Hello and welcome back to another episode of Prosecuting Donald Trump. The first of our 2024 episodes. It's January 2nd and I'm here with Mary McCord. And I have a word for that, which is thank goodness because I've had Mary McCord withdrawal symptoms. Yep.
for a week. I know. I've had Andrew Westman withdrawal. Happy New Year. Happy New Year, Andrew. It is going to be some year. Yeah. That was the first week since our first episode that we didn't record. And it felt really weird. We've recorded from all over the world on our travels, and it felt really weird to go a whole week. I know. So we're back. It's so nice to see you. So Mary, there is so much to talk about because...
It's really outrageous that litigation was not on hold to take into account our vacation schedules. So I think we previewed that, which is that Jack Smith's team and Donald Trump's teams were kept very busy by the D.C. Circuit and the Supreme Court. So we're going to go over that. Mary?
Mary, there was a lot of filings in connection with the sort of presidential immunity double jeopardy issues that we talked about last year, i.e. two weeks ago. Right. Last year. Yeah. Today we will talk. We will kind of catch everyone up on timing issues. The Supreme Court denied cert before judgment in the immunity appeal. We're now we've got the briefing almost finished. It will be finished today before the D.C. Circuit Court of Appeals on the immunity issue. We'll talk about that.
Meanwhile, over the break, we had following the Colorado decision to keep Trump off the ballot there. There was a main secretary of state decision. There's also been decisions keeping him on the ballot in other states. So we'll talk about all of that. But I thought, Andrew, maybe before we jump in, because we're going to do some
Good nerdy stuff. Maybe we could give some just top line thoughts that we've had about what we see coming for 2024 in this Trump litigation, but also sort of for our democracy. It's a it's a really pivotal year. It really is my thought over 2020.
the break when you have a chance to sort of regroup a little bit is obviously thinking about the fact that 2024 could just be a defining moment for our country. It's hard to imagine, except for the Civil War, a more important time for our country and its future. To make it maybe a little bit more granular, what you and I do and what we did when we were the government, the litigation, the
actions of prosecutors. That was obviously very much our world, and that's what we sort of focused on. And we're seeing this enormous confluence of the political world and the
legal, judicial, prosecutorial world sort of colliding and overlapping, but they're not exactly the same. But we're really going to be looking at how these legal developments may, and I stress may, have political consequences, but they also may not because people may not care. And
It just reminded me so much of when I was on the Mueller investigation. I think people were so focused on what the legal piece was without thinking enough about the political piece. But here, obviously, the legal piece has the ability to and has seen the indictment
of a former president. Remember, we couldn't, when we were in the Mueller team, we couldn't indict a current president. But it's this collision of two worlds that I think is going to be at the fore. And frankly, it's going to be so much of what we are talking about. But there is this other possibility
piece, the sort of political piece that's sort of looming behind all of this? Yeah, there's no question. And it's interesting because we've seen some important new polling suggesting that a conviction of Donald Trump before the
the election actually could impact the votes of a number of Republicans. I've seen that polling out and I've seen it written about in the New York Times and elsewhere. But we've also seen what seems to be a Trump strategy of trying to lock in all of the
primary delegates early enough and also at the same time delay the criminal cases so that he's locked in as the candidate. So we have this real confluence of the court cases and also the politics of being in an election.
And just one quick mention, and I know we don't have time to get into this, but this is also going to be another blockbuster year on other issues in the Supreme Court. Not only we might have the immunity issue there, we might have the 14th Amendment Section 3 issue there.
We know we're going to have the issue there about whether obstructing a official proceeding applies to the rioters in January 6th, obstruction of the January 6th meeting of two houses of Congress. But we also have huge cases involving rioters.
reproductive health. We have huge cases involving social media and the ability of social media companies to take down extremist content that violates their terms of service. Just a huge, huge year in the Supreme Court. And all of that can have an impact too, I think. As well as the
There are cases coming up about the end of essentially the administrative state, which is sort of a far-right attack on government and being able to delegate decisions. So we're going to focus on Supreme Court taking center stage in terms of our world with respect to Donald Trump. But it's really important to know the Supreme Court is center stage on so many core issues. But with that...
