. Then we'll talk briefly about some other developments, obviously the appeal to the Supreme Court that they accepted of the Colorado disqualification case. So that's actually in the Supreme Court. And then we're going to

do some sort of what's on our radar screen, other things that are coming up that we want to flag for you because they are upcoming things, whether it's the New York civil case, the E. Jean Carroll case. I mean, there are a whole bunch of things going on in New York worth keeping an eye at. But with that, Mary.

Let's dive in. Yeah, let's dive in. So we've talked lots of times about what the arguments are for whether Mr. Trump, as a former president, has immunity for things he did when he was president or whether he doesn't have immunity. That means immunity from criminal prosecution.

But before we get into sort of the nitty gritty of today's argument, what we think the judges were interested in, let's just make sure for people who haven't recently listened to those previous episodes, in just general, in a nutshell, what the arguments of

each side are. So, Andrew, Mr. Trump's argument. Okay, you want me to level set? Yes, that's what I want you to do. Okay, let's get to it. Donald Trump has the following basic argument as to when he says a former president can be prosecuted criminally. One, he says that if the conduct at issue is something that

occurred while the person was the president, but was happening in his private capacity, not in his official capacity. If it was purely private conduct, then he's not making the claim that that was something that's subject to immunity, presidential immunity. He didn't give an example, but you could imagine if it was like you had a personal dispute with your spouse and you engaged in harassment or backstabbing

battery or... He has given an example, though, in his brief, and I think briefly today. He said Nixon's conduct, but he was pushed back on that. Yes. Right. So we're going to get to Nixon because that's actually, you're right. He gave an example, but I think the example actually goes to how narrow his view of what private means. So you're right. He does give an example which all of us would go, wait a second, that's not private.

Anyway, so one is if it's purely private, with Mary, your correct caveat, which is that he wants to make that as narrow as possible. If there's any possible argument for it not being private, it's immune. The second thing he argued, and that's sort of the one that was more the subject of his brief and the thrust of his argument, is for conduct that is not private, that is within what's called the outer perimeter, that is official conduct, he

He says that can be prosecuted only if it meets the following prerequisite, that the president has been impeached and convicted.

Only in that circumstance can the person be prosecuted. And so if you have not been impeached or if you've been impeached but acquitted in either of those circumstances, he says you cannot be criminally prosecuted. So just to be clear, he's saying even if you've never been impeached, you still can't happen. The only way that you can be subject to criminal prosecution is if

Essentially, the House is impeached to and the Senate by the two-thirds vote

has convicted you. And he says, since I didn't fall into that category, this case cannot be brought. So that's his argument. Right. And part of that is then all of this conduct was official acts under his definitions, because as we've talked about before, he claims all that he was ever doing was just doing the types of communications that presidents do. That's a perfect segue, Mary, to I'm going to flip it to you, which is what did the government argue? Because that point about what is in the indictment is a

Is it private? It sort of comes up in the government. Sure. But just to take on what he argued, what you just described him arguing, the government's main opposition to that is there just is no presidential immunity from criminal prosecution, whether it's for your official acts or your not official acts. Because.

because it's not found in the text of the Constitution or in the history of what the expectation was about the presidency or in sort of our constitutional structure involving separation of powers, etc. And importantly, as part of this argument, the government contrasts civil liability and acknowledges that the Supreme Court has recognized that there is limited accountability

immunity from civil lawsuits, which are usually lawsuits for money or else for an injunctive relief in order not to keep doing something, for example. There is some limited immunity for presidents from civil liability when, and this is where we get to your test, the outer perimeter test, when the conduct is within the outer perimeter of the president's official acts.

But the government's position is, so what Trump wants to do is he wants to import that test into criminal liability, this outer perimeter of official acts, and then say everything I did is official. Government says,

That just doesn't apply. Just doesn't apply. That's thing one. Thing two, to get to what you described about the effect of the impeachment judgment clause, the government says the impeachment judgment clause does not establish that it is a prerequisite to criminal liability that Congress has to have impeached you in the House and convicted you in the Senate, that that is not the way it reads.

