Postmortem
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Hi, my name's Patrick Adams. You may know me as Mike Ross on the TV series Suits. And I'm Sarah Rafferty, and I play Donna Paulson on Suits. And we have a podcast called Sidebar, where every week we watch and discuss an episode of the show. Because here's the thing, neither of us have really watched it. That's true, at least until now. So we're going to cover all nine seasons. Share behind-the-scenes stories. And talk to our co-stars and friends like Gina Torres and Aaron Korsh. So look, if you love Suits...

Amazing. This podcast is for you. And if you've never watched Suits, also amazing. You can join us and we'll watch it together. I think we're going to have a lot of fun. Listen to Sidebar wherever you get your podcasts. And don't forget to follow the show so you never miss an episode.

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Hi, and welcome back to Maine Justice, which is, by the way, Mary, it's like the podcast formerly known as Prosecuting Donald Trump. It's like Prince. So welcome back to Maine Justice. It's Tuesday morning. It's January 14. I'm Andrew Weissman. And that other person who you just heard the laugh from is wonderful co-host Mary McCord. Hi,

Hi, Mary. Good morning, Andrew. It is kind of interesting to say when I hear welcome to Maine Justice, I think I'm standing in Maine Justice or something, right? Which of course we are not, as a matter of fact. But it is a little bit interesting because we just launched our name change.

last week with the first episode of the new year. But today, honestly, our discussion is going to be about the aftermath of the prosecutions of Donald Trump. And so this particular episode would have still been appropriately under our former title. Yes. So prosecuting Donald Trump postmortem. Yes. Yes. That's that's perfect.

So what are we going to cover? So we will start because so much has happened. I think this almost seems like it's ancient history now, but it of course is not. We will cover the historic first ever, which is a former president and incoming president being sentenced for crimes. That sentencing occurred in New York on Friday after the Supreme Court allowed it to go forward in a five to four vote.

We will, of course, talk then about the release by the Department of Justice at around 1 a.m. this morning of Jack Smith's final report, Volume 1, which is about the January 6th case. But before we talk about Volume 1 of the report, we will talk about the weeks-long legal machinations by Donald Trump and his co-defendants in the Mar-a-Lago case, Walt Nata and Carl

Carlos de Oliveira to prevent the release of both volumes of the report, volume one related to January 6th, volume two related to Mar-a-Lago. And we will tell you where things stand with respect to volume two. So there's just a ton on our agenda today. Yeah. So should we start with the New York sentencing? Yes. By Judge Marchand and the Supreme Court in a five to four decision. Thursday night, right? Yep.

just before the scheduled Friday sentencing did not.

grant the Donald Trump application for a stay. People will recall that he had asked for a stay, we talked about this last week, from Judge Mershon. He asked for a stay from the First Department, that's the first level of appellate review. He then filed basically simultaneously in the New York Court of Appeals and in the Supreme Court of the United States asking for a stay. And ultimately, every court denied it.

at every level, but it was five to four in the Supreme Court. We do not know the reasoning of the four, but the two switches that joined the so-called liberal three justices were Amy Coney Barrett and Chief Justice Roberts. It wasn't surprising that Amy Coney Barrett

would have joined, given her opinion, her concurrence in the presidential immunity case. But that set the stage then for the sentencing. But we do know the rationale of the five. Yes, exactly. Because it was not a full opinion. It was a short paragraph, but they did give their reasons. Right. And there were sort of two reasons. And Mary, what were they? Yes. So one was essentially, this is about...

Error correction, right? There are alleged evidentiary errors that have been ruled on and can be dealt with in the ordinary course of the appellate process. And what is the ordinary course? Yes, we have talked about so many times, which is that normally you don't get all these intermediary chances to go up on appeal while your criminal case is pending. If you are convicted, you bring all of your arguments about why your conviction should be reversed

after your sentencing. And so here, of course, this has been different for a variety of reasons, many of which we've talked about on this podcast. But one of the things that Donald Trump was arguing is that because the evidentiary errors he's claiming were the admission of his, in his view, official crimes evidence,

into his trial, even though the errors he was talking about were the omission of official acts evidence for which he would be immune in a trial for things that he admitted were not official acts, where the crimes he was being charged with, although he disputes them, were in his personal capacity. So in his view, this was an issue because it involved immunity that the Supreme Court should take up. And so I think it is significant that five justices were like, nope, that is

evidentiary error that can be dealt with in the ordinary course of the appellate process. Right. Meaning we're going to treat you like every other criminal defendant, which is lots of times when somebody, there's been an error in a trial, somebody raises on an appeal, and depending on what the type of error is, you can get a new trial. That's right. And you then, yes, you went through sentencing, but it's just an orderly process. It's otherwise

You're constantly bouncing back and forth to the appellate courts. And they're like, you know what? When it's all over and you've been sentenced, we'll hear it all at once. That's right. So this was basically, guess what? You're just like everybody else, even though we all know in a million different ways the courts have bent over backwards and treated him not like everyone else. But it was nice to see at least five justices take that view. So that was ground number one. Yeah. And then the second ground was

Because Judge Marchand, that is, of course, the trial judge in Manhattan, had already indicated that he was inclined to impose a sentence of unconditional discharge, meaning no jail time, no conditions at all, no going and seeing a probation officer, no fines, nothing. Papkis.