Mary, why don't we talk the most about this presidential immunity double jeopardy issue? I always, by the way, flag both because Donald Trump has made two issues that are on appeal. One is that he has presidential immunity as a former president. And the second is that the double jeopardy clause, and there's little nuances to it, applies because of his
not being convicted, being acquitted in his second impeachment trial in the Senate. And so those issues are now up on appeal. And Mary, as you said, when we sort of left off, that was something where Jack Smith sought to have that go directly to the Supreme Court to try and move things along. And the Supreme Court said no.
It didn't say they're never going to hear it. It just said that they wouldn't jump over the D.C. Circuit. And so we have the D.C. Circuit, which, by the way, I think we talked about this, which is the D.C. Circuit was acting so quickly that I think it put a lot of pressure on the Supreme Court to say, OK, we're going to give you a chance to be heard because.
The briefing is going to be finalized, as you said, today. And the argument is one week from today, it's in front of three longtime judges who will hear this. So, Mary, there's a lot of briefs that have been filed on this. There's Donald Trump's brief. We've also seen Jack Smith's brief. We haven't seen Donald Trump's reply brief. That's coming in today. But then there are, I think, several
amicus that are really interesting. And now you and I have spent a lot of time reading all of this. Right. And before we jump into the substance of all these briefs, and I think these are so important, let's just make sure all listeners are understanding the impact on the timing of the trial, the March 4th trial date, because of these appeals.
As you indicated, what the Supreme Court denied was something called cert before judgment. We talked in previous episodes about cert, which is short for certiorari, is the acceptance of a case by the Supreme Court. And what Jack Smith had sought was, like you said, to leapfrog the D.C. Circuit and go straight to the Supreme Court. The Supreme Court said no.
No to that, at least for now. Doesn't mean they'll never take it up, but they said we're denying that and there was no opinion. So that doesn't mean anything. It doesn't really signal how many justices said they wanted to take it, how many said they didn't. All that means is we know that at least four said no. They didn't have enough to take it up before the D.C. Circuit rules happened.
And as you said, I think in some ways that's because the D.C. Circuit moved so fast to schedule the briefing and argument that the Supreme Court probably thought, let's see what they could do. They might be able to avoid ever taking this if they end up just basically agreeing with what the D.C. Circuit did. I just want to make sure everyone understands that what Mary's saying is it is possible that the D.C. Circuit will issue its decision. I think by all accounts, it will hear this
a week from today, it could rule very, very quickly. I mean, it obviously has the briefs. It has clearly been working over the last few weeks on its preliminary views subject to the oral argument. So we could issue a decision very early.
It is possible that the Supreme Court will take it. I think you and I both think it's probably likely they'll take it. But I think people should remember the Supreme Court could just say, you know what? We're going to leave it as is. They don't have to take cert. Most cases, cert is not granted. And they could just leave it. And I think both of us think that there's no way in God's green earth, my phrase, that the D.C.'s circuit
is going to agree that there is immunity here or double jeopardy and we'll get into the substance. But just on the timing issue, people shouldn't assume that the Supreme Court delay is definitely going to happen. It could happen, but it's not a definite. That's right. That's right. And so what we know from the denial of cert before judgment is that
It takes four justices to vote for cert. That means they didn't get four. But that's all we know about the vote. As far as timing is concerned, once the D.C. Circuit rules, there's 45 days for the loser to seek rehearing en banc or even before the panel. Rehearing en banc means rehearing before all of the active judges on the D.C. Circuit. Normally, cases are heard before a panel of three.
And you can seek a review like, you got it wrong. This is so important. The whole court should take it. And then even after that, there's another 60 days to seek cert in the Supreme Court. So if you add up all that, that can be a very long period of time. But it doesn't necessarily have to be that because the D.C. court could say, the circuit could say, we're going to accelerate that time frame if you want to seek cert.
rehearing en banc, you have to do it by X date. And you could also see Jack Smith moving for them to move quicker. So in his brief, he didn't make a motion yet. I could imagine he might, but he did ask at the end of his brief, he says, we are requesting the court to issue its mandate within five days of its decision. What does that mean? The mandate is the document that allows the district court to
to go forward. It's like sending it back to the district court saying, here's the mandate, go ahead and do what we told you to do. Once you've got the mandate, you've got the ball. This is saying basically in five days, you should go back and then Judge Chuck can go forward. And that's his way, Judge Smith's way of sort of shortening this timeframe. So he's obviously very aware of trying to keep that trial...