All that the impeachment judgment clause is, is it is a limitation on what Congress can do as a punishment for high crimes and misdemeanors. And it makes clear that they are limited to impeachment conviction and removal from office and that criminal penalties are completely separate and would come separately. And so the government goes back into history and says there's no support for the idea that you have to be

impeached and convicted before you could be prosecuted for a crime. So they have really responded to both of those two main Trump arguments, I think, quite forcefully. And we can get into now, I think it's a perfect segue into now, sort of what did the court think of these arguments? The court did start off, though, both when questioning Mr. Sauer for Mr. Trump and when questioning Mr. Pierce for the special counsel's office, the court started

started off by asking about this issue we talked briefly about in the past. Do they have jurisdiction to hear an appeal when this case is not final? This case, this is what we call interlocutory appeal because you take an issue up before the end of the case.

And I think many scholars have written and assumed and both the government and Mr. Trump agree that the court can take this up because this is an issue involving immunity, which has to do with the right not to be tried at all. But there was an amicus brief filed that we talked about last week that says, no, no, no, no, no. That only appeals to immunity that is explicit in the Constitution or in a statute. And this isn't.

And so therefore, it shouldn't have been appealed. What did you think about what the court's questions were on that? So as you know, I wrote a piece with some co-authors. It's on the MSNBC website, sort of articulating that theory. I wasn't surprised by the fact that the court was going to address its jurisdiction. It's usually something that

courts are very concerned about in terms of whether it applies or not. So I wasn't surprised. They'd also obviously issued an order beforehand saying that the party should come prepared to address issues in the AMCUS briefs. So I wasn't surprised it came up. Judge Pan, in particular, seemed very on top of those issues. And I wouldn't be surprised if they write an opinion that alludes to it and says that there's substantial...

questions about whether they have jurisdiction, but I do think they're going to reach the merits, which I think is right. They should reach the merits. It also will help if it goes to the Supreme Court that they've reached both issues. And I think that Judge Pan actually signaled that when she said, isn't there something, it's called sort of hypothetical jurisdiction, meaning even though we think we may not have jurisdiction, assuming we do, this is what we would find. So

I wasn't surprised they did it. I thought it was the right thing as a court to be focused on. Or to ask about, at least ask about. Yes, exactly. And I do think, by the way, I think there are good arguments on both sides on this. I mean, I think that the law is not particularly fleshed out in a clear and coherent way. This issue hasn't come up. Right. So anyway, it's definitely not the heart of it. I'm very focused on it in terms of what it means for speed because I'm really...

want to sort of understand when Judge Chutkan's going to get the green light to go back inside her case. Mary, I wanted to ask you about the substance and what stood out to you in the argument in terms of what the court was asking and any surprising or not surprising ways that either side was articulating their position. I think there were three big themes and I want to briefly touch on each of them. One is about just

Judge Pan really pushing Mr. Saro to narrow the issues about what he's really arguing, what it comes down to. And that's where I want to come back to and spend more time. A second big issue is

How do we look at what's an official act and what's a not official act? What does that mean? What does it mean under Marbury v. Madison when the Supreme Court, you know, hundreds of years ago, just after the founding, said that the actions of the president shall not be essentially reviewed by the judiciary? What does that mean when we know that actions of presidents have been reviewed by the judiciary? And they spent a lot of time on that.

And then the third big theme to me was the floodgates argument. If there's not immunity here, does this open the floodgates to sort of repeat political retribution based criminal prosecutions? But on this first issue, Judge Pan and full disclosure, I've known Judge Pan for decades. We've worked together at the U.S. attorney's office. We've been friends for years. I mean, it's not like we have dinner every night or anything like that, but but we do see each other on occasions and have lunch and we're and we are friends.