But because of that, there was no risk of sort of impeding on the incoming president's ability to execute his presidential responsibilities, which was another argument that Donald Trump had made, that this completely impacts not only me, you know, when I take the presidency after January 20th, but even in this presidential transition period. Yeah, meaning, you know, I have a lot of responsibilities as president-elect,

and this is going to take so much time and energy. But they basically were like, how much time and energy? You're getting the lowest possible sentence that anyone could possibly give any defense lawyer and defendant in any other circumstance would be grab it and growl. And it's basically no sentence, right? Right, exactly. It is no sentence. I mean, it is the sentence in name only. And that sort of gets to the big picture. The next point, right. So why bother? Why bother, Anders? Yeah, so...

I actually wanted to address a different point that has not been made on air. And I wanted to raise this with you, Mary, and with our listeners. It is not in any way to denigrate Judge Marchand. I think he sort of, knowing what the law is, knowing what the Supreme Court was likely to do, sort of read the room and did like the only thing he really could do in this situation. And it worked in terms of finalizing the trial court phase.

But I just wanted to raise the Overton window problem of where we are. There is a, you and I, this is like, you can tell I'm getting on a soapbox. Yep, yep, you're winding up. I'm winding up. Getting prepared. Right.

Mary, you and I were public servants for many, many years. We were not kings and queens. We were public servants. That gave us special responsibilities, not special rights and obligations to the public. At the top of that food chain would be the president of the United States. They are not a king. They're not a queen. They are there to serve the public. The idea that...

because of your job, let alone your job as a public servant, that means that it sort of trumps the criminal law is something worth thinking about. In other words, let's assume, what if the person was the vice president or a senator or the mayor or the CEO of Exxon or the head of a charity? Or what if you had to pick your horrendous crime? Think of in the 1950s, the Ku Klux Klan is convicted for murdering

for a black church, do you have a vote of the community as to whether the person's going to go to jail? I mean, that's not how the system's supposed to work. And here, I understand that the electorate decided that Donald Trump should be president. I'm not quibbling with that. I mean, that's the way democracy works. But we're now talking about what is the effect on a criminal justice system. Imagine that the crime was something that you thought was horrendous. So take it out of the Donald Trump...

So you can just think about it intellectually. What if the crime were mass murder or terrorism? This idea that we've taken it as a given that, well, of course, because you've been, you're going to do some job, it means it's not just a factor in the sentence. It's the cannot. Right.

happen. So in other words, just to sort of short circuit that, assume a person is found guilty of murder, but nevertheless is elected president. This bar on sentencing a sitting president, at least in federal, well, the bar that he alleged, right, of sentencing a

sitting present and certainly the bar against giving them any jail time would feel really extraordinary, right? Because it would essentially be saying, people, if you want to vote for someone who's been found guilty for murder, you're going to then absolve, your vote is the vote that's going to be respected and in many ways absolve

the person for that crime. But this is where I do think Judge Mershon said a couple of things that were important. Absolutely. And Mary, just to be clear, I'm raising a very different sort of question about what the law should be. Judge Mershon had to deal with the parameters of the laws it is. The thing that's different about law and science is nothing we talk about is going to change gravity.

And two plus two is going to equal four. But the law is malleable in that it's very much creating the society we want to live in. Created by people, yeah. Right. And people can change it. So Judge Mershon did what he did within the law as it exists. Yeah, I think he recognized without saying it kind of this, what you've just been bringing up, right? It's kind of extraordinary that the vote could have this impact. But he also wanted to make clear, and he did say this,

Despite the extraordinary breadth of those protections, one power they do not provide is the power to erase a jury verdict.

And by the way, for our listeners, the full audio of the sentencing, including what the judge said and what both the prosecution and the defense and the defendant said, that is Donald Trump, all of that is something that you can go to the Maine Justice feed and you will see the full audio. So you can listen to it if you didn't listen to it before. Absolutely. And I encourage people to do so.

So, but getting back to the sentence itself, I think in many ways that phrase there was the reason why this matters. I earlier said, so why bother if there's no sentence at all? Well, why bother is because as Judge Marchand said, these new trappings of office, the office is about to take,

they don't erase this jury's verdict. And it is important for that to stand and this conviction to stand and to have a dismissal like Donald Trump wanted would mean there is actually not a final conviction, right? The case was dismissed. And so he saw value in that, notwithstanding that because of the law and the way it applies to a sitting president, he felt that his hands were tied in terms of the sentence. He did, I think, find

find it very important to point out what is the same and what is different about the office of president and who holds that office from other defendants. He talked about that this was an extraordinary case because there was unprecedented media attention. It can be viewed fairly that this has been a truly extraordinary case. There was unprecedented media attention, public interest, and heightened security involving various agencies. And yet,

The trial was a bit of a paradox because once the courtroom doors were closed, the trial itself was no more special, unique, or extraordinary than the other 32 criminal trials that took place in this courthouse at the same exact time.

Yeah, and then he talked about the normal trappings of due process that Andrew, you and I have talked about throughout, right? The right to object to the government's evidence, the right to make your arguments to the court even during the trial, the jury's obligation to assess whether the facts have proved every element of the crime's charge. All of those rights that every defendant gets are very similar. But as Judge Marchand pointed out, then when he gets to these

trappings of the office and what he calls the protections of the office of the president. Those are extraordinary. And he says, I'm referring to protections that extend well beyond those afforded the average defendant who winds their way through the criminal justice system each day.