And if the D.C. Circuit did that, that would mean, assuming Trump is the loser on this, that would mean he would have to seek rehearing within five days. Otherwise, it would be back in the district court. Exactly. Including he would have to raise this issue of like, I want the stay to continue. I want a mandate not to issue. I mean, all of this will become heavily litigated before the circuit. So I anticipate that there will be a lot of skirmishing about that timing afterwards.
Mary, I don't know about you, but I think given that the D.C. circuit has moved so quickly in scheduling this, it's hard to see that they're now going to suddenly give a lengthy amount of time after the decision to let Donald Trump sort of mull over what he wants to do, especially because here everything's been briefed.
there's not a lot of new things to talk about. So with that, Mary, do you want to maybe give me your views of what you think are the key issues people should think about in terms of the immunity? Yeah. And so the briefing from Donald Trump and Jack Smith, I think is very similar to the briefing that we saw before Judge Chuck in the district court. I would say the quality, I do think that the Jack Smith brief was really, really exceptional. And
As we've discussed before, they brought on another attorney, Michael Dreeben, with a very, very long history at the Department of Justice, including over 100 arguments in the Supreme Court. He's an exceptional briefer and an exceptional oral advocate as well. And it's a very, very solid, solid brief. But the arguments are generally following what was argued before the district court. So Trump is arguing, he's trying to avoid this idea of
absolute immunity for everything he could do and say, I'm just seeking absolute immunity for everything within the outer perimeter. We've talked about this before, the outer perimeter of my official acts and everything that is alleged in this indictment is an official act. He recharacterizes everything to really just be him speaking, right? I have a right to speak to state legislators about
what I think might be election interference in their office. I have a right, of course, as the president to speak to my own Department of Justice about what I perceive to be election fraud in the election, right? I had a right to speak to my own vice president about what I perceived he could do with respect to the electoral college ballots. So he's sort of changing everything into all I was doing was speaking in my role as president.
Jack Smith, of course, has come in strongly in defense of Judge Chutkin's opinion that there just is no presidential immunity from criminal prosecution. It's not in the text of the Constitution. It's not supported by history. It's not supported by the structure of our federal Republican system, which includes separation of powers, very, very importantly there.
And, you know, this is not unlike a quote that we read into our podcast back at the briefing before Judge Chutkan, but I think it's so powerful it's worth repeating. Jack Smith argues that a president who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardize both the presidency itself and the
and the very foundations of our democratic system of governments. He goes on to give some examples, right? The approach of Donald Trump's argument that he's immune from prosecution as long as it takes a form, as I indicated, like correspondence with a state official or a meeting with members of the executive branch. He says that approach would grant immunity from criminal prosecution to a president who accepts a bribe in exchange for directing a lucrative government contract to the payer.
A president who instructs the FBI director to plant incriminating evidence on a political enemy? A president who orders the National Guard to murder his most prominent critics? Or a president who sells nuclear secrets to a foreign adversary? Because in each of these scenarios, the president could assert that he was simply executing the laws or communicating with the Department of Justice or discharging his powers as commander-in-chief or engaging in foreign diplomacy.
So, I mean, these kind of examples, I think, really do sort of bring home the breadth of what Donald Trump is arguing in terms of how immunity should work for a former president. And I think it's a powerful brief. And of course, it's also powerful as it goes into history and text and all that. So it's so funny, Mary, because.
You know what, in our time off, we're still in violent agreement in the way we see things because I think like a lot of people on pages 28 and 29 of Jack Smith's brief, I also underlined exactly what you read. And I thought it was so skillful to give those examples because what that is saying is you really should not find that there is presidential immunity at all.
in a criminal case. It simply does not apply. And those hypotheticals really stress to the court how difficult it would be to go down the road of what the court has done in the civil context where there is presidential immunity. Because the examples that you read are ones where it says, look, all of that could be described by the president as things that are within his framework
For instance, the concluding example that Michael Dreeben gives in this brief is, "...under the defendant's framework, the nation would have no recourse to deter a president from inciting his supporters during a State of the Union address to kill opposing lawmakers, thereby hamstringing any impeachment proceeding to ensure that he remains in office unlawfully."
