Deep Dive
Shownotes Transcript
Hi, welcome back to another episode of Prosecuting Donald Trump. It is Tuesday, February 13th. And Mary, I'm here in a snowstorm in New York. I don't know what it's like in Washington, but I'm actually looking out the window and there's been snow falling like crazy, which is great because it's barely happened this year. So I love it. Drinking coffee and
Coco. We had a real, you know, fast and intense bunch of snow come down while I was having my coffee this morning. Now it's gone and it actually looks like the sun might pop out. So it's moving up to you. So let's start the first of the four hours. It's like grab bag. Lots going on. There's just so much going on. So I think what we were talking about is we really wanted to give people like
What's going on and what's coming up imminently? I mean, truly imminently. Like in two days. Exactly. So there's a lot of pieces. Obviously, the most important thing that we're all keeping our eye on is that Donald Trump filed his papers yesterday in the Supreme Court asking for a stay. So we're going to talk about that. A stay of the immunity decision. Yep.
Exactly, in the D.C. case. So what else you got, Mary? Then there's been all kinds of activity in the Mar-a-Lago case. That's the kind of funny case that goes really like asleep for several months and then it springs to life and you get all kinds of motions. And a lot of the recent motions involve some bickering, I'd say, back and forth between Jack Smith and the defense. So we'll talk about that. Yeah.
It's like the zombie case. Yeah, yeah, that's right. You know, one of the reasons it doesn't take on more of a life of its own is because I don't think anyone really thinks that Judge Cannon is going to schedule this before the election. Yeah. Which is a shame. But anyway, we're going to talk about all the moving pieces and then sort of a series of things to really keep your eye on in Georgia and two things in New York, not just the civil fraud dispute.
decision, which we're going to talk about, but also the criminal case. The first criminal case ever brought almost a year ago, not quite, but getting close to a year ago. Yeah. So we're going to cover those so that you have a, I know this isn't the right phrase you can use anymore, but I was going to say the TikTok of what's going on. But I said that and my students were like,
TikTok, like social media? Yeah, you're right. Exactly. They're like, you are so 19th century. No, we're so government. You still call it a TikTok, I think, in the government. Oh, I love that. We're so deep state. Okay. That's good. That's great. Exactly. Okay. So we got the filing yesterday. What does that do in terms of the stay? Because that's sort of the main thing is that the D.C.'s decision had said there's no immunity. We talked a lot about that case, but then they said there's a stay in effect until...
Unless and until, but yes. Exactly. So where are we in terms of the stay and what it is that Donald Trump filed and what is he requesting? Right.
So as everyone knows, the D.C. Circuit, at the end of its opinion, and actually it's actually is in the order that went along with the opinion after it said there's no presidential immunity from criminal prosecution. It did something a little bit unusual. It says we are going to issue the mandate handing this case back to the trial court judge, Judge Chuck Ken, unless.
Mr. Trump files by Monday, February 12th, a motion to stay the mandate pending a petition for cert, meaning a petition for Supreme Court review. And in that case, the trial court proceedings will remain stayed until the Supreme Court finally disposes of the matter. And so, of course.
No big surprise. Mr. Trump, through his attorneys yesterday, did in fact file a motion to stay the mandate while it files its petition for a writ of certiorari. But it also said, and you know what? You shouldn't do any of this rush, rush stuff, right? We should be filing our petition in the normal course. So you should stay it for us to file in the normal course. And you should actually stay it for us first to go seek en banc review in the D.C. Circuit because it makes so much
since Supreme Court to let this issue sort of develop and percolate through en banc review. So before we even file. Yeah, that seems like a great idea. Yeah. That's a great idea. Let's take another like, you know, six months to do that, right? I think we should sleep on it for a little bit like Rumpelstiltskin. Let's just sleep on it for a couple of years. Yes, that's right. And let it gestate. You know, I'm not sure how I feel about this idea of presidents
killing opponents. It's a tough one. These are tough legal questions. And of course, obviously, we're being really facetious. But still, I thought it was kind of chutzpah to say, not only should you give us time to file our cert petition, but you should let us first go seek on Bonk and state everything while we do that. So, I mean, if they got their way. Yep.