This is where he went back to the point, Andrew, that I think you were raising with a question about, is this the way the law should be? Because what Judge Marchand goes on to say is... No. Ordinary citizens do not receive those legal protections. It is the office of the president that bestows those far-reaching protections to the office holder. And it was the citizenry of this nation that recently decided that you should once again receive the benefits of those protections, which include...

Among other things, the supremacy clause and presidential immunity. And that is why he determined that the only sentence he was really permitted by law to give was a sentence of unconditional discharge.

Yeah, and for people who say, well, what if he had put this off and sentenced four years from now? In other words, because there would have been a hiatus because of that rule about not having a pending criminal case proceed against a sitting president. That rule being sort of a DOJ rule, but there's a very good chance that would apply to the states because you don't want 50 states all bringing criminal cases against a president and thus interfering with it.

I think at that point, I mean, a judge sentencing in this type of case four years from now, I think the chances that they would get a jail sentence just given that delay is, I think it was a matter of fairness, especially in a non-violent... Not to mention age by then. Yeah, age. Or a non-violent offense. Yeah, it just, it would have been inappropriate. We're not talking about a murder. All of this is a question of degree and kind. So in many ways, he did sort

sort of an extraordinary job in getting to where he did. But he also made it very clear that this was a sentence that was being imposed because of the presidency, nothing intrinsic to Donald Trump and the nature of the crime and what the sentence would otherwise have been. And so that sort of idea is one that we're going to, when we turn to the Jack Smith report,

Later in our podcast, that sort of idea of like what would have happened but for this is sort of you get the real sense. What would have happened if he had not been elected again is, you know, I don't know that he would have gotten jail time, but he certainly, I think, would not have gotten an unconditional discharge. I mean, that's probation, no fine, no jail, no nothing. That's just unheard of to get that.

So we're going to turn to Jack Smith because he actually talks about what he thinks would have happened if there would have been a trial.

That's right. In the report on in volume one. Yeah. In volume one. Exactly. This is a good break point. Yeah. Should we break and then talk about what's going on with volume two and sort of where we stand and what the courts have done, but also what Merrick Garland has said about volume two, which we started to talk about last week, but we have a lot more data now. But should we take a break and come back to that? Yes, let's do that.

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Welcome back. So there's been lots and lots of litigation in Florida and the 11th Circuit about the release of Volumes 1 and 2. Just to remind people, Volume 1 of...

The Jack Smith final report, which is now out as of early this morning, is the part of the report dealing with January 6th. There's also a part of the report, volume two, dealing with the classified documents case that is still under wraps and subject to an injunction. When we last left off in our last episode...

It's like a Dickens novel here. Yes. Where there had been an application by the two Donald Trump co-defendants to join the release of Volumes 1 and...

And two, somewhat unusual because Volume 1, of course, was not related to... Nada or Carlos de Oliveira. Exactly. Or the case in front of Judge Cannon, which is where they filed their application. Right. Like, surprise, surprise. Yes. And Judge Cannon grants a sort of temporary injunction purportedly saying, I want to keep things on hold pending...

the 11th Circuit decision on this because the two co-defendants simultaneously also filed an application in the 11th Circuit. And the reason for that, I'm sorry to interrupt, is because right now, the case before Judge Cannon had been fully dismissed, including against Nauta and de Oliveira. Right. The government had appealed that. Right.

And then the government dismissed the appeal as Donald Trump after he won the election. But that appeal is pending as to Nauta and D'Oliveira, and nothing was really pending against them before Judge Cannon. So that's, I think, why their attorneys were like,

Let's do both. Let's file before Cannon and let's file before the 11th Circuit. Yeah. Right. Let's do both because it's not clear she really has jurisdiction because she pointedly ordered the clerk to close the case as to all three defendants. There's no way

no pending case in the district court per her decision, because I think she pointedly, this is my subjective view, wanted to be like, I want them to be able to say there's no pending case here. And she closed it. That wouldn't have been necessary, especially since there obviously was going to be a government appeal, which there was. I remember the reason was she said that Jack Smith was not rightly appointed. She was the only judge to ever said that.

I want to make sure that with respect to volume one is obviously now out. All of that sort of ended up getting denied. By Judge Cannon, actually. Yeah. Right. And she ultimately got representations from the government saying volume one just does not relate to Nauda and D'Oliveira. It's about the January 6th case and any references are passing and don't mention them. And they were ordered to construe that

Like liberally and when they went through it and Nauda and D'Oliveira, their counsel was given an opportunity to see it. Donald Trump's counsel was given opportunities to see that. So anyway, volume one is out. Volume two, I want to make sure people understand what the dispute is here.