I think she's brilliant. I've thought that ever since the first day I met her at the U.S. Attorney's Office at least two decades ago. Mary, can I just interrupt you? I assume you mean you've also never, ever talked to her about anything substantive. That's right. Absolutely. Certainly. And not not at all. I haven't. In fact, I haven't talked to her. I got it. I got a holiday card, but I haven't talked to her since she's gotten any of these Trump cases. That's right. Absolutely. Yeah. Yeah. I'm glad you clarify that. You know, because.

Because both of us are sort of in the spotlight. I want to make sure nobody was going to be like, wait a second. You're so right to do that. Thank you. So one of the things Judge Pan really pressed Sauer on, she said, if I understand your argument correctly, you are conceding that if the former president had been impeached and convicted...

for conduct that is the same or related to what he is later prosecuted for, he could then be prosecuted for that even if it was within the outer perimeter of his official acts. So if you've been impeached, you could be impeached and convicted for official acts. And if you were, you could then be prosecuted for those official acts. And Sauer said essentially, yes, it's

And she said, if that's the case, then your concession is that a president can be prosecuted for official acts, does not actually have immunity from official acts. So don't all your arguments, your other arguments about separation of powers and everything else, don't they fall away? And the only thing the court has to resolve is, are you right?

that the impeachment judgment clause means you have to be impeached and convicted before you can be prosecuted? Or are you wrong and you don't have to be impeached and convicted first? In which case, if you're right, you win. And if you're wrong, you lose.

Yes. So, I mean, she was superb. I mean, she was definitely the star of the argument, in my view, because she was like a dog with a bone on that issue and very, very precise. This is where follow-up questions are really, you know, have to be answered. And she kept on insisting on an answer. And so one of the things that she did, which was just, I thought, quite brilliant, was doing the flip side by saying, so let me just understand, right?

When you are making that impeachment judgment clause, which, by the way, none of the judges seemed at all convinced or even remotely that the impeachment judgment clause stood for that proposition. I mean, there was there was a surprising dearth of questioning because it was so laughable. And it was it was surprising to me. Like I was like, wait a second. No one's being asked about that because it's so what do my people call it? Meshuggah.

Okay, good. Okay. So new word. So she flipped that in a way to say, so let me just also understand, and this is the thing that's gotten a lot of press. So you're saying a president could order SEAL Team 6 to

to assassinate a political rival and could not be prosecuted if he hadn't been impeached and convicted by the Senate for those acts. Could a president order SEAL Team 6 to assassinate a political rival? That's an official act, in order to SEAL Team 6? He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution. But if he weren't, there would be no criminal prosecution, no criminal liability for that?

So she trotted out that as the most salacious of the or difficult of the hypos. She gave three hypotheticals, but that was definitely the most, you know, intriguing. Yes. And John Sauer had to basically say, that's right, because I am making the sine qua non of my argument, the impeachment judgment clause. And so since the order to seal Team 6 would be within my official acts. Exactly.

Exactly. It's a presidential function. You could follow that up with a different hypothetical, which people have said, which is if you're making the sine qua non, what about if the murder that is being ordered is of the senators in the Senate so you couldn't actually be impeached and convicted? You could be impeached, but you couldn't be convicted because you kill them all. That, I think, was the

showed just how preposterous this argument is. And it's interesting, though, because you're right. Sauer sort of had to admit that and didn't really cower to do it because his view is this immunity is so great because we can't have a president looking over his shoulder every time he has to make a tough decision worrying about being prosecuted, which is kind of ridiculous because committing crimes in order to

maintain yourself in power when you haven't been elected is very different than looking over your shoulder every time you actually make a decision that is really within sort of your presidential authority. But he retorted with some other hypotheticals, which relates to sort of this floodgates argument, and said, if you didn't have immunity, first, he says, you know, George Bush could have been prosecuted for lying to Congress about the Iraq war. Or he said,

President Obama could have been prosecuted for ordering a drone strike against an American or Joe Biden could be prosecuted by a future president for mishandling things at the border. Now, that one really puzzled me because I'm not sure where the alleged crime is there, but it showed sort of, I think, a little bit the ridiculousness of his floodgates argument to which, of course, the government responded, look,