They're talking about buying 45 days to seek en banc, waiting for the D.C. Circuit to do what it does, and then buying more time to seek cert. I don't think the court's going to go for that. So en banc is that's the request to have the D.C. Circuit hear the case for all of the active judges participating because the normal course is just to have a three judge panel. So en banc means everybody, everybody together. Yep.
And they do that when it's a really big, important issue. And it's pretty infrequent, right? Yes. Very, very. Maybe only one or two a year. Sometimes none are granted in a year. And here we had a three judge panel that was unanimous, as we discussed last week. And we also discussed that we thought it was likely that the three judges shared either their opinion or the conclusions, perhaps with the rest of the court before.
before they issued their opinion because their opinion did say, we're not going to stay this for a petition for en banc. Anyway, I don't think that's going to go anywhere. And the Supreme Court has already asked for Jack Smith to respond to this motion of stay for a stay by February 20th, which is one week from today. I think, and I think you think, he'll do so much faster, maybe even today, because he may file any moment now. Exactly. I think Michael Dreeben is, to use the phrase that I've been using constantly lately, is
I think he's snappadoodle. Snappadoodling. Yep. I think he is going to go really, really fast. I mean, I wouldn't be surprised if there was a filing today. Yeah, same. By Jack Smith.
frankly, is nothing new in the, you know, this is slightly retooled, but it's really similar. I think the biggest thing that Jack Smith has to respond to is remember that early on, what Jack Smith wanted to do was to bypass the D.C. Circuit and go directly to the Supreme Court. So he just has to address
Now that the D.C. Circuit is ruled, why does he not want Supreme Court review? There's an answer to that, but he does have to sort of deal with that issue. Well, particularly because in Mr. Trump's motion, they quote Jack Smith at length about how he said this issue is so important and needs to be decided by the Supreme Court, you know, very much using that against him. So it will be interesting to see how he navigates that, because I don't expect he'll say, yep, you're right, you need to review it. He
He might, but I expect he'll say, actually, we have a very solid opinion by the D.C. Circuit. So there is this court would be acting to be the final say by denying cert because it'd be saying there is no presidential immunity. We agree with that. So we'll see. One quick thing just to make sure everyone understands that the court has a number of different options. They could just say, we don't want to hear this at all. They could say, no, stay. And we don't want to hear this. They could say, we want to hear it.
and we're going to issue a stay. But they could also do something unusual, which is they could say, we want to hear it, but we're not issuing a stay, meaning that we're going to hear the issue, but the D.C. trial court can go forward. That would be unusual. I think that's the least likely. Yes, I think that's right. But I don't think they would be hearing the case, though, to reverse the D.C. circuit. And they're in an unusual situation where if they
with the substance of the D.C. case, so there's the outcome, even if they would change the reasoning slightly, by taking the case, if they don't hear it really quickly, they kind of de facto are ruling for Donald Trump in this particular case. Because of the delay, yeah. Exactly. So they'd be saying, oh, I think presidents aren't above the law, but by the way, subsalencio, de facto, whatever, throw in whatever Latin or whatever gobbledygook I'm saying, but
But, you know, I am actually resulting in his not having a trial. Yeah. So that's why I think they're in a bit of a bind on that issue. And I personally, I think the better course here is to just if they agree with the substance of the D.C. decision is to say we're not hearing this. It's so frivolous. That's right. And they can also one or more could issue little opinions to go with it, saying this doesn't necessarily mean we agree with everything the circuit said. Right. But we agree with the conclusion. Right.
- Any time that there is cert denied or even a stay denied, they can just say in an order, stays denied or certs denied, and that is by far the most common thing. Just an order that says denied.
And there's a long list of orders every time they make decisions about whether to take cases. And they'll be like, orders denied. And there's a list of all these cases where they're denied. But sometimes if a justice wants to say something about that, they can write an opinion explaining why they agree that cert should be denied and maybe give a few reasons. They could also dissent and say, I would have granted cert in this case for these reasons.
And that does happen sometimes, particularly in cases that maybe are controversial or high profile, et cetera. But before we move on, there is one substantive thing. I mean, we're not breaking down this whole motion, but there's one substantive thing that I want to call attention to because reading this last night, it's 40 pages long. There was one theme that I think that the
Trump attorneys were just really trying to, you know, beat the court over its head, beat the justices of the court over their head with over and over and over again, which was this the sky is falling, the sky is falling argument.
