Removal, Recusal and Restrictions
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Hello and welcome to another edition, our latest edition of Prosecuting Donald Trump. Actually, the edition where we're actually just the two of us and we're not doing anything live in some venue where I get to be physically with you. No, we're back to our looking at each other over over the virtual stage.

application here. So good morning, Andrew. It actually will be really nice just to have a nice normal conversation about the abnormal, which is the indictments of a former president. There's tons going on. I have a feeling I might not need to say that with you anymore, Mary, because I think we're sort of going to be in that heyday. So Mary, there's tons going on this week. Actually, as we're talking

talking. There's actually a hearing going on in Georgia. We're going to get to that. But in thinking about what we're going to talk about, it's sort of removal, recusal, and restrictions. Yes, our alliteration. So one of the things that's happened is that Jack Smith has made a filing seeking to restrict, hence the first R, with respect to what it is that Donald Trump

can say. That's something that we have the brief from the government. We don't yet have the brief from the defense, and Judge Chutkan will be ruling on that. We're going to get in sort of the ins and outs of that. And then there's more going on. Yeah, the other R, recusal. We have Trump's demands that Judge Chutkan, the judge in the District of Columbia, the federal indictment there, that she recuse herself from the case, arguing that she's

biased against him and she won't provide him with a fair trial. And we have quite a lot to say about that. That motion is fully briefed. Trump's team filed their reply brief yesterday, so we expect the judge will take that up very soon. Yeah, and by yesterday, that's Sunday. So this is one where the judge really had quick

And the ground there is that she either can't be fair or she has the appearance of not being fair. So we'll get into some of those technicalities. I'm pretty sure this is one, Mary, where you and I may see this

Exactly the same. Shocker. Spoiler alert. We're going to finish up by talking about the thing that's ongoing in Georgia, which has to do with the latest defendant in the state case who is seeking to remove his case to the federal, uh,

jurisdiction, and that's a hearing now before federal judge, Judge Jones. This is following the heels of Judge Jones issuing a decision against removal with respect to Mark Meadows. That's now being appealed by Mark Meadows. So this is now Jeffrey Clark's

effort to do that jeffrey clark of former very senior official uh the justice department so we'll end with that i actually have a lot to say about that you have a lot to say about everything andrew yeah you're i guess that's why we have a podcast wait so wait but you say that not necessarily in a good way it is a good good you sound like a lot of my friends which are basically like okay so

It's good, but I'm going to keep tabs today on how many anecdotes and how many points. So I got a running list here. Oh, great. Because I have a little... Wait, this doesn't really count as an anecdote. See, already you're seeking exceptions to the rule. Well, I'm going to tell you it, and then you can decide which category it goes in. Which is, in talking about how much I like to talk, this reminds me of this old joke about this opera singer, and she finishes her concert, and afterwards all these people come up to her, and she says...

you know, I thought I sang that very well. I hit the high C correctly, but the F was not exactly what it should have been. And she goes on and on. And then she finally says, you know what? Enough about me. What did you think of my performance?

Okay. We'll ask that at the end. Anecdote? Anecdote? It is an anecdote. It's just not related to... To anything. To Donald Trump's indictments. But okay. It is very much related to Andrew Weissman. So there we are. Exactly. Okay, so enough of the levity. Seems to me, because I mean... This is serious stuff today, yeah. We come to... Exactly. There are actually a lot of really interesting and serious things to talk about. So...

Which do you want to get started with, Mary? Let's start with Jack Smith's request for some restrictions on what Mr. Trump can say outside of court. Some are calling that a gag order, but we're going to talk about why we don't think that's the right thing to call it.

Yeah, maybe the one place to start is the local rule in DC. And that's something I knew very well from the Mueller investigation. So local criminal rule 57 in Washington, DC is a blanket restriction on criminal defense lawyers and prosecutors, both sides.

in a criminal case as to what you can say about that case. What they're trying to do is say that the lawyers in a case cannot make statements outside of court that relate to the case. So you can't be talking about the facts of the case. You can't be talking about witnesses. You're not supposed to be disparaging of one side or the other. That rule is crystal clear.