It is not a dispute between we want to... The government wants to release it publicly as they did Volume 1. And Nauta and D'Alivera and Donald Trump are saying, don't release it publicly. The dispute's a lot narrower because what Merrick Garland has said is that his intention is...

is to only release volume two related to Mar-a-Lago to certain members of Congress because they need it to do their oversight responsibilities and that they would get it and they would also be committed to not release it further. And the application before Judge Cannon is to preclude that. And where we stand as of this recording is,

is the judge said there's a temporary injunction that is precluding the government from even sharing this with Congress. So in terms of the public getting this, there's... That's not on the table right now. Exactly, because it's both precluded by Judge Cannon saying, well, I've precluded them sharing it even with Congress. But

But Merrick Garland himself, even if he's given a green light, ultimately by either Judge Cannon or the 11th Circuit, which has a pending appeal on this issue, Merrick Garland has taken the position that he doesn't think it's appropriate to share it publicly.

So I wanted to first ask you before we dive this, because there's a lot of minutiae about the 11th Circuit and Judge Cannon and the delay because we're really running up against the clock. I wanted to focus on the Merrick Garland piece of what is the stated rationale? And do you think it would be reasonable to have a different view of that debate?

that rationale and sort of what would be appropriate in this circumstance? Well, first off, I think we need to be clear. Merrick Garland made that decision and the Department of Justice made the representations to Judge Cannon that they did not seek to release volume two publicly. He did that at the recommendation of Jack Smith.

the special counsel. When Jack Smith transmitted both volumes to the attorney general on January 7th, and you can see this transmittal letter if you go online and look for the final report, the transmittal letter is there. He describes his obligation to transmit his final report

on both investigations to the attorney general. And he says in that letter, because volume two discusses the conduct of Mr. Trump's alleged co-conspirators in the classified documents case, Waltine Nada and Carlos de Oliveira,

consistent with department policy, volume two should not be publicly released while the case remains pending. So it was Jack Smith who said, I'm recommending you not release this publicly. It's still the attorney general's decision, but the attorney general's representations do make clear, as I recall, that Jack Smith also made that recommendation. So I think you're getting to the question of, is that right? Is the case

really pending against them. Yeah, didn't I hear you say Judge Cannon closed the case? That's right. You know, she dismissed it and ordered it closed. Nevertheless, there is an appeal, right, the appeal from the Department of Justice of her substantive ruling that Jack Smith was appointed in violation of the Appointments Clause and

and was paid in violation of the Appropriations Clause. That ruling is the ruling that the Department of Justice appealed. And if the 11th Circuit were to reverse her on that ruling, the case would go back to Judge Cannon so that the department could pursue the prosecution of Nauda and Diolavere. Now, they could not pursue the prosecution right now of Donald Trump because they dismissed their appeal as to Donald Trump

under the binding OLC guidance that you cannot prosecute a sitting president, which we've talked about. So that, I think, is the reason. And now we're going to get to, is that correct, right? That's the reason given. But let me just, again, before we get to the, is it correct statement,

So the thinking is you don't want to denigrate somebody when the classic case would be the case is actually pending a waiting trial in the district court and you issue a report. Hasn't been dismissed. And it hasn't been dismissed and you'd issue a report that suddenly denigrates them. No can do.

You can't do that under DOJ policy. You can't do that under a lot of local rules that exist in courts to not say disparaging things. But the government can't with respect to pending cases. It actually applies to the defense, to the prosecution as well. That's sort of the classic case. But here...

the Rube Goldberg that your analysis is, one, the government would have to continue to pursue the appeal after January 20th. Two, the 11th Circuit would have to agree with the government. Three, let's assume the 11th Circuit doesn't and it goes back to just a U.S. Attorney's Office to pursue, or it goes back to a special counsel. Well, the special counsel's gone and

And you have to assume that the government, either as a new special counsel or in the U.S. Attorney's Office, would want to— And this was, in fact, referred to the U.S. Attorney's Office in the Southern District. So the case would have to then be pursued. And what are the odds that this case would be pursued against Donald Trump's co-defendants where Donald Trump would be an indispensable and key critical witness, where the entire trial would be about what happened at Mar-a-Lago?

So the fanciful nature of this being something that would go to trial under the Trump administration seems so bizarrely remote when you compare it to the platonic ideal I started with, which is the pending case. And I would ask the question, what is the difference between taking this position with respect to Walt Madden and D.L. Avera and taking that position with respect to Donald Trump? Remember, Donald Trump's case was dismissed within a year.

So in four years, conceivably, it could be brought. But no one's thinking about that because they know, like, it's not going to happen in four years and it's probably not going to happen after that either. And the same thing is just as true with respect to Walt Nanner and D'Alivera. So maybe it's

It's slightly more likely with respect to DeLava and Walt Nauda, but it just, to me, you have a rule that I think, just to give you my bottom line, is I think the rule is being misapplied. And yes, I do think that they're being careful, and you're not going to get in trouble by doing that. But just remember what the downside is. This is information that is of extreme public interest. It's the reason Volume 1 was released. There's been

no public accountability. And this is an area where we don't have as much information as we do on January 6th because we have the January 6th committee hearings. Jack Smith has said that the report with respect to the Mar-a-Lago events talks about sort of why it happened.

which is something we have a big gap in knowledge, but it also presumably would give information about how Donald Trump treats or doesn't treat, with respect, classified documents, which could be really important to the intel community here and abroad, but also information

Kash Patel, who is a proposed nominee for the FBI director and has publicly said that he was present when Donald Trump declassified all these documents. And it would be useful to have the information about what he did or did not say and what the

what the contrary evidence could or could not be. So there's downsides. Well, to be clear, if that was grand jury information, that would be redacted anyway. But I have three things I'd like to say in response. Yeah, okay. Okay. So one is that I think that the department is acting, and because this is what they tried to do, which is proceeding according to norms that

with the assumption that those norms will continue to be followed after January 20th, notwithstanding that I think the reality that we all know is that they won't. So what do I mean by that? In an ordinary world,

I think, and we have discussed the merits of the government's appeal to the 11th Circuit. We have discussed how we think that the 11th Circuit would reverse Judge Cannon on the dismissal of that case and that that would mean it would go. I still think that if the case remains pending in front of the 11th Circuit and it would go back to Judge Cannon and it would go forward toward trial. And so I think that's a good thing.