And there he cites the D.C. Circuit's own recent decision in the civil context saying that the delivery of a State of the Union address is within the outer perimeter of the presidential functions. Obviously, Jack Smith also makes the backup argument, which is that even if presidential immunity applies in the criminal context, this is not within the outer perimeter. But all of the examples were just so skillfully done to say, you just don't want to open
to open up this can of worms, it is very hard to do line drawing here. And by especially the sort of selling of nuclear secrets to foreigners and then the effort to stay in office through violence are ones that obviously those are hypotheticals, but they resonate with so many people as to what could be done in a Trump administration 2.0 or frankly,
any president could do because you'd be licensing this for any future president. So incredibly powerful brief, I thought. I, too, by the way, really saw the fingerprints of Michael Dreeben. This is a brief that's incredibly well-reasoned, and it can be read by laymen, and it can be read by sophisticated practitioners, by Supreme Court justices. And that's sort of a real Michael Dreeben situation.
skill set of being able to speak plainly to all those different levels and have such common sense. It's really a wonderful read. I would highly recommend it. So Mary, should we talk a little bit about the three amics?
Amici? Is that how you say it? Yeah, right, right. The three amici. Well, I guess it's groups of amici, right, for each. And I think these are really important because as we've talked, I think before, amicus briefs, what that means in Latin is friend of the court. It's another individual with an interest or a group of individuals with an interest who can seek the court's permission to file a brief
in support of one side or the other or neither side and make arguments, including arguments that aren't made in the principal briefs by the parties. And oftentimes this is very useful. It can be useful as a matter of bringing policy consequences to bear, like to explain to the court, if you do this, here's what could happen as a matter of policy. Or it can also bring other legal issues to bear.
And what we've seen in the three filed here are not only new legal issues that I think are important to highlight, but also, at least with respect to two of these briefs, the signers, the amici themselves, I think are very, very important. And so in one of those two, it is former officials who worked in five Republican administrations from Presidents Nixon to George W. Bush.
served as elected Republican officials, are constitutional scholars, and others who support a strong presidency. So generally speaking, though, conservative lawyers who have held high-level positions, including, for example, Judge Michael Ludig, who we've had as a guest on our podcast.
The other, similarly, is a group of 16 former elected officials and government officials and constitutional lawyers who identify themselves as really conservative. People like George Conway, Ty Cobb, who served as special counsel. We were dealing with him in the special counsel Mueller investigation, a very, very esteemed lawyer. And by the way, just note to self-
That aligns very much with the decision we talked about earlier, which is Chief Judge Pryor's decision with respect to Mark Meadows, who is also a luminary in the conservative world, who ruled sort of up one side and down the other against Mark Meadows in a way that's really resonant in the
this case as well. Yeah. And so before we dig into the third brief, which has raised separate issues, these briefs both and the five former administration's officials brief even more so than the other. But these both raise a new issue involving the executive vesting clause and why a president who loses reelection but makes efforts to stay beyond his term is attempting to violate the executive vesting clause. And so the argument here is,
you cannot have immunity for actually violating a provision of the Constitution. And that provision is in Article 2, which is the article of the Constitution, and that
sort of authorizes the presidency and all of the powers of the presidency. Section one, clause one, right? So the very first section, the very first clause of article two says the executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years and together with the vice president chosen for the same term, be elected as follows. The next sentence prescribes for how an election works.
And the point of these scholars is that a president who loses re-election but engages in efforts to usurp the office of the presidency beyond his four-year term would be threatening to violate the executive vesting laws. And they say that's in two ways. First, that president would be threatening to extend vesting.
Right.
And so their point is absolute immunity certainly cannot protect that. But they quote George Washington from his farewell address when he stated it would destroy our constitutional system if, quote, "...cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and usurp for themselves the reins of government."