If a president does not have immunity from criminal prosecution, every president from here forward will get prosecuted after he leaves office. And let me just read you a little bit that's in the introduction. And he says, if the prosecution of a president is upheld, such prosecutions will recur and become increasingly calming, ushering in destructive cycles of violence.
Recrimination. The president's political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future hostile administration for acts that do not warrant any such prosecution.
And get this, this threat will hang like a millstone around every future president's neck, distorting presidential decision-making, undermining the president's independence, and clouding the president's ability to deal fearlessly and impartially with the duties of his office. Without immunity from criminal prosecution, the presidency as we know it will cease to exist.
Wow, this is apocalyptic. Yeah. So, Mary, this would be my response if I were Jack Smith would be, but see all of American history. Yes, history. And the reason we talked about this when we did our episode on Harry Truman, one of my faves. That's right. Which is that's deliberately ambiguous, both about the episode and the presidency. But.
That's not true. That's just not what's happened. That's right. There has not been this kind of immunity. Everyone knows that that has not been the state of the law and this hasn't happened. To me, this is both projection as to this idea that you can threaten people with this is exactly what he was doing in the Brad Raffensperger taped phone call, which is where he says, you understand that you could be facing criminal liability.
I mean, which, of course, he couldn't. Yeah, he's the one who uses these threats, right? Yes. Nobody else does that. This is what he did with the so-called perfect call to President Zelensky, where it basically was a threat. If you don't do this, your much needed funding will be cut off. So the idea that this I mean, it was both historically wrong, legally wrong, and
And was such a sign of how he views the Justice Department. It just isn't the case. And plus, there's a check and balance on that, which is there's juries have to decide things beyond a reasonable doubt. So, I mean, it's not going to go anywhere. It was written for a different court. But in any event, I really glad you brought that out. The motion is replete with it. I gave you one excerpt. I mean, it comes up over and over and over again.
Over and over. And by the way, one of the reasons they have to take this case is it ends with this, which is if you don't take this case, you're going to allow the government to interfere with, you know, the voters' First Amendment right to vote for me. Yes, that's right. That's exactly what he says. That's a really strong argument there. Not. Yes, that's right. OK, Mary, should we take our break and turn to Mar-a-Lago, which is super complicated? Yes, let's do it.
MSNBC's Lawrence O'Donnell. When I was working in the Senate, I didn't realize that it's the perfect training for the job that I have now. Covering government, covering politics, the complexity of it all. Mastering the detail is crucial to being able to present anything.
that happens in Senate buildings or any other news centers that we have to focus on every day. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC. So, Mary, there's a lot going on in Mar-a-Lago, and I know we want to talk about a couple things. There's a motion for reconsideration.
that was filed by Jack Smith, and we want to talk about that. And then there's been a lot of activity in the last week or so on SEPA Section 4, where there's been a lot of ex parte and under seal proceedings. That's right. And we want to talk about that as well. But in addition, which we're not going to really talk about, but there are a lot of things pending before her. There's a motion for...
discovery that we talked a bit about and that's now been opposed. There's also additional claims being made about selective prosecution and vindictive prosecution that Donald Trump has tried to sort of shoehorn into that. There's also a motion by Donald Trump and the other two defendants
to essentially put everything off again. Pause everything. Exactly. So that's also pending. So there's a lot before her, but we wanted to, rather than parse everything out, we wanted to really talk about the two things that have gotten a lot of attention in the last week.
at least we've been spending a lot of time. And also it's been in the news, but not always correctly reported. Yeah, it's complicated. Exactly. So, okay, this is like dealer's choice, Mary, which do you want to go to first? Just because you said reconsideration first, let's start there. And people are probably thinking reconsideration of what? And this does relate to the motion to compel discovery that you mentioned.
And what happened was when Donald Trump and his team filed this motion to compel discovery, they attached, they put a bunch of attachments on there that were redacted for now because of sensitive information. But the court then asked for the government to sort of respond to whether these should stay redacted.