And the government says, and I have to say, they're entirely accurate that John Loro, one of the lawyers for Donald Trump, directly violated that rule because he went on TV and completely flouted that rule. But they do note that after it was raised by the court,

that he stopped. Exactly. And that's something that the lawyers all know you can't do. And just to come back to that comment of extrajudicial, like what you said almost defines it. When you are speaking outside of court, that's an extrajudicial statement. So on TV, two reporters out in front of the courthouse, if he's making representations in court, well, obviously he's going to be talking about the case. One of the things that happens, Mary, because of that rule is

is that the filings start to become very political. I remember Amy Berman Jackson saying, I don't know exactly what audience you are trying to speak to, but it's not me. I mean, she obviously did know who they were speaking to and was, you know, they were speaking to the public or when it was a

Trump loyalists. They were speaking to the then president, President Trump. So because of that rule, it does actually amplify sort of political discourse. We saw that in one of the recent filings yesterday where Donald Trump's lawyers basically made a point of saying he's doing really well in the polls. And Biden started this whole thing, even though there's no proof of that in terms of instigating the case, because that was their way of

essentially sort of getting around the direct requirements. Because those pleadings will be publicized. And so they get the message out that way. Yeah. But I think this motion is much less about the attorneys, I think, really, than it is about Mr. Trump. And that rule is a separate subsection, right? That's 57C, right?

Local Rules 57C, which basically says in a widely publicized and sensational criminal case, the court on a motion made by either party or on its own can issue special orders governing manners like extrajudicial statements of the parties. Right. But just remember, in most cases, the defendant doesn't really have, you know, a megaphone. It's just not a big issue. Even defense lawyers, well, they can't do it or prosecutors can't do it.

but there isn't really an amplification. So this is really addressed saying, you know what, judge, you should sort of, you know, the restrictions that exist with respect to lawyers on a case, they need to be imposed with respect to the client. Mary, I know we have only the position from the government. We don't have the position from Trump yet, but what's your initial thought on this?

how you think this might fare. Yeah, you know, this is tough because and this is one of the reasons that, you know, the other side will come back very much saying this is a gag order because they want to send this message that this is trying to gag someone who is a candidate for president of the United States. And as a candidate and as an American has a First Amendment right to speak and they will try to portray it. And that's why that term will get used as trying to put a gag

on Mr. Trump. The government takes real pains, I think, in its motion to point out it starts with a whole long discussion about how Mr. Trump's

statements and lies, frankly, about other people, officials in Georgia, election officials, as well as, you know, people in the secretary of state's office, people all over the country who've been at various times involved with something that Mr. Trump, you know, opposed people who stood up for the certification of votes in their states.

and also even in their counties, right? He's come out so forcefully against those people. His own chief of election security at the Department of Homeland Security, right? He maligned his own chief and Chris Krebs and fired him. And what the government explains in the first half of this motion is those people who he named

publicly in his social media posts and other statements, suffered from terrible threats and harassment and really things that really heavily impacted their lives. They then transitioned to this case, right? The statements that Mr. Trump has been making with respect to this case. I mean, I think it was the day after the indictment, right? If you come after me, I'll come after you. He's called Jack Smith and Jack Smith's team deranged. He's said that Judge Chuck's in

hates him and is biased and there's no way he can get a fair trial. And all of these things the government says not only could prejudice the jury pool in DC because they're reading these things, they're seeing these things, but they also intimidate witnesses, they intimidate potential jurors, and they can cause, you know, a lot of, wreak a lot of havoc in terms of people's lives. And they even note that a jury in one of the other January 6th cases involving one of the rioters

came to a judge last week in the District of Columbia to say, basically, you know, does the defendant have our names and addresses and ways to contact us? Right. They're nervous about their own safety in these cases involving the insurrection and the attempt to overrule the will of the people.