There have been special counsels ever since Watergate who have done investigations into the conduct of presidents and never have any of them actually sought to bring criminal charges because nothing has ever met the type of standard you need to do that until this case when you do have

a president using private persons as well as those within government to commit crimes in order to stay in office. And the other, in their brief, more than at the oral argument that the government argued was, you know what, there is a check in the system for the floodgates. And you know what that is? The ultimate check? The ultimate check is that the case has to be indicted by a grand jury. And it's not by prosecutors. They do not get to decide that the charges will be lodged. Second,

At the end of the day, a criminal case requires the unanimous finding of 12 jurors in the federal system beyond a reasonable doubt. And it isn't going to be floodgates because you can only be tried once for that. There's a double jeopardy clause so that Judge Chuck can make this point. We're not talking about civil liability where it could be tons and tons of cases over and over again. So there is a whole system in place with lots of checks to deal with

the floodgates problem of not taking the route that is being proposed by former President Trump. Mary, I wanted to talk a little bit about Nixon. You made an allusion to it. It came up in the argument. It came up a little bit less than I thought it was going to come up in terms of the decision. Just to remind everyone that the Supreme Court decision in Nixon was about Nixon himself as a sitting president needing to respond to a criminal subpoena for the tapes.

It wasn't directly about in charging or indicting Nixon himself. He had not been charged. He had never been indicted. Exactly. And so the tapes obviously could be relevant to other people, but also to him. And the court, though, in very broad language, talked about the president is not above the law. He has to respond, et cetera. So it's a very good precedent. But I think, Mary, it was interesting, I thought, in two ways. One is the way I thought...

But you made reference to how Mr. Sauer used it to say that what was at issue there was private conduct, which is so interesting because he was it was a cover up in connection with illegal activity to get people.

President Nixon reelected. That's right. CREEP. Remember the committee to reelect the president with the wonderful acronym of CREEP? So that just seemed like a really tough thing. I think he had to say that. But I mean, my word, if that seems really similar to what's alleged here. It seems pretty similar, doesn't it? Yes. Right. Exactly. And I thought the other was that Nixon himself, in spite of the Nixon decision, Nixon himself

famously after he resigned the presidency and accepted a pardon. Why did he accept a pardon? Because he thought and President Ford thought that there could still be criminal liability for the former president. Nixon famously said, essentially, the Louis XIV line, "Les tassez moi," I am the state. Well, when the president does it, that means that it is not illegal by definition. Exactly.

That is something that we have heard from Donald Trump as well. Yes, absolutely. Now, ultimately, of course, he wasn't willing to rely on that because he he wanted to get that pardon so that he wouldn't be criminally prosecuted. But certainly that's a refrain that originated with Nixon has been repeated.

So I had a question for you, Mary. This whole idea of, I mean, I think it's fanciful, this argument of the impeachment judgment clause is a prerequisite. But I did also think that there is a way for the court to not even have to reach that issue. I mean, I think they should reach it, which is they picked up on something that the government wrote in its brief, which was that Donald Trump, when he was president in the second impeachment trial,

His lawyers said, don't convict here because there is a criminal process that can deal with this later. And I just think that becomes, you're stopped at that point. You cannot then turn around and say, well, you didn't convict me. You just told people not to do it because there's potential criminal liability that can be brought later. Mitch McConnell said the same thing. And if that happened in a normal case,

A judge would say, you've waived that argument or forfeited that argument. These are legal doctrines for when you do that. So Mr. Saar's response was interesting. And remember, you know, this was part of the whole pitch that I shouldn't be subject to impeachment at all. One, I'm out of office now. But also there's another remedy, right? Criminal prosecution, as you just indicated. And I think we've got some clips of that, actually, that we can actually listen to his lawyer making that argument. We have a...

judicial process in this country. We have an investigative process in this country to which no former office holder is immune. That's the process that should be running its course. That's the process the bill of attainder tells us is the appropriate one for investigation, prosecution, and punishment.