And the government said, you know, yes, absolutely. We have a protected order. This is protecting the names of witnesses, the substance of things that they would say, stuff we weren't even obligated to give Mr. Trump at this time, ongoing investigations. And the court then ruled that actually,
The government hadn't provided a compelling enough reason for keeping these names and other things redacted. And she was going to order them to actually be made public. She did order. Yes, she did order. She did order. And so what Jack Smith did is he came in and said, whoa, whoa, whoa, whoa, whoa. Please reconsider this because you made clear error. And to do this would be a manifest injustice.
And what he says in that motion for reconsideration is the discovery material, if publicly docketed in unredacted form as the court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment.
as has already happened to witnesses, law enforcement agents, judicial officers and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved. So they're saying waving a flag here, this is dangerous. Then they said your clear error is you applied a legal standard, this compelling interest that doesn't apply to discovery motions at all. The standard is simply good cause.
We've given you good cause, and it would be a manifest injustice required that for all the reasons we just said. We're talking about witnesses potentially being put at risk and investigations being compromised.
One thing that has gotten misreported is this is information that the defense has. Oh, yes, they have it.
That's dangerous. Are you freaking joking? Yep. We haven't seen what happened to Ruby Freeman and Shea Moss. We haven't seen what's happened, the death threats to E. Jean Carroll. We haven't, I mean, the idea of having these names out. And, you know, I have to say, I have litigated this and also researched this in connection with the reasons for discovery rules in the sort of like when you turn over witness statements.
If you look at the history of those rules, the reason that the rules have the government being able to turn this over very, very late in the day. At trial. At trial. Exactly. I mean, the technical rules, which the government usually doesn't adhere to, but occasionally they will. It's more generous. It's more generous, right. It's very, very generous. You really only have to turn over the witness's statements.
after they have testified on direct examination. And one of the reasons is because they're concerned about obstruction of justice. And they're trying to do, these rules are created to be solicitous to getting the truth out and having witnesses come forward.
If there is any case where this is true, it's this one. And by the way, it doesn't require the court to say that the obstruction or the violence would come from the defendants or it would be instigated by them. It just has to be that it would be likely to happen. And that's sort of the presumption in the rules. Here, of course, there is
You could make that inference. But there's ample reason here. And in fact, the government, among the evidence, it then kind of went through in its motion for reconsideration, like examples of here's the kind of information, you know, this witness is a former government employee, this witness is a former Trump organization employee, etc. But it also had an attachment under seal and ex parte that's about a potential government witness who already has received
social media death threats for which there is an open criminal investigation. And it said, we want to provide this to the court ex parte. Again, remember, that means only to you, court, not even to the defendants and under seal, meaning the public can't see it.
So what Judge Cannon did with both of these motions in terms of the motion to reconsider, she gave Mr. Trump's team until February 23rd to file a response. Frankly, I suspect she will reconsider. I mean, he has shown her she applied the wrong law. He's been much more explicit now in what the danger would be. So I would be pretty shocked if she didn't.
reconsider, at least to a certain extent. She also granted the motion of Jack Smith to file this attachment about this witness who's already suffered these threats for which there's an open investigation to file it under seal, meaning not open to the public, but denied the aspect of that by which he wanted it to be ex parte, shown to the court only, and said, no, provide it to the defendants.
And they had to do that by, I think, the 11th, which was the weekend. I saw no appeal of that or motion to reconsider that. So I suspect they have done that, which means that the defendants can see that information about that particular potential government witness. One of the other things that Jack Smith argued was that some of the names and the statements are from people who...
who may well not be witnesses at trial. And so you are putting their names out there in this information gratuitously. - Right. - So I have to say, I agree. I think this would be a really foolish motion for Judge Cannon to sort of die on this hill.
I agree. This is the kind of thing that if she gets it wrong, I mean, as a former prosecutor, this is the kind of thing that I would take up. You have to. Because of your obligation to the safety of witnesses and the integrity of an investigation. I mean, this would not be the kind of thing you could say, you know what, I'm not sure we really need it or I'm not sure it's really worth it. This is the kind of thing that goes to why you took the job. That's right.