I think the department's making its decisions as though that is the outcome. We know, or we have reason to believe, that after Donald Trump becomes the president, he will do one of a number of things.

or do all of them. Order his Department of Justice to dismiss the appeal as to Walt Nauda and Carlos de Oliveira, which means there would be nothing left even on appeal, which means there'd be no chance of reversal on appeal and sending it back to Judge Cannon for a trial. And he may also pardon de Oliveira and Nauda, which would mean never could there be a trial. So the reality is different from the norms. And I think when I look at what

Jack Smith recommended and what Merrick Garland then represented is making the assumption that there really could realistically be a trial against Nauta and de Oliveira, and they do not want to violate these principles of putting out evidence against them without them yet having their day in court.

That's my point one. Point two is people have certainly been talking about why the heck doesn't the Department of Justice just right now go ahead and dismiss the case as to Nauta and D'Oliveira because they have good reason to believe that's what Donald Trump will do. He has, you know, said this case was not rightly brought forward.

And then this problem of a potential pending case goes away and the department through the attorney general could decide it's in the public interest to release this.

I can't answer that except for this adherence to, you know, ideas of norms and that would seem overtly political, something done just to be able to release the report. And these are the kinds of institutional things that the department under an ethical rule of law based leadership is allergic to thinking about. But that's where reality is. And then my third point goes to the substance here.

Whether this comes, and I do think it would be very important for this to be released to the public, and it looks like unless something happens between now and Monday at 12 noon, it's not going to be released to the public. But I also think that it is very important, not just that it be released to the chair and ranking members of House and Senate Judiciary, as Merrick Garland has requested, but

But I think it should go to the chair and ranking members of the intelligence committees. Of course. And the armed services committees. Of course. Because I think there is important national security information in this report that they need to know in order to do their jobs

to prepare for what is potentially to come in the next four years. And by their jobs, I mean, notwithstanding that I realize the Republicans control both houses right now, the margins are slim and those members on these committees do tend to take seriously national security. And they may want to conduct some oversight based on this or even pass some legislation based on this. And

There's information I think they should know to get to your point about Kash Patel, about some of the people that Donald Trump is nominating to be part of his national security team. And that would include the FBI director as well as other important positions. So those are my three responses. So where things stand is we're waiting for Judge Cannon says that she is going to have a hearing this week on this issue. Friday. With respect to whether the report can be reissued.

released to members of Congress, as Merrick Garland would like to do. Again, just the Judiciary Committee. Yes, exactly. Chair in ranking the Judiciary Committees of both houses. And the 11th Circuit also has an appeal. So the 11th Circuit may step in. They may not. But those are the two places. In other words, they don't have to wait for her hearing. Right now, the government has separately appealed

Judge Cannon's injunction against the release of Volume 2, and they could act at any point. Exactly. So we have both of those things going on, but obviously everyone's running up against the clock here. This is probably a really good segue because we do have a report because Volume 1, which you alluded to, has come out.

So we'll take a break and come back and give you some of our initial thoughts of it's a very lengthy report. We will attach a link to it to our show notes, including his cover letter, Mary, that you talked about. Let's take a break and we'll come back and give at least initial impressions of what struck us, at least on that first go round of review. Sounds great. Hi.

Hi, my name's Patrick Adams. You may know me as Mike Ross on the TV series Suits. And I'm Sarah Rafferty and I play Donna Paulson on Suits. And we have a podcast called Sidebar where every week we watch and discuss an episode of the show. Because here's the thing, neither of us have really watched it. That's true, at least until now. So we're going to cover all nine seasons, share behind the scenes stories, and talk to our co-stars and friends like Gina Torres and Aaron Korsh. So look, if you love Suits,

amazing. This podcast is for you. And if you've never watched Suits, also amazing. You can join us and we'll watch it together. I think we're going to have a lot of fun. Listen to Sidebar wherever you get your podcasts. And don't forget to follow the show so you never miss an episode.

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So, Mary, you and I have now had a chance to speed read. And what we thought would be good is to give viewers, otherwise known as listeners, to give our listeners just our sort of first takes, because I'm pretty sure we're going to come back to things. But having had a minute and 32 seconds, or as we say in New York, a New York minute,

read this and not even really digest it, what were your sort of initial thoughts or thought in going over this? Yes. So, first of all, to the extent that anybody might have been under the expectation that this would include lots of new revelations about evidence, it doesn't and

And actually, I don't think we expected that because remember that after the Supreme Court's immunity decision, the special counsel had filed an extensive 165 pages at least explanation of all the evidence that it sought to use at trial because the court was going to have to make decisions about whether any of that was official acts evidence that couldn't be introduced. So we've seen a very sort of elaborate description of the evidence.

What I thought was actually much more interesting about this report

is a couple of things that had to do with the thinking that the special counsel and his team had to do, oftentimes in consultation, not with the attorney general, but with components of DOJ that all U.S. attorneys and special counsel are obligated under Justice Department procedures and policies to consult with, like the public integrity section, for example, when you've got a prosecution that

is during an election year, right? So followed all of these procedures, but getting in the heads of the prosecution team and their considerations when it came to the charging decisions that were made. And so, for example, not only does the report talk about why they decided on the four charges that ultimately were included in the indictment, both the first indictment and the post-immunity decision indictment,

which included conspiracy to defraud the government of an important government fund.

function, right? The counting of the electoral votes, the peaceful transfer of power, obstruction of an official proceeding and conspiracy to obstruct an official proceeding and obstruction of civil rights. So, okay, that was interesting. But what's more interesting is them talking about looking at various defenses that Donald Trump might raise and why they decided that those defenses would not succeed and they should still bring those charges.

And those included the defenses of good faith, good faith belief that there was fraud in the election, advice of counsel, and First Amendment.

They determined, first, there really is no good faith defense here because Donald Trump had been told by every advisor in the federal government as well as state officials responsible for the elections that there was no fraud. And even if he sincerely believed it, you can't use deceit just as an excuse for good faith when you've been told otherwise. It also suggests not good faith. That's right. 100%.

I always loved on that. I mean, there's so many examples and we're not going to delve into the facts, but I always loved the statement that was issued by Donald Trump saying the vice president, I'm paraphrasing, the vice president agrees with me that he has the power to not count the electoral votes when the vice president had said, and it's been reported and it's in the report as well, had said,

had said that's the opposite of that. The exact opposite. That's right. And so the president at the time goes public and that led to so many people saying, you know, hang Mike Pence and he's not doing the right thing because Donald Trump said he had said that he had that power and agreed with me when he had actually said the opposite. And that

It's so hard to have a good faith defense when you're doing that. That's right. Absolutely. That's the deceit, right? And there are many other examples. The special counsel talks about sort of the evidence that supports that there was no good faith. Second, when it comes to advice of counsel, the special counsel said we looked at that, but you can't rely on the advice of counsel when your lawyer is an accomplice. And the lawyers who were telling him to do this scheme were people who were

unindicted co-conspirators, people like Rudy Giuliani and John Eastman, not the lawyers in his own White House counsel's office and his own Department of Justice who were telling him something very different. And the special counsel's point is

He wasn't relying on Giuliani or Eastman for legal advice in that attorney-client relationship. They were part of his conspiracy. So that's why they rejected that idea. And then finally, they discussed the First Amendment. The report discusses the First Amendment, that the speech, that First

First Amendment does not protect speech that is used as an instrument of a crime. And here it's the lies and known false statements about so many things brought in the election, about election officials, about dead people casting ballots. All of these things were all part of the charged conspiracies, plural, and so therefore not protected speech.

So I think that's, I mean, some of these, we talked about these defenses before and the reasons that they would be denied, we thought. And in some cases, the district court had ruled on aspects of these. But this is part of what goes in. And you and I know from our time in the U.S. attorney's offices,

that anytime you're doing a prosecution memo before making charging decisions, you're raising the defenses and seeing if you can defeat them. Maybe the most interesting thing to me about this whole report, though, is... I know what you're going to say. The charge not brought. Yes. Exactly. This is why we still have to find something we disagree on. Mind-milled.

So, yes, the charge not brought, which is the actual insurrection offense, right? It's a statute under Title 18 of the U.S. Code, Section 2383. And

And I mean, I had surmised and various people had surmised why that charge wasn't brought. But as an outside observer, when you're looking at what happened on January 6th, it looks like an insurrection to me. And it would have been a very direct and powerful charge. But what do they say? Because this is such a one for it definitely in the weeds, but it really talks about all the different components that would have to be proved. That's right. And again, these are the things you think about as a prosecutor when you make charging decisions. And it

ultimately comes down to two things, but I'll explain those and I'm sure you'll have things to say about them too. Litigation risk and lack of necessity to bring that charge in order to hold Donald Trump accountable. Other charges were powerful and would allow for the admission of all the same evidence that an insurrection charge would allow for.

And so that kind of is a little bit self-descriptive. Like, we've got other powerful charges. We don't have to add this one. It's not going to change sentencing exposure. It's not going to change evidence. We don't have to do it. And the reason that's important is because of the first reason, litigation risk.

They're like, this charge has not been used for more than 100 years. There are questions about what is even the definition of an insurrection. They recognize a whole bunch of trial judges and circuit judges, I believe, in the District of Columbia have said in the course of the January 6th prosecutions of those who attacked the Capitol, they have called it, just in sort of common parlance, an insurrection. And the special counsel's report gives lots of examples and quotes where this was called an insurrection.

But they say, we understand why courts refer to it that way. But when we look at historical uses, they say, of the Insurrection Act, it's not just

It has always involved overthrowing a sitting government and not using the government to maintain power. And that's really interesting. And I guess my only quarrel with that would be, I get that for Donald Trump's use of his Department of Justice and his own pressure on state legislatures. He's like using the government. But what about encouraging the rioters and the attackers to

to engage in that attack, which was on the sitting government. It was on Congress. So that's just my little note of I do think there's a response to that, but

But I do understand it. And it also was to impede the incoming administration. That's right. But they did point out that although we're making these kinds of arguments, they were like there was some law to the contrary. There wasn't a lot of law on this particular statute. Therefore, it's a risk, right? There's all this litigation risk that they're talking about, which is just the mere definition of insurrection was an issue. And then what would the intent need to be?

And then the sort of Brandenburg First Amendment issue of terms of

While they say the president and their view could foresee violence, it's very interesting language and clearly very parsed that there was not direct evidence that he intended the full scope of what happened on January 6th. Now, there's a lot encompassed in that because obviously there can be circumstantial evidence, not direct evidence.

And you could have evidence that goes to maybe not the full scope, but some of the scope. That's right. And also there's normally, as you know, there's a jury charge that says you're presumed to intend the natural and foreseeable consequences of your actions. So once they say it was foreseeable to the president that there would be this violence, you would get a jury charge that would help you with proving intent. But

But that's why I think the second thing you said, Mary, is they're flagging all of these open issues. The fact that it's essentially a novel charge, that there are some open legal issues. And essentially, it's like we don't need it because we can bring something that's sort of straight down the middle. I remember Michael Dreeben used to say this, which was, you know what gray is?

gray is for civil cases, gray is not for criminal cases. Yes, the stakes are higher in a criminal case. Yeah, and plus you're holding someone to account criminally. It should be a

A fair way. And just to go back to your point, it wasn't like the specials counsel is saying we think we would lose on these arguments. In fact, they elaborately say there are good responses to these arguments, but there's not a lot of precedent here. These are open questions. Therefore, it could slow things down in litigation over these questions. It could result in convictions that might be overturned, etc.,

And we have these other charges that are powerful, that they felt were very well situated within existing precedent. And so no need to go forward. Obviously, we didn't get through a trial before the election anyway. But the one thing that always really bothered me about not bringing this charge was

is that I do think had there been a trial and had the jury found Donald Trump guilty of insurrection, then he would have been prohibited, I think, under the 14th Amendment, Section 3, from ever holding office of the president again because it denies that privilege to someone who has committed an insurrection or a rebellion against the Constitution. Mary, are you reading my notes? No, but I'm just thinking of the same thing. That is literally...

Literally the exact same thing, which is I read that. And the one thing that's not in the report, it

at least I don't think it is, we obviously are going to go back over it, is that this is the one charge where in the statute, if there's a conviction, it says what the penalties are. And the penalty is you cannot— Congress has passed that, so it would have satisfied the Supreme Court decision about you needed an implementing statute—

that you could not run again. So it would be a little bit like Bolsonaro in Brazil. And so he would have been disqualified absent being reinstated by a certain percentage of Congress. Because Congress can do that too, yes. So it's not in there that they considered that or didn't consider it. And there's no question if they had charged it, it would have led to claims of politicization that's being brought after so long. That's right.

with it not being brought and look at all the open issues here. And it's only being brought because of the penalty. He would have also argued now, I think unsuccessfully, that he was acquitted of that by the Senate. And therefore, this would be double jeopardy. I think there are responses to that. I think that's wrong. But this does allow me to say I still put the blame on a lot of this on the Senate, which

should have convicted him, which we know a majority did, but not enough for two-thirds. And some of those who did not vote to convict said it was because two things. One, they weren't sure they could actually impeach someone who was no longer president, because remember the impeachment trial occurred after he had left office. But

But two, and this is the one that really gets me, oh, leave it to the criminal system because the criminal system will take care of that. And then we've seen what has happened there, the presidential immunity decision and actually Trump arguing, no, you actually can't criminally charge me because impeachment is the only remedy. So...

I still take things back to the Senate's failure. Of course. And then this is one where, as we talked about, there are a lot of proximate and but-for causes as to why we're here. And the Senate is one, and the Supreme Court is another, and there are lots of other arguments to be made about other players in the system. That's right. That's no question you're right. Yes. So you want my big picture? Yes.

Oh, there is one other thing that I think, and this is getting maybe something for a longer discussion. I also thought when they went through investigative challenges, it was interesting to see how they called out Twitter because...

because Twitter actually refused to comply with a court-authorized search warrant that included a nondisclosure order, meaning Twitter could not tell Donald Trump about that. They just outright refused to comply with it and had to have a court order them after, again, it already was an order. Court ordered them to do it after a hearing and then they got fined for that. And I just think it's, particularly given where we are right now, and again, it's not even Twitter anymore, it's X,

And particularly given who is the head of X and who is now actually seems to be having quite a bit of influence on the incoming president and is this head of this DOGE, the Department on Governmental Efficiency. It's just an interesting fact there. Yeah, the department that's not an official department. Exactly.

So my comment was, people will see in the beginning of the report is a four-page, essentially letter, like a cover letter from Jack Smith. And it is surprisingly personal. I was comparing it to the Mueller report that obviously we worked on and I've worked on with a bunch of other people. And this is a very personal letter. It talks about his own personal background, his views of his team, the goals of...

the special counsel, how it fits with the department's goals. It's beautifully written. It's very embedded in the traditions of the Department of Justice and what guides him and the team. It talks about how much his team went through and has gone through in terms of harassment and threats and vilification. And it also talks about his history at the

as well as outside the department where he talks about his service at the state, national, and international level. And so it's beautifully written. And so you're probably thinking, Andrew, what's your point? It also has conclusions. So again, it's different ideas

than the Mueller report. But understandably, here he's talking about two cases, and it's cases where there was an indictment because he was allowed to have an indictment. So it's different in kind that what Mueller could do. But it's got conclusions. For instance, it's got conclusions, but he thinks that for the election, that there would have been certainly ample evidence to justify a conviction here. And

I think it's great that it's here in writing, but, and I've talked about this in other forum, I'm old enough to remember Archibald Cox, who was the special counsel during the Watergate era, and he had a live press conference when the issue came up about why he was going to the Supreme Court to ask them to have the president turn over the tapes and why he was rejecting a compromise being proposed

where he wouldn't get the actual tapes. And he could have, and he did actually have a written submission to the Supreme Court. He could have just left it at that. But the press conference allows you to do something that, Mary, you and I know from doing trial work is assess credibility. And also, we're doing a podcast.

We don't just write a newsletter and say, read it. I mean, you and I write a lot also. But the point is, I think it would have been helpful to have learned from the Mueller experience and other special counsels and look back to Archibald Cox to say that this is such an important thing that Jack Smith and his team did. And he

carefully wrote what he wrote and was careful about what he would say and what he wouldn't say. But I just thought it would have been very useful to have a press conference and to have a forum where people could hear Jack Smith. I think he's a very credible person, and I think it would have been very useful in the same way that people have talked about cameras in the courtroom or that we've played clips of Judge Mershon for the podcast.

the public to see these people. And that way, that also can undermine them being caricatured and characterized and vilified because they're allowed to speak for themselves. Yeah. And it's certainly possible because we saw this after the Mueller investigation that at some point, Jack Smith will be asked to testify before Congress about this. We definitely saw that with Robert Mueller.

I will say I see the powerfulness. I can also see Jack Smith, who might have thought that the report speaks for itself. His letter speaks for itself. He would be criticized for trying to be political if he did a press conference, you know. Yeah. And let's face it.

He was very quiet here at the end. I mean, they have this report, which speaks loudly, but he left the department on the 10th and we all knew he would resign before January 20th, but he left the department on the 10th. And the way we know that is because it was in a footnote in one of the briefs in this whole legal dispute we've already talked about in this episode online.

all the litigation about whether the report could be released, the litigation that was taking place in Florida and in the 11th Circuit. And literally, it was in a footnote, Jack Smith separated from the Department of Justice on January 10th

So very quiet. It also makes me think this was not the only special counsel report that was issued in the last 24 hours. Unbelievable. Yes, yes. So David Weiss, the special counsel who'd been appointed to do the investigation of Hunter Biden, also released his report last night, several hours before Jack Smith's report. He, of course, also did not hold a press conference. His report's

Different in the sense that both of the Hunter Biden cases had gone to just short of sentencing, right? They had involved plea in one case and a jury verdict in another case. So also that influences what you include in his report. And his report's relatively short, I think about 27, 28 pages. But I do think it's something to show within one 24-hour period, we have special reports about investigations into a former president and a current president's son.

And that is on the heels of a special counsel report by Robert Herr about the current president. So to the extent that people want to criticize the Department of Justice or Merrick Garland having anything to do with misconduct

making special counsel reports public, the one thing that he definitely can say is he has been consistent. He has released them all. Yeah, and there have been special counsels and they've been for Republicans and Democrats and it's simply looking at alleged wrongdoing

regardless of party. That's right. Well, Mary, this has been like an incredibly busy day. Unbelievable. And an incredibly busy 24 hours. So folks, stay tuned and thanks for listening. And let me remind folks that you can still find us in the same Prosecuting Donald Trump feed in

It's just called Maine Justice now. It's still Mary and Me. You're stuck with us. And so if you currently follow the series, you'll continue to get new episodes weekly. And if you don't follow the series, please consider following Maine Justice moving forward. Also, remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free, as well as subscriber-only content.

In fact, later this week, our very own Mary McCord is going to be testifying before the Senate Judiciary Committee in regard to the confirmation of Pam Bondi as attorney general. So I'm going to speak with Mary later this week to talk about her testimony and those hearings. And that's going to be available to MSNBC premium subscribers. I cannot wait for that. Mary, you're going to be fantastic.

Well, I appreciate that vote of confidence. We'll see how it goes on Thursday. And in the meantime, to send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at our new show email, mainjusticequestions at NBCUNI.com. This podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our

Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president of content strategy for MSNBC, who as of today has been named the interim president of MSNBC. Congratulations to her and to Rashida Jones, who announced today that she's stepping down as MSNBC's president.

Thank you to both of them, Rebecca and Rashida, for their support of the work that Andrew and I do every week to be with our listeners. And best wishes to Rashida in her journey ahead. Yes, thank you to both of them for all of their support, to Mary, me, and the incredible team, the names of whom Mary just listed. And once again, you can search for Maine Justice wherever you get your podcasts and follow the series. ♪

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