And Judge Pan asked explicitly about that. In fact, she pointed to the exact part of the congressional record and said, didn't Mr. Trump's own attorney, and it wasn't you, Mr. Sawyer, but didn't Mr. Trump's own attorney make this argument? And didn't senators rely on that and say that's not why they're convicting? He was president at the time, and his position was that no former officeholder is immune. And in fact, the argument was that

there's no need to vote for impeachment because we have this backstop, which is criminal prosecution. And it seems that many senators relied on that voting to acquit.

His response was, well, that was a completely different proceeding. It's not res judicata, which is kind of like your collateralist abolition. I mean, it's not law of the case. It doesn't apply here in a completely different proceeding, Your Honor. And it would be speculative in any event to think about what the senators might or might not have done. That was all that he could say about that because he does not have a good response. Yeah, this is where it's like, let's go to the videotape. Let's talk about the speculation.

Mitch McConnell, it's your turn. Let's hear from you. - President Trump is still liable for everything he did while he was in office as an ordinary citizen. Unless the statute of limitations is run, still liable for everything he did while he was in office. Didn't get away with anything yet. We have a criminal justice system in this country.

We have civil litigation and former presidents are not immune from being accountable by either one. So, Barry, final question I have for you on the argument is sort of how soon do you think we should expect a decision?

And what do you think, if anything, in terms of what the court might do to try and tighten up the timeframe? Something we've talked about, because the normal timeframe for seeking en banc review, seeking rehearing, seeking cert in the Supreme Court, all of that is this timeframe that just doesn't work with trying to get this case to trial before the general election. That's right. I expect this court to issue its ruling very quickly. I think it'll be within a week. Wow. Wow.

Wow. Yeah. Wow. Okay. Just based on how fast they ordered the briefing. I think that they're prepared to move quickly. They've obviously read everything. It's not like they've got to go back and refresh themselves. Like to my mind, having argued many, many cases in the appellate court, I always wish I could have argued right the day after I filed my brief while it was fresh in my head. So I can imagine writing opinion. This is the easiest time. They're going to have to decide what they agree on though. And listening to the three judges,

I did feel like they all were very, very skeptical of Mr. Sauer's arguments, but there are different ways to get to a final result. And then there are different ways about how that result might look, right? Like, is it going to be there's no immunity? Is it going to have this little bit? There's also this jurisdictional question. Or is it going to be we think there might be immunity for official acts, but we don't think these were official acts alleged in the indictment. But we're going to send that back to Judge Chutkan because that's also a possibility.

So I think they will act quickly. A week might be too fast, but I do think it will be soon. And one thing that Mr. Sauer said, he said, Your Honor, we ask you to reverse the court below. But if you rule against us, do not issue the mandate right away. Give us a chance to seek further review. Because remember, last week we talked about Jack Smith saying, please issue the mandate within five days of

And that mandate is basically the order for the district court to go ahead and get back to work. The stay would be lifted unless Mr. Trump or Jack Smith sought a stay from a higher court. And so that sort of is a forcing mechanism to mean you've got to move more

quickly for rehearing en banc or for cert. Now, we don't know what this court will do, but I could definitely see them shortening the normal time period for the mandate because normally you'd have 45 days to seek en banc review. We talked about that last week. That's reviewed by the full court and another 90 days. And I misspoke last week and said 60, but it's 90 days to then seek cert after that.

So they've moved this fast. They don't want to see this drag out. So I think they'll put some limitation on the timeframe and say the mandate will issue in, I don't know if it'll be five days, 10 days. A week or something. Yeah. Exactly.

So once again, we're in violent agreement. Let's take a quick break and then we'll come back and turn to these minor issues, like whether the president is disqualified from running for office if he's engaged in insurrection. That's a small issue. And then some other things we're keeping an eye on.

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Welcome back. So now, as promised, let's talk a little bit about what's going on with the Colorado Supreme Court's decision to keep Mr. Trump off of the ballot because he's disqualified under the 14th Amendment, Section 3, for having engaged in insurrection. That is now in the Supreme Court. It's interesting because...