So anyway, Mary, let's talk about the SEPA Section 4. Both you and I have been in this situation in various iterations of our lives. So, you know, I think a lot of people don't understand that a lot of what's happened is relatively normal, you know, within a case that involves classified information. There's one aspect that's unusual. And we should just say SEPA is the Classified Information Procedures Act, which we've said many times before, but it's been at least like
A month, probably. You know what? It's for people who are just auditing the first year of our course. Our class. Yeah, exactly. But for the people who, like, really took the first semester, they have that, you know, way under the belt. They're like going, please, let's, you know, I know what that is. Don't waste my time telling me what it is. Yes, exactly. Okay. So SEPA, Section 4. Last week, just so people know what technically has happened. Just.
Jack Smith was able to speak alone, privately, so that's ex parte and under seal to Judge Cannon to talk about what material he thinks should either be redacted, what material could be provided by summaries, or what material shouldn't be produced at all. And by material, we're talking about discovery under the normal rules of criminal procedure.
which normally you have to provide to the defendant any information that would be relevant to his defense. When we're talking about classified information, it needs to be relevant and helpful. So it could be relevant, but if there's no possible way it could ever help you, you don't have to turn it over because it's classified, right? So what he's saying to the court
Back to your point is here's all the things we think we have an obligation to turn over because they're relevant and helpful. But here are things that are so sensitive we'd like to make a substitution or a redaction or a summary or something a little different than giving over the raw material. It could be, for instance, we're going to turn over this document. But you know what? We're proposing to redact these names or this identifying information.
or this paragraph is nothing to do with this case. Right. Or use country A instead of naming the country, right? Exactly. So there's a variety of different things that could be presented to her. Then Judge Cannon heard just from Trump's counsel alone, without the government there, also under Seale. Again, we're speculating as to what was said, but the import of why they're there is to talk about what are their defenses,
And that's right for the government not to hear all of that at this point, because as a defense lawyer, one of the only things you really have is surprise. And so you don't have to give that over now. And
And so they can say, Judge, these are our defenses. And this is why, obviously, we don't know what the classified information is they're talking about. But this is why we want you to look for these kinds of things, because this is why it would be relevant to us. Relevant and helpful, right? Relevant and helpful. So look at what would be relevant and helpful. Yeah. And they, of course, wanted to be as expansive as possible, because part of what they might be doing is not just sticking to that, but trying to figure out, essentially, can they use gray mail?
In other words, can they try and get information that's classified that the government really, really, really doesn't want to turn over and see if the court's going to agree with them so that they can sort of say, hmm, okay, government, you've got a conundrum because to go forward with this case, the judge is now saying you have to turn over stuff that you really, really don't want to because you want to protect national security. That, by the way, is the reason for the SEPA statute is to avoid gray mail. That's right. And then the other final thing is that
The court said that she is going to hear from the lawyers for Nauta and Oliveira, just their lawyers, not those two defendants. And she's going to hear them with the government. And I think that's to give them an opportunity to be heard as to essentially the same kind of thing. What are their defenses? How would things be relevant? So that's sort of the state of play. Other than the government has one more opportunity to speak ex parte to defendants.
the court to respond to, I assume it's going to be questions that the court has with respect to particular documents. So the part of this that's not unheard of but is unusual is the idea of giving the defense an opportunity to speak privately and alone to the court. I've seen that happen. It happens. It's just not that common. Exactly. But just to be fair, because I know I've been very, very critical of Judge Cannon in the past,
We don't know what the substance is of what she's doing, but the procedure that is, well, a piece of this is uncommon. There is nothing about the procedure that's giving me any pause. Agree. In fact, it makes some sense if a judge is going to rule on what you're entitled to, to have an idea about what the defenses are so that she can apply this relevant and helpful standard. So, you know, we'll see what happens. It could be later on.
It causes problems. But again, the government can take up on appeal some SIPA rulings. So, OK, time to take a break and then we'll come back with what's on our radar. Sounds great. MSNBC's Lawrence O'Donnell. When I was working in the Senate, I didn't realize that it's the perfect training for the job that I have now. Covering government, covering politics, the complexity of it all. Mastering the detail is crucial to being able to present anything correctly.
that happens in Senate buildings or any of the other news centers that we have to focus on every day. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC. Welcome back. So as you previewed at the top, Andrew, there's a bunch of stuff going on this week, really in just two days. So let's start with Georgia. So.