Pretty powerful stuff and a really separate and independent reason from anything that's been directly argued by Jack Smith. Although he does allude to it when he talks about a president comes to power by winning election, not by subverting the results of the vote. That's in Jack Smith's brief. By the way, that is not the first time that we have seen in the last couple of months the quotation from Trump.
our first president, George Washington, and just how prescient he was about what you have to worry about in connection with the abuse in the presidency. And that's skillfully talked about in terms of why
when you're dealing with lots of people in Congress, that concern for corruption of the entire body is something that is less of a concern than when you're dealing with what can happen with one person. And you see that in the Jack Smith brief. You see it in connection with the Judge Pryor decision. You see it in the amicus brief that you talked about, Mary. And unfortunately, it's because we see it in real life.
that this is what is occurring. And that's why you're seeing so many different people from so many walks of life raising this issue and referring back to our founders who were anticipated precisely the moment we're in. Yes, absolutely. The other thing that I think is so significant about this particular brief is they flag a particular concerning moment
consequence that would result from Trump's assertion of absolute immunity. And that is that under Trump's view, a future president could disregard the criminal restraints against using the military to alter the election results. A president who loses re-election could say, for example—
I don't believe that I really lost. You know, I'm going to call forth the military to seize voting machines, to order a redo of the election, et cetera, et cetera, and could argue this is my authority as commander in chief. These are official acts that I'm empowered to take, and I have absolute immunity from criminal law. Notwithstanding that there are criminal laws that absolutely bar the use of the military for domestic law enforcement purposes. But we know, actually, and the scholars and former
Republican administration officials who filed this brief go back and spend several pages talking about what we've since learned since 2021 about Mike Flynn, who was former President Trump's early national security advisor, and others advising him to do just that, to use the military to seize voting machines. There was actually a memo drawn up.
about using the military here. And what these former officials are saying is under his theory, that stuff could have happened. And you can't possibly be immune from trying to wrongfully use, in violation of criminal laws, the military to keep yourself in power when you have lost an election. So I read...
Liz Cheney's book when it came out and the first few chapters are chilling in her discussion about the concern of what was happening at the Department of Defense and the military. I'm not going to get into all of the details, but it is further support for exactly what you're saying, Mary, because she documents all
all of the concern that she and many others had, including leaders of the Department of Defense, as to what was going on. So this is a very important clarion call. There is another
amicus, which I'm just going to briefly discuss, that is from an organization that basically is focusing on the propriety of the stay. Because right now, everything in the district court is stayed, except for sort of minor things, but all sort of litigation that could help get this case ready for trial is stayed pending the appeal. And that brief discusses a Supreme Court case in a different context that
suggests that the test for a stay is whether there's an explicit provision in the
sort of explicit text in the Constitution that the proponent is relying on that would mean that there would not be a trial. And the examples are, for instance, double jeopardy, which is one of the claims here, or speech and debate clause. And so it's sort of raising the issue of
is it really correct for the court to have granted the stay? Or to accept the case on appeal at all, right? I mean, they go back to the first principles of, you know, normally you don't get to appeal mid-criminal proceeding. You have to wait till the end. We've talked before about interlocutory appeal. Right. And they're saying you shouldn't even have interlocutory appeal unless the immunity you claim has a direct
constitutional or statutory textual explicit basis. And so that's maybe just a quick aside to the double jeopardy claim. We've talked about this before. There are various claims here, but they're so weak. And the D.C. Circuit has said that you don't get a stay if the claim is so frivolous. So we can talk about this a little bit more later. But I do anticipate that the topic that this MEG raises
raises will come up the oral argument as to the propriety of taking the case at this stage as opposed to waiting. I don't think that's going to lead the court to not rule on the merits because I think that they will want to put their imprimatur on
on it. But I do think it's a really interesting, important thing to raise. It's a bit of an open issue because it hasn't come up in the connection with presidential immunity. But Mary, this is one where it's so funny. I have like a million other things to say, but we probably should move on just because there's so many other things that happened. And what's great is that we're going to definitely be talking about this next week because the argument's going to be a week from today. But
Let's take a break. And when we come back, we're going to talk about Colorado, Maine, and the whole issue about whether Trump is actually qualified to serve as president again under the 14th Amendment. So we'll take a short break and come right back.