As we've talked about before, the Supreme Court refused to accept this immunity case before it went to the Circuit Court of Appeals. Here, they accepted this 14th Amendment case. Now, that one was not leapfrogging any court.

court, right? Because that was an appeal from the highest court of a state. There's two ways you get to the Supreme Court, review of a decision of the highest court of a state or review of a federal court of appeals decision. So they weren't leapfrogging anything. But do you make anything, Andrew, of the fact that they accepted one and at least for the time being rejected the other? You know, I don't know. There is a school of thought, and we've talked about this, that when the D.C. Circuit

rules on the question today that the Supreme Court may just keep its head down and say, "We don't take cert on every issue." And in fact, they usually don't take the cert. I mean, the vast, vast majority of cases, they say no to. I do see two reasons why they might take it.

One is that it has not been directly decided before, and it's an important issue for them to put their imprimatur on what the law is and to stand, I think, for the rule of law. The second is probably political in a small p sense, not in a sort of Democrat-Republican, which is if they're going to reverse the Colorado Supreme Court,

They're taking this case and ruling against Donald Trump, which I think is what would happen. It allows them to at least appear to be splitting the baby and not be siding with one side or the other. And this goes to something you and I have talked about off air, which is I think that people should understand that in the appeal process,

that the court is going to hear with respect to disqualification, that there are many, many issues in that case. What is an insurrection? Who has to find it? What is the standard of proof? Does it apply to the president? Is it a justiciable question that the court can even review? Yeah, all these things. Exactly. A lot of issues, any one of them,

can be dispositive for Donald Trump, meaning of all of those issues, he only has to win one. The plaintiffs have to win all. And just based on that, you know, if you're just thinking about odds, when this obviously is an issue of very much a first impression, that people should be aware of that. One of the things that I am concerned about is not so much the

This is the legal versus political issue, which is, I think that when the decision comes out, if it is in favor of Donald Trump, he will be using it to say, see, I'm vindicated. See, this was a witch hunt. I am the phoenix rising from the ashes. He'll use all this messianic

language that he's been, this very scary messianic language that he's been using. And I think that's just the wrong way to look at it. And I think people need to be prepared that

This is an important issue for the Supreme Court to decide one way or the other. There's no question it is not a frivolous issue for either side. These are important issues that have not been addressed. And so I am very much in favor of the Supreme Court weighing in on this and setting out what the provision in the Constitution means. But I think it needs to be viewed in that kind of dispassionate way.

in terms of this is why you bring a case so that you can get that, you can get those answers. Yeah. If you never, if you never seek to enforce the 14th Amendment, Section 3, you're never going to have those answers. And if ever there was a case where it makes sense to see what it means, it's a case where there's certainly substantial amount of evidence that the former president, when he was president, engaged in insurrection against the Constitution of the United States.

Absolutely. Factually, I mean, we've seen this in Colorado. We've seen this in Maine. There isn't really a serious dispute. And I think that that's also important for the public to remember, that whatever the court decides with respect to how the 14th Amendment applies, whether it applies to the president, I don't think they're going to seriously dispute.

review the actual factual determination, at least not de novo, meaning brand new review the way that Mr. Trump wants. Whatever they decide on the law, the American public should keep in mind when they're thinking about voting what courts now have found and what the evidence has shown about engaging in insurrection. It's just important for the voters. So we'll see. This is going to be accelerated briefing. The first briefs will be due on January 18th.

The opposition will be due January 30th, and I will flag here the opposition by that we're meaning the original plaintiffs in the case and potentially Secretary of State Jenna Griswold, who did not oppose cert. They opposed it on certain issues, not others. They didn't oppose cert. They will certainly be opposing Mr. Trump's arguments up on cert. That's due January 30th.

Reply briefs, February 5th. Argument, February 8th. That's how fast this is going to be moving. So, you know, to be continued. Right. Really similar to what we just lived through in the D.C. Circuit, which is very, very expedited, but it should be. OK, so I think we have to pause here. And after this break, we'll give you a very short list of what is on our radar in the coming days and weeks. Back in a moment.