So folks may recall we talked briefly about the fact that one of the defendants in Fannie Willis's RICO case involving January 6th named Michael Roman had filed a motion to disqualify her based on allegations that she was in an improper relationship with the special counsel she had appointed, Nathan Wade, that
relationship caused a conflict of interest because they alleged in this motion that she and Mr. Wade had a personal relationship that predated her appointing him special counsel. That appointment comes with payment for his fees and that she was benefiting financially from the money essentially that the state is paying Mr. Wade. And then Mr. Wade is using it, at least according to the allegations, to take her on fancy trips to places like Aruba and Napa Valley and things like this.
She came in last week. I should say originally other defendants didn't join that. But then she gave some remarks at a church a week or two ago where she tried to defend herself. And after that, Mr. Trump joined the motion arguing that those remarks were such that she needed to be disqualified. Other defendants in the case, not all, but others joined this motion. The judge said, look, I'm going to set a hearing for February 15th.
And he set a date for her to file her response, which happened last week. And I think we maybe talked about it briefly. She denied that there was any improper relationship that predated her appointment of special counsel. She talked at length, and I think you brought this up last week, about how qualified Mr. Wade was. And then Mr. Wade, and this is what's kind of important for this week, filed an affidavit, which means a statement under oath,
where he said, we had a professional but not a personal relationship before she appointed me. That developed after my appointment. And yes, we have taken trips together, but sometimes I pay, sometimes she pays. We're both financially independent professionals.
And there's no conflict here. Mr. Roman's attorney has now come to the court saying, I have a witness, a former law partner of Mr. Wade, who will actually give testimony that contradicts that. We'll say that, in fact, they did have a relationship before she appointed him special counsel. They even cohabitated together at various points, etc., etc.,
So this is, I know, people are like, this is starting to sound like a novel or something and not something we want to hear about in an important, significant criminal case against the president and others for trying to overturn the votes of Georgia. But this is where we are. And the court denied Fannie Willis's request to sort of not have the hearing Thursday. He said, no, we're going to have this hearing. So there's going to be both a factual issue and there's going to be legal issues about whether a personal relationship
is even relevant to the issue of whether she can stay on the case or not. Whether it creates a conflict. And even if there is a conflict, is it sufficient? And whether an appearance of a conflict would be enough to knock a prosecutor off? I have to say, you know, I was not a Georgia state prosecutor, but as a federal prosecutor, this whole thing seems kind of what's the technical legal term? Bananas. Yes. As a legal matter. I'm not saying there isn't potentially, but depending what the facts are and there's
disputed facts. There could be ethics issues. But the legal issue of knocking a prosecutor off just seems, at least in the federal law, would be very far-fetched. And the little I've learned about the Georgia law is it seems kind of wrong as a matter of Georgia law as well. There's also this issue about the finances and whether it was, as Ms. Willis and Mr. Wade say, whether it was sort of roughly split and why that would even matter. And
And that's what the hearing is going to be about. And I think there seems to be a sort of contretemps, which may be a real mountain and a molehill about the word cohabitating. Yes. I mean, and sort of what that means. And it's not totally clear to me that Mr. Roman's representations about his witness were really in any way directly refuting. But that's what a hearing would get at. I'm not sure I can say I think that the hearing is legally necessary.
But at the very least, the judge is going to hear the facts so that it'll be all out there. And so that is happening this week. That's right. Thursday. So the other thing that's happening this week is, and so I'm going to do this sort of smooth transition that you did, which is that there are two things, you're right, in New York. So judging Goran, I remember the big thing we're waiting for is what's the number that he is finding should be disgorged.
The state is asking for over $300 million. And the second part is whether there'll be some barring of Mr. Trump and his children from doing business in the state of New York. Liability with respect to the first cause of action, remember, has already been found. So there will be a decision with respect to other causes of action. But in terms of big picture,
It's really about what's the amount of disgorgement and is he going to find that he's barred from working in New York? And then the second thing that's happening, which is, I think, kind of big because it relates to the first topic that we talked about, which is there's a New York criminal case against Donald Trump. I actually think want to start not saying hi.
hush money, because I feel like that's sort of putting the thumb on the scale about how to think about it. It's an election interference case. That's what it is. That is how Alvin Brad keeps on talking about it.