So I think the government has been smart in kind of how it's presented it and particularly in what it says it's requesting and how limited it is. And I'm going to read that just so people know and then would love your view. The government's proposed order specifies that the statements it wants to restrict are

would only be those that are statements regarding the identity, testimony, or credibility of prospective witnesses or statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory or intimidating. And they say the order would also specify that it's not intended to prohibit quotation or reference to public court records of the case or evidence.

the defendant's proclamations of innocence. So they've tried to be narrow. Nevertheless, I suspect the other side will come back forcefully that this is gagging the president. And I think there's a real balance there. And Judge Chutkan will really have to reflect on how necessary she thinks an order is and how far it can go without

infringing on the former president's First Amendment rights. What are your thoughts? So, yeah, I mean, I think that Judge Tutkin is going to do something. And the question is what? I do think that the government was smart in not framing this as he is committing the crime of obstruction of the proceeding or of

of a particular witness, but rather dealing with it in terms of the rule with respect to lawyers saying, you just can't talk about the case in a way that would prejudice the jury. Even though laced throughout this are the question of harm and fear. I'm very reminded of a report just in the last few days from Mitt Romney that

In connection with the impeachment, there were senators who decided not to vote for impeachment of Trump because they were concerned about their own safety and the safety of their families. In other words, fear works in terms of that intimidation aspect. So I do think that the judge is going to do something. And I share your view that...

The First Amendment is not absolute. I don't think when you think of a gag order, you think of this idea of prior restraint on a newspaper, which is, you know, anathema to the way we think about the role of the fourth estate. Here, defendants and their counsel, in the same way prosecutors have restrictions on what they can say once you've brought a case. And frankly, on prosecutors, even before you bring a case.

And so for the same reason, a defendant is not completely free once they've been charged. They are under restrictions in terms of reporting to pretrial. They can even be in jail. So there are all sorts of things that restrict the normal liberties and rights that you have.

But I do agree it's a balancing act. I think that Judge Shutkin is going to do this in incremental steps. And so, but that's, that is what the government is proposing. And I think it's smart for them to do that. And I do think there's precedent for it. Amy Berman Jackson had this happen with respect to Roger Stone when he posted online something, you know, very, very serious, which was a picture of the judge with crosshairs next to her face. And she said,

I think because it was aimed at her, was more lenient than perhaps it would be if she had seen this with respect to jurors or prosecutors. Or a witness, exactly. And she restricted sort of his ability to post in terms of...

what could be done. So it'll be interesting. That's not going to get briefed until later this month. And there is a motion now fully briefed in front of her, which I think she's going to deal with immediately. Yeah, exactly. Keyword in the Trump cases. But do you mean that? I think not in the Fannie Willis sense of imminently. Right. I mean that actually really soon, like this week, probably. Yeah, I agree.

More prosecuting Donald Trump, removal, recusal and restrictions in just a moment.

So why don't we turn to the motion? This one is by the defense. So we just finished talking about a motion by the government. It's not fully briefed, so there won't be a decision imminently on that. But there is a motion by the defense to have Judge Chutkan recuse herself. And

I'm going to give you, before we get into the niceties of this, Mary, I wanted to give you what I took as a, almost as like a non-lawyer, the complete truth.

Let's see, what would be the non-legal term? Chutzpah.

of impropriety or an appearance of unfairness that you can be, and that we're just concerned about the appearance. And the idea that that is a motion being made by Donald Trump, who from even before the charges has made it his business to undermine the appearance of

judicial integrity by this judge and any judge who he thinks might not be favorable to him. So it's like any judge but Judge Cannon in Florida has been subject to these attacks and the entire judiciary is subject to these attacks. And so let me just read a couple of things from the brief that I just was like, you've got to be kidding me.

So the core value at issue here is whether the public will accept these proceedings as legitimate or instead view them as a politically motivated effort by the incumbent administration to take out its most significant political opponent in a presidential campaign.

dash. The opponent, who, by the way, is not only free, but has a strong lead in the polls. So back to your point that sometimes attorneys speak through their pleadings, the things that they're not allowed to say extrajudicially. This was the perfect example. This was