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OK, welcome back. So, Mary, what's on your list? Well, I mean, really, we're only going to have a day break, I guess, before the next sort of big Trump related court hearing, which is closing arguments in the New York civil fraud case. That's the case we've talked about while that trial was going on. This involves the alleged fraud in Texas.

the valuation of Trump assets for purposes of obtaining bank loans and insurance and so on and so forth. And I know you spent some time this weekend reading Attorney General Letitia James' lengthy, very lengthy closing argument brief or brief really proposing findings of facts and conclusions of law for the court to consider. What are your takeaways from that? Two quick thoughts. One, Letitia James' brief was

What I would say is that half of it was very good. What I mean by that is it was kind of half a brief. It was extremely strong. I mean, you read it and you're just like, this is a very good case in terms of proving up what they say is $370 million in disgorgement, who should be barred from practicing and being licensed to do business in New York, etc.

etc. It's half a brief because it doesn't really take on what the defense presented and why the court shouldn't be swayed by that. So it presented their case, but it didn't really argue the other side. So I'll be interested at the oral argument on Thursday, whether both sides do that. By the way, I thought that was true of the other side as well. There seemed to be a lack of sort of wrestling with the counter argument. There was one thing that was I

fascinating, buried in the state's brief, which was it said some of the money, the sort of ill-gotten gains that Donald Trump got, some of that money, they say, in their brief was used for, wait for it,

The former president's 2016 presidential campaign. Yep. Pretty surprising. Well, maybe not surprising. I don't know. I don't know what's surprising anymore. Yeah, right. Exactly. So what else is on the radar? Okay. The other is next Tuesday, we have E. Jean Carroll's

Take two, which is the second defamation case that is before Lewis Kaplan, an esteemed Southern District federal judge. He actually just issued an order today, very similar to the order that Beryl Howell issued in the Rudy Giuliani case, saying that what it is that the parties can argue to the jury and what they cannot argue.

argue to the jury because there are very clear restrictions given what had previously happened in the litigation. So there's certain things that Donald Trump can say and argue and certain things he won't be able to argue that are impermissible in that case. So that's going to be an interesting case. It is really, remember, this is a case where it emanates from E. Jean Carroll saying she was defamed and she was sexually assaulted. One jury has already come back

in her favor and awarded her substantial damages. But according to E. Jean Carroll, and we all heard it, the former president continued to make statements that she says were defamatory. It's pretty hard to think that they're not because they're substantially identical to the statements that were already made and found by a jury to have been defaming. So it'll be an interesting trial.

I think the big picture, Mary, for me is we have spent most of this episode talking about somebody saying that my position is that I can order SEAL Team 6 to assassinate a political rival so long as I don't get impeached and convicted for it. And there's no problem with my running for office and being the leading candidate of the Republican Party saying,

even though I have been found to have sexually assaulted

E. Jean Carroll, not by prosecutors, not by plaintiffs, not by a judge, by jurors, by civilians who sit and listen and have taken an oath. And that's where so many people in this country have sat as civil and criminal jurors. And I think everyone knows, and I've felt this way when I was a trial lawyer, I had deep, deep respect for jurors.

And I really think they rise to the occasion and take their oaths really seriously. So when you have a verdict, it doesn't mean that every now and then there isn't a verdict you disagree with and you think they got it wrong. But I think that people take it so seriously. And we're dealing with such an unusual situation, not just because of what Donald Trump did, but the idea that so many people seem to be overlooking what he did.

you know, one thing after another, after another. So, so much more to come. Mary, it's always so great to break it down. I loved it when it's like, what are you thinking about? You already had your appellate mind, like totally locked in where you're like, I've got three themes for you. It's great. Mostly came from the judges. They did a really great job. So great. See you next week. Talk to you soon.

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 Virgolina and Jessica Schrecker. Katherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening, author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening. Search for Why Is This Happening wherever you're listening right now and follow.