Trump's Thanksgiving Threats
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Hi, welcome back to another episode of Prosecuting Donald Trump. It is Monday, November 27th. And Mary, it is not just the first Monday after Thanksgiving, and I hope you had a wonderful Thanksgiving. And you too. I did. It is also, I think we've counted, or

Or someone has counted for us, because as you know, I don't do math in public. It is our 50th episode. It's unbelievable, isn't it? 50 episodes. We started with the first episode just before Manhattan DA Alvin Bragg returned the first criminal indictment against Donald Trump. And four indictments later and multiple civil cases later, but no trials yet. Here we are, November 27th with 50 episodes.

So, Mary, if someone had said to you when you were leaving the Department of Justice that you and I would be chatting away on a podcast as well as on MSNBC,

What would you have said? That's not at all what I was thinking I would be doing in my post-DOJ life, that's for sure. But I'll tell you, as a longtime former prosecutor, and I think you probably feel this way as well, it really is a unique, it's a horribly unfortunate, but unique time to be able to

put to good use, I think, the things that we spent our careers doing and hopefully help to sort of elucidate and educate and inform people who may be listening and who are interested about how does our criminal system work, particularly when we're talking about something as unprecedented as these indictments against a former president. Yeah, you know, so it's interesting that

You had mentioned before we started that we keep on using the term and everyone keeps on using the term unprecedented. But I think today we're going to be using another term because it kind of is a through line of today's episode, but kind of a through line, I think, that we're going to hear for the rest of the show.

The campaign, I think.

or the charade of victimhood. And that's going to kind of inform what we're going to talk about today. So we sort of have two and a half topics because we have two topics we want to talk about, but then we thought it would be useful to flag for people what we're keeping an eye out for so that things don't take people by surprise. They have a sense of what's coming up and what we're thinking of. But the first thing that we're going to talk about is

the gag orders because, if you can believe it, things happened over Thanksgiving. DOJ issued a short filing in the D.C. case. Donald Trump decided that he would celebrate Thanksgiving by...

issuing more tax, which is a really wonderful way of celebrating Thanksgiving and everything it represents. And I have to say, it is my favorite holiday. It's just a get-together of family and also thinking about what you have to be thankful for, which is a whole lot. But again, we'll talk about how Donald Trump

use that and what it means in terms of upcoming rulings. Right, yep. And then we're going to do a little bit of a deeper dive into a motion that is now fully ripe for Judge Chutkan to decide it. There are actually several motions that are fully ripe. The reply briefs from Donald Trump came in just before the holiday. But one of the motions we've mentioned but haven't really discussed

consistent with our theme of supposed or charade of victimhood, is the motion to dismiss the January 6th related case in D.C. based on the grounds of selective prosecution or vindictive prosecution. We're going to talk about what that means, what the standard is, what Donald Trump alleges, and how the government has responded. Because that's one that I think

very much just tracks with this entire facade of victimhood. And I feel more and more like every filing from Trump's lawyers is more and more a channeling of what Trump is out there saying on the campaign trail and in his social media posts every day. Absolutely. And then, as we said, we're going to briefly sort of address things that we're keeping an eye out for so that people can sort of factor that in in terms of

what onslaught to expect next from the court system and Donald Trump. But Mary, why don't we turn to what's happening with connection with the gag orders and Donald Trump's actions on Thanksgiving? Because, you know, the first thing we saw was that in D.C., the federal prosecutors submitted to the Court of Appeals a

a submission that had been made in the New York case. So just to follow people, look, in the New York case, there had been a submission that consisted of a court officer noting for the court the scores and scores of harassing

voicemails, emails, doxing of both the state court judge and the judge's principal law clerk.

And notably talked about—

There hasn't been argument on the gag order in the New York appeal. We understand the judges may be meeting today potentially to discuss it, but it was in that appeal that this filing you were just talking about, Andrew, was made last week.

So there, to sort of amplify the record, the submission was about essentially that there had been a huge increase in attacks in various ways of the judge and the law clerk after one of the defendants, Donald Trump, in that civil case had attacked them. And that they saw a ramp up of that. And so it was trying to correlate the fact that, as you, Mary, have commented,

counseling reminded us the sort of call and response. And let me just share a couple of details from that filing. This is, again, a sworn affirmation of a court officer, captain of the Department of Public Safety in the New York State courts. And he talks about how after some of the first attacks, I guess maybe the first attack on the judge's law clerk by Donald Trump on social media, that was back on October 3rd,

The comments resulted in hundreds of threatening and harassing voicemail messages that have been transcribed into over 275 single-spaced pages. He also talks about the law clerk getting fired.

20 to 30 calls per day to her personal cell phone, 30 to 50 messages per day to both social media and her personal email addresses. And that since the gag order was stayed on November 16th, approximately half of the messages have been anti-Semitic.

And he also goes on to say these are serious and credible and not hypothetical and speculative. You know, we've talked sometimes about what is a true threat that could be actually prosecuted versus what is something that is very intimidating, very harassing, very troublesome to the hearer, but might not actually rise to the level of a true threat. And there are about two pages of single-spaced just examples, just illustrations of the kinds of threats that the judge and his law clerk are receiving and

And they are just awful. They're just absolutely filled with not only threats that the people should be killed and how they might be killed, but also –

horribly anti-Semitic, horribly racist comments. I mean, I'm not going to read any of them because they're so awful. But the conclusion ultimately of this public service officer is that when there is a gag order, there are fewer threats. When there is not, there are more. I mean, that's the bottom line. Right. So, Mary, that filing that you're talking about that was made in New York, I

On Thanksgiving Day, Jack Smith filed that to the Court of Appeals, even though the argument had happened, as we talked about last week, there's a procedure where you can alert the court to new information. And so they did that. And they essentially just said, here's the filing that was made in New York, and it could be relevant to this appeal. And, you know, I had a...

number of thoughts. Because if you remember, when we talked about this last week, one of the questions that the judges focused on in the Court of Appeals in D.C. was sort of violence to Jack Smith, violence and threats to Jack Smith or to the court or to the Jack Smith staff or to the court staff. And they were sort of like saying, how could that really

affect the integrity of the court proceeding. And what that would suggest is that this filing may not be all that relevant to the court of appeals that heard this if they were saying, I'm really more interested in threats to witnesses or to jurors. And the more I thought about that, I think that's kind of a myopic view of those judges. And that

One, I don't think that witnesses and jurors are going to parse if there is a threat to judges and law clerks and prosecutors. They're going to be parsing, oh, but I don't have to worry because even though those people have been threatened under constant protection, that wouldn't happen otherwise.

I mean, I just think that this spillover is something that is huge. And this is all about taking prophylactic steps. That's right. And the second thought I had was the court kept on saying, well, just remember what we're talking about is what steps the court should take in addition to what is already a crime. In other words, it's a crime to threaten people

a witness or a prosecutor. Exactly. And also what's already a condition of release, which is no contact with witnesses about the substance of the case. And I thought that also was, it didn't really come up at the argument, but there's a difference. And I thought this is one where this might resonate. I'm going to try this out on you. This may resonate with you, which is

To sit there and say, well, what in addition might be needed? Because there already is a criminal law that says you cannot threaten witnesses. But to say there's a criminal law, that means that you have to be able to prove the case beyond a reasonable doubt. And you could do that quickly. That's not how the criminal justice system works. That is...

The standard of proof is beyond a reasonable doubt, not a preponderance. So that's a very high standard versus more likely than not. So to say, well, don't worry, this is really just what in addition to the criminal law because it's a violation already, I think is not realistic in terms of the judges saying, well, there already is that protection.

Yes, you can always criminally prosecute somebody. It's after the fact, right? It's not prophylactic. And it's not going to give a lot of comfort to a witness that maybe if they get threatened, a year later, there'll be a prosecution that's successful. And if somebody can prove it. Right. Because it's just a complicated scenario. Or if you can find who even made the threat, right? You've got to find who made the threat. Yeah.

Absolutely. And then you also have to do causation, as we were talking about, the sort of call and response. Whereas if you have a prophylactic rule, which is no threatening statements, we don't care about the causality. We're just, we don't want that. You can't make the threat. Yeah. Exactly. So I think that's a good point. But I also think that back to the thing that the court was talking about last week at the argument about where's the impact on sort of the integrity of the criminal proceeding. Yeah.

Now, this is maybe a little different than the criminal proceeding, but one of the things that the declarant, the public safety officer who's part of the judicial threats assessment team up in New York in the court said is that because of this constant daily barrage of threats,

threats, phone calls, voicemail message, emails. This has resulted in the Judicial Threats Assessment Unit having to constantly reassess and evaluate what security protections to put in place to ensure the safety of the judge and those around him.

And the judge and those around him also includes courthouse staff. It includes jurors. It includes witnesses. It includes spectators in the courthouse. Right. So I think there is an impact. And I think that's one of the things that is important about Jack Smith having submitted this filing, because he's saying, look,

this came up at argument and here's information that's relevant to what came up. And this shows this real impact. And to your point about a myopic view, I mean, this is why I think our law is so far behind when it comes to how we deal with threats and intimidation and harassment, because we protect the first amendment and it's important. And I'm not suggesting I hate the first amendment, but we protect it, you know, so much.

Absolutely, in some cases that it gets to the point of being, to my mind, ridiculous that people would have to endure 20 to 30 calls a day, 30 to 40 emails a day threatening because they're doing their jobs.

or a witness because they're responding to subpoenas and doing what we ask of them in a civilized rule of law society, or to jurors because they're responding to their subpoena doing their civic duty. I mean, people should not have to go through that. And our law just needs to catch up with that. I agree. And again, that's why I was thinking that.

about the court sitting there saying, we're looking at it from this point of view of, well, you could always prosecute the person. That just is unrealistic in this situation. Too little, too late. I agree with you. It's too little, too late. It'll be interesting to see whether the judges in D.C., how much they... Because they obviously were very, very smart. Yes, yes. It was a very high-level trial.

argument last week, but it'll be interesting to see whether they think through, I think in a, I mean, it sounds grandiose, but in a deeper way, what the effect is, even if you're just concerned about witnesses and jurors, that this still goes to that. But I agree with you that the idea that I've seen

who are prosecutors not take on certain tasks because of the threats that are entailed and they don't want to do that. So the idea that this is the new normal because of Donald Trump is something that I think has to be

push back on. And we deal with this a lot in the law, which is, what is it? It's like new wine in old bottles. It's like this idea of like, how do you deal with a new situation? And you sort of look to these old analogies, but

Sometimes they don't fit. They don't always work, yeah. Yeah. And, you know, that moves the Overton window, which we can talk about the Overton window because Donald Trump, I think, has been, you know, the biggest mover of the Overton window we've seen in years. So, Mary, what's the Overton window? What's the Overton window? Well, essentially, the theory is, you know, what is your level of sort of acceptable behavior, right, that most people would agree is acceptable? And does that shift over time into something that is very different than what it used to be? And I think...

That is what we've been seeing. The behavior of people that not only feel like they have permission, but a right and an obligation in some ways to use threats and intimidation against other people with whom they disagree with politically. Politicians doing the same, embracing violence, this trend toward autocracy. It's all a normalization of violence and autocracy that I think

then kind of prepares people for if that's what comes next. And I think that's what Donald Trump is trying to do with a lot of his rhetoric and a lot of his social media and his rallies. And now, in many ways, what I think his attorneys are doing in their filings. More prosecuting Donald Trump, Trump's Thanksgiving threats, in just a moment.

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So everyone knows that, I guess it's been at least two months ago, Donald Trump filed a whole bunch of motions to dismiss entirely the D.C. federal prosecution. And one of those motions got accelerated and was heard by Judge Chuck Kenna, we're waiting for a ruling, and that's the motion to dismiss on presidential immunity grounds. But several other motions just became ripe, meaning they just became fully briefed last week on the 22nd, just before the holiday. And one of those motions

this motion to dismiss based on selective and vindictive prosecution. And essentially, these are motions where Donald Trump, through his attorneys, say, I'm being unfairly and discriminatorily treated, not only in comparison to other people throughout history, and he goes back to 1800, to various elections that had some level of dispute when no one got prosecuted, and I'm being treated very

vindictively because Joe Biden has essentially weaponized the Department of Justice. And this is very consistent with the president's Thanksgiving Day tweet, not only attacking Judge N. Goran and his clerk, but also Joe Biden and crooked Joe Biden and the weaponization of the Department of Justice, as well as all Democrats, rhinos, et cetera, et cetera. Happy Thanksgiving. Yeah, that's what basically he said, right? I'm not exaggerating. Happy Thanksgiving,

Yeah, all of you horrible people. Please look forward to all of these threats. Yeah, exactly. So anyway, in kind of continuing that theme, this is what his attorneys have argued, that this is all vindictive. And I think it would make some sense to talk about what selective and vindictive prosecution really is. And I know both of us in our careers have probably at various times had to deal with motions, and I know this was something that came up in Manafort. It certainly came up in the Stone prosecution. But

Selective prosecution really means that when you have people similarly situated who did the same things, they are being treated differently because of some, usually some insidious classification, like something like race or ethnicity or religion.

It could also be you're being treated differently because of your exercise of First Amendment rights. So there's a discriminatory intent and a discriminatory purpose in the prosecutor deciding to prosecute you and nobody else who did the same thing. And if you want to take sort of like the classic example of this, just so people understand, this is a case that went to the Supreme Court. This is a case called U.S. v. Armstrong where a whole lot of different Black defendants charged with

crack cocaine-related crimes, made an argument that in California where they were being prosecuted, people who were not Black were not basically being prosecuted at the same rate as people who were Black were being prosecuted. And they used various statistics and so on and so forth.

And the court actually rejected that. The lower court accepted it and said, government, you need to provide statistics to sort of rebut this argument that you're selectively prosecuting based on race. And the government refused to do so.

The case was dismissed by the district court. The Ninth Circuit affirmed. The U.S. Supreme Court reversed that, though, saying, you defendant group, you have not shown enough indication of selective prosecution to even require the government to produce statistics and things that might support your claim.

So I think we can all understand what the argument there is, and we can agree or disagree with what the Supreme Court did there. But that's like what you think of when you think of selective prosecution. That's what I think of. How about you, Andrew? So absolutely. And whether we like it or not, the Supreme Court has made it very hard to

get discovery if you're a defendant to support the claim of selective prosecution or vindictive prosecution. And to make out a claim, you have to show that there is both a discriminatory purpose and a discriminatory effect. Right. So what do I mean by that? It's that you have to be showing that the person acted

with an intent to single this person out for some improper reason, such as an assertion of the First Amendment or because of race, religion, a suspect classification under the law. That's just the intent standard. The effect standard is you have to be able to show, as you said, Mary, that similarly situated people at the same level of culpability

with the same quantum or a similar quantum of proof were not prosecuted. In other words, that you've been treated differently. And this goes back to the Aristotelian, you want to treat likes alike. But as part of that treating likes alike, that means you consider what is it that the person's alleged to have done? What's their role in the offense? So if you

have a leader, you could imagine prosecuting a leader, whereas you might let an underlaying go without being prosecuted. And then also, you look at the quantum of proof, because as we know, as firm prosecutors, a lot of times you decide, oh, yeah, I'd love to be able to prosecute these 10 people, but I only have proof as to three of them. I don't have enough. So in evaluating treating likes alike, you would look at all of that. And basically, the law

is very much heavily weighted on a strong presumption of regularity and against the defendant making this claim. I do want to address one quick thing, vindictive prosecution. Yeah, we haven't gotten to that yet. Vindictive prosecution is sort of like

it's not quite a subset, but it's useful to think of it as sort of something that's similar to selective prosecution. Here's like the way I've seen a vindictive prosecution claim raised. Somebody appeals something, a defendant appeals something, and

because they appeal or because they won, the government then charges them with new crimes. Something more serious, right? Exactly. And the idea is that, wait a second, you only did this because I appealed and won and you're trying to deter that kind of...