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So, Mary, the Colorado decision, which we talked about, that found the Colorado Supreme Court said that Donald Trump, under the 14th Amendment, Section 3, is not qualified to be president again. And just as if they had found that he was unqualified.
not 35 years old. He was 20 years old. Or that he was a natural born citizen. There's various things that the Constitution provides. And by the way, there are a number of people who keep on talking about this is anti-democratic. Well, if it's in the Constitution, it's not anti-democratic any more than any
other provision in the Constitution. That is just part of the way our democracy works. And it is not by a majority. That is the whole point of a Constitution. And it takes a sort of supermajority to have it even in the Constitution. And then obviously the Constitution can be changed with a certain number of votes, etc. But in any event, that decision in Colorado is stayed. And the Republican Party has now sought
cert in the Supreme Court of the United States. And so the Colorado Secretary of State has said that basically stays what's going to happen in Colorado up to the time that either the Supreme Court says we don't want to hear this, unlikely, or renders its decision. So for now, the Colorado decision has stayed. But since that time, there have been other states that have gone forward. Maine has followed suit.
After that, we had two additional rulings. We had Michigan that said that essentially we don't have an internal procedure in Michigan to deal with whether Donald Trump is properly on the ballot or not for the primary. So they said, we're not dealing with that issue. So he can be on the ballot for the primary, but it's without prejudice to whether he can be on the ballot for the generals.
They sort of duck the issue. Right. Under Michigan law, and I read this last night, actually, to prepare for this morning, it basically gives the party the ability to say who's going to be on the presidential primary ballot, as well as some other ways to get on the ballot. But what it doesn't do is give the secretary of state in Michigan the ability to say, no, we're keeping you off. And then we had a...
a decision from the main Secretary of State. And I have to say, Mary, I was reading that in preparation for today, and I know she's gotten all this criticism, and I just don't understand the criticism of like, oh, the Secretary of State shouldn't be doing this. I
governs sort of how people are determined to be on the ballot. The main law is that she has to initially make these decisions. So she held a hearing, she gave parties notice, she let them call witnesses and put in evidence.
she heard objections, and then she has to render a decision. Legally, she is obligated to do that. She has to do something, right? Exactly. She can't just say, as she wrote, it's not like, oh, it's hard or new, so I can't decide it. I mean, this is what she does. And just to be clear, the procedure that she followed is she made her decision. Let's assume she had ruled that he was qualified. We wouldn't be able to complain about, oh, how could she do this? I mean, maybe you could
complain about the merits of her decision, but not that her legal ability to do it is something that this state has given to her. And just to be clear, whoever loses has the ability to appeal it to the main courts. And then from there, they can seek review in the Supreme Court of the United States. And she also stayed her decision as well. So she did all
all the right things in terms of process and following the law. So I just read this and was really impressed. And she makes it clear, the appeal rights, too. She talks about it in her decision and then right underneath her signature. Absolutely. Notice of appeal rights. The challenger or candidate may appeal this decision. And here's how you do it, right? So now it does say within five days. So I think that's like in tomorrow or the next day. I have an amusing and a chilling thing.
thing to point out about her decision. Which would you like, the amusing or the chilling? Yeah. And then the question is, is either one of these what I highlighted in my opinion that I was reading yesterday? Yeah. Start with amusing. So as we talked about Maine, this happened after the Colorado decision. But if you remember, Donald Trump
won in the trial court, because even though he lost on all sorts of issues in the trial court, he won on the issue of whether the constitutional provision applied to the office of the president of the United States. So at the trial court, he prevailed, and he obviously lost that issue in the Colorado Supreme Court. Well, in Maine,
Trump's lawyers said that the Colorado decision should be race judicata, meaning that the Colorado decision is binding on the main courts. And the Secretary of State in footnote eight says, so that's somewhat of a puzzling, that's the word she uses, a
puzzling argument. She says not only is there no law for the proposition that some Colorado decision should be binding on a separate and independent sovereign, Maine. She said there's no basis for that. But she points out, she says, well, given that
The Colorado Supreme Court has now ruled against Donald Trump. I'm not sure he really wants to pursue that argument. Be careful what you wish for. Exactly. And so she said, I will assume that Mr. Trump no longer wishes to press it given the subsequent decision of the Colorado Supreme Court.
So I thought that was amusing and it shows a real lack of care in terms of the presentation. There were lots of other things that were in that same vein. There are references, according to the Secretary of State, to various things.
exhibits that didn't actually exist. So you got the sense of some sloppiness. The chilling part was that the court, like the Colorado Supreme Court and trial court, finds that the former president engaged
in insurrection. That's the key verb, engaged insurrection, and goes through an incredibly chilling recounting of the evidence with respect to what was presented to her. And one of the things that I was struck by
which I knew, but when you see it in print over and over again, it's striking, is on page 28, she notes Mr. Trump's, as she puts it, inflammatory rhetoric that Gabriel Sterling, a Republican election official in the state of Georgia, publicly warned President Trump to, quote, stop inspiring people to commit political acts of violence, unquote, or
quote, someone's going to get killed, quote. So that's Gabriel Sterling's Republican elected officials warning to President Trump about what is happening. And the Secretary of State,
notes that Mr. Trump's response to Mr. Sterling was to retweet a video of Mr. Sterling's press conference claiming rigged election and exposed the massive voter fraud in Georgia, unquote, meaning that he was warned and explicitly told what could happen and he doubled down on it. That's just one
But I just found that it's so beyond the pale what we are dealing with, Mary. And it's notable to me that even in the Colorado trial court, there's no one who can...
Right. And you know what else is notable there? Right. You just mentioned that the Colorado Republican Party has petitioned the U.S. Supreme Court to take cert about the Colorado Supreme Court's decision to disqualify Trump from the ballot. But they are not challenging that conclusion. They're challenging three things. First, they're challenging the fact that Trump is not going to take cert.
Whether the presidency is an office or officer to which the 14th Amendment Section 3 applies – we've talked about this in great detail – whether there needs to be implementing legislation in order to actually apply 14th Amendment Section 3 –
And their third issue is whether they as the political party, the Republican political party, had their First Amendment rights to association violated by this decision. So they're not even arguing that.
on their petition for cert that the Supreme Court should be reviewing whether the conclusion of the Colorado Supreme Court about what it means to engage in an insurrection. Which is beyond remarkable. I mean, it's just remarkable. So, Mary, we're going to come back to all of this, but we're going to take another short break and then let's flag for people...
a few things that we're keeping an eye on and that we will address down the road, but we wanted to just flag it for people so that they have it on their radar screens as January progresses. So with that, let's take a short break. Come right back.
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Go beyond the what to understand the why.
Download the app now at msnbc.com slash app. So, Mary, there are a couple filings again related to the D.C. Jack Smith case. Yeah. The two things we wanted to flag are that we now have pending in front of the D.C. Circuit a petition by Donald Trump and opposition by Jack Smith. But the petition is for the full court to rehear the appeal of Judge Chutkin's gag order.
And again, this harkens back to what we talked about early in this episode about an en banc review, meaning the full court reviewing it. Donald Trump is saying that even the D.C. Circuit panel was wrong in affirming Judge Chutkin's gag order and that the full court should take the case. That remains pending. The other thing we had is Jack Smith, even while the stay of Judge Chutkin's case is
is ongoing. We had him filing a motion in a limine to keep out certain evidence at trial, mostly like evidence that would be not really evidence at all. Keep out statements that Mr. Trump or his attorneys might want to make that are really just political statements that aren't actually evidence that's relevant to any issue
that has to be decided that goes to guilt or innocence on any of the criminal charges. We're going to come back in much more detail on that one if and when we get to the point where a trial is back on the schedule. This is part of Jack Smith saying, you know what? I know things are stayed. I don't expect Mr. Trump to respond. I don't expect the judge to rule, but we're going to keep filing the government's preparatory motions to give notice to the court and to Mr. Trump about
how we will be hoping to litigate this if and when it gets back on track. So what I'm hearing, Mary, is, you know what?
2024 is going to be a very, very busy season because there are lots of things. And even with all this time, and I know this is probably a little longer than we had planned, there actually still is a lot more to discuss. So we'll be breaking this down for you and obviously keeping track of everything. Mary, it's so nice to see you. Same. Stay tuned. Yep. Much more to come.
If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod as we did just last week. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.
The show is produced by Vicki Virgolina, Jessica Schrecker, and Ivy Green. Katherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Alicia Conley is the senior producer for this show. 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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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.