And it's true. He's not just putting a label on it. I mean, when you get to the heart of the allegations is that, you know, through payments to Stormy Daniels and working with others, there was an attempt to keep information from the voters that voters might have thought was relevant in 2016. So the first time Mr. Trump ran for president. You know, and the way I think about it, just a quick analogy, is that's what the first impeachment was about. The call to Zelensky wasn't a
Yes, it is true that he was saying you need to open an investigation on the Bidens or else I'm not going to be giving you the financial assistance that's congressionally mandated. But that's the means to do what? To basically be able to tell in America, look, there's a criminal investigation against my opponents.
which is false, right? I mean, without telling the public that, oh, by the way, I bought it. Like, the only reason that opened. So to me, it's very, very similar when you think about sort of what's going on in both these cases. But anyway, Judge Morshan, who is overseeing that case as the party's coming in, and the real issue there is there is a trial currently scheduled for the end of March. March 25th. And what's very much going to be at issue is how long would that trial take
And is it possible to sort of squeeze it in before the federal D.C. case? Now, of course, they don't know when that's going to be because they don't know what the Supreme Court's going to do. So this may be something where they kick the can shortly down the road. But Judge Morshan says, I need you to be ready.
to go forward then. That's what I suspect, yes. Because if the Supreme Court were to deny a stay and deny cert, we could potentially be back at trial before Judge Chutkan in D.C. by sometime in late May.
And or maybe even mid-May, I have to do the math here. So, you know, Judge Merchan might think if we started on March 25th, that might get a little bit too tight. And let's see what the likelihood of that happening is. But you better be ready to go. Because remember, Judge Chutkan has said that she had spoken to Judge Merchan. And so they are dealing with their calendars. And that's appropriate, by the way. There's nothing wrong with judges talking to each other when they have conflicting calendars.
That happens, I won't say all the time because it doesn't happen all that often. People don't have cases in multiple courts all the time, criminal cases. Right, but there's nothing wrong with that. So Judge Mershon is going to be very aware of not messing that up. And Alvin Bragg has publicly said that he is going to defer.
because he knows that the federal case is one that could go away depending on what happens with the federal election, whereas his case won't. So I think it's worth keeping an eye on and hearing what Judge Marchand says about that trial date and what he's going to signal to the parties about whether they're going to go forward. I mean, it is conceivable that he just says we're going forward. It is. Yeah. I
I should also make sure to clarify when I said potentially may if the court were to deny a stay. Some people might think, well, if they deny the stay, why doesn't the case start immediately in D.C.? And that's because Judge Chutkin has basically said during this period, while my district court level trial case has been stayed for the appeals.
She hasn't been, you know, ruling on motions. She even recently clarified, don't file motions without my permission. There hasn't been anything going on. So she has told the parties, if and when I get this case back with the authority to go forward, you will get to make up that time that you've missed. So that's why even if they denied it tomorrow, we wouldn't be starting trial on March 4th as originally scheduled. Right. I actually think she probably will do one to one. In other words, for every day of the state. I do too.
I don't think that's technically necessary, but I suspect she will do that having made her decision about how much time Donald Trump and his team should get to prepare for that trial. And so that does sort of bring us to sort of the end of May, if there was a decision. Earliest, yeah. Exactly. But it could be, you know, beginning of June. So I think the real issue for going back to the New York case is very much going to be how
how long will that trial take? And then you do need to then leave a gap. You can't just tell somebody you finished the trial on Friday, so Monday you're starting. You know, we had the same issue in the Paul Manafort case, which he elected to have two trials. We had the Virginia case. But he had...
after the jury came back, there was about, I think it's about three or four weeks before the actual start of the next trial. And it's about due process. It's about making sure that people have time to prepare their defense so that they can't say, I didn't get a fair opportunity to defend myself. And not just to say it, they can actually have that opportunity. Yeah, they have it. Yes, exactly. Right. Okay. Mary,
Mary, I think we've caught people up a lot on sort of what's in our heads. We covered a lot of ground. And downloaded this all. And so, you know, I think one thing that's great is like, you know, next week we'll be reporting back to you on sort of what's happened, what our take is on all of this. But, you know, big thing Mary and I are keeping our eye on, obviously, is what's the Supreme Court going to do. And I fully expect that we're going to hear from Jack Smith imminently, but all eyes on the Supreme Court. Absolutely. We'll see you next week.
If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.
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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.