legal effort. Yeah. And in fact, it's usually that you were exercising a constitutional right, right? You have a right to appeal. You have a right to bring motions in your case, right? You have a whole lot of different constitutional rights in a criminal case. And so the idea is that the prosecution then punishes you for exercising that constitutional right, oftentimes by bringing like more serious charges. So how did these translate here? So this is

I think is borderline. Maybe it's not even borderline. Frivolous? It's frivolous. Yes, you knew where I was going with the F word, the legal F word, which is frivolous. I thought one of the ironies here was that Donald Trump, to make his factual showing,

relies on two newspaper articles, which I thought newspaper articles were fake news, but apparently... Not if you like them. Right. But of course that can't work because, frankly, you could be leaking the information as complete rumor and then saying, I'm going to cite fake news to support your claim. Then he, not only did the government say he's just relying on two newspaper articles, but he even

sort of distorts what one of them said. So he has zero evidence of this. And I thought the strongest point that the government made was, if you're looking for comparable cases, how about the scores of January 6th cases? Like, you know, he went back to like the 19th century and the 18th century for cases that were

Completely irrelevant. 1800, 1820, 1876. Yeah. So only if you sort of say, oh, they're prosecuting a president for doing something legal, which is not the charge. Right. So basically, this is one where I actually think there is an underlying serious issue here, which is it is important when...

In any country, when you prosecute a high-level political figure, it is important to not have show trials. It is important not to have selective prosecution. You want to see that the person is being treated comfortably, that they're not being singled out because of their last name or their political party. Something which, by the way, Donald Trump has said he wants to do when he becomes president again. Like, that's his goal, to be reelected and to use the Department of Justice to go after people.

He's been clear about that. He actually is thinking, I want to do selective prosecution. Right. That's right. That's what he wants to do. But here, there's just no evidence of it. Yeah. And to your point about no evidence and the newspaper articles, one of the things that's very interesting about the Washington Post article that he relies on is the whole point of the Washington Post article is that there was reluctance early on by the Department of Justice and the FBI after January 6th

to really start investigating Donald Trump and the people in his immediate orbit, as opposed to the rioters. And that concern was because of all the things you just said. We're talking about prosecuting a former president. That's a huge deal in the United States. It should be a huge deal everywhere, but it's a huge deal in the United States. You know, wanting to make sure that the department kind of restored its integrity, that it is independent and

and that it is not going to be weaponized by moving slowly. And I know you and others and I have various times criticized the slowness with which the department moved. But it's funny that now Donald Trump tries to use that slowness to say, then suddenly, once he declared his presidency, Attorney General Merrick Garland appointed a special counsel and I got indicted. And this shows that this was selective press.

Yeah.

for appearance purposes, should be a special counsel appointed here because we now are talking about an investigation and a potential prosecution of someone who will be running against the president of the United States, Joe Biden, if he runs again, which he had stated his intent to do so. So it's just interesting to me using this story that's talking about the caution and all of that to try to support his selective and vindictive prosecution claim. It's a post-fact claim.

If you were a lawyer, would you sign a brief that said this? It's so frivolous. But Mary, I thought it might be useful to say, what are you looking for in the next couple of weeks? What's on your plate of things to keep an eye out for?

Yeah. So obviously we're going to get, you know, an answer on these gag orders from both courts of appeals. Judge Chuck can will rule not only on this motion we're talking about now, but two other motions to dismiss on constitutional grounds. We talked about that one aspect of that is the double jeopardy claim. Another is just everything's protected by the First Amendment core political speech. You're not prosecuting me for anything that's not protected. First Amendment speech.

And then another motion to dismiss on statutory grounds. So those are all out there pending decision. But also, we're still waiting for Judge Chutkan's ruling on that presidential immunity motion. And that to me is like the big ticket, because as we've discussed, that's the one that if she denies that motion to dismiss the entire case on the grounds that

If former president is just absolutely immune, that is something that he will be entitled to appeal without waiting till after his case is finished. And he could appeal that to the D.C. Circuit and he could even seek appeal thereafter if he loses in the D.C. Circuit to the Supreme Court. So this is the one thing that has the potential. I shouldn't say the one thing, but this is a thing that has the potential.

The main thing. The main thing to potentially delay that March 4th trial date. Yeah. So I think that is, if I had to name the one thing I'm waiting for, I think there's no question she's going to deny the motion, but that starts the ball rolling for the appellate

process to start because that could delay the trial. That's sort of the ball of wax. I think two quick things in Georgia and in Florida to keep an eye out are in the next couple of weeks, we will have the argument on the removal. Remember that Mark Meadows was seeking to have his case heard in federal court? Well, that's going to be coming back up.

up with an issue as to where that case should be tried. And so I keep an eye out on that. And one reason that's so interesting is because there's been the reporting of Mark Meadows cooperating with Jack Smith, right? Yet we still have him as a criminal defendant in Georgia who tried to get his case to federal court that got denied. That's what's on appeal, as you say. But like

That whole fact that he's cooperating in one and a criminal defendant in the other is so bizarre to me. Potentially cooperating. Yeah, potentially. We don't know that. We don't know that. That's right. Yeah. I mean, he could be sort of like a hostile witness in that he was put in the grand jury, but he's not fully cooperating. So I'd keep an eye out for the removal. There's also...

now Fonny Willis's request for an August trial date. So that's something to keep an eye out for, like, when that is going on. Personally, if I were her, I would have asked for the May date that Judge Cannon is sitting on. I was shocked about August. And sort of forced that issue because I think she's going to move that date. So, like, I sort of have forced it. But, you know, I'm sure she has very good reasons. The final thing I would keep an eye out for is at the end of this week,

There are going to be some filings in Florida in the Judge Cannon case on the Section 4 filings for under the SEPA statute, the Classified Information Procedure Act. And we won't actually see the filings, but there's going to be an ex parte filing that's due by December 4th. And the defense gets to complain about and submit why it should or should not be ex parte. So I'm sure they're going to say it shouldn't be. And

The reason to keep an eye out on that is that's an area where when Judge Cannon rules, and by the way, she could also sit on that so that there's nothing for anyone to appeal. If she is getting that wrong in the government's view, that is something that they could appeal. And that also, depending on how she rules, that could lead to not just a reversal, but also...

I'm going to say potential recusal, depending on how she does it. So there's things to keep an eye out on on all of those cases. So that's a long way of saying, Mary, you and I will have a lot to talk about. We will. We will. So we'll have another 50 episodes. Yes, exactly. I think we will.

Maybe in less time than the first 50. We'll see. It's been great, though. It's been a really great chance to talk with you and with everyone else and hopefully bring some value to folks when they tune in. So one of the things I gave thanks for is not just the podcast and being able to parse this all out with you, but also it's just been so great to be able to talk to you and know that I'm going to be able to have this time to noodle through this. And also, as I said, when we were talking about Judge Cannon getting...

having you calm me down and center me. That's not something I'm always known for, so I appreciate that. Yes, and I'm thankful. I'm thankful also for, yeah, you making me look like the one who's calm, so that's great. Yeah, that might be sort of a low bar. Yeah, very. I know we make light, everyone, but we know this is really serious stuff. Sometimes you got to make light just to kind of get through. So I hope everyone had a happy Thanksgiving. Absolutely.

Talk to you soon. Bye. 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. The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers.

The head of audio production is Bryson Barnes. Paul Robert Mouncey is our audio engineer. 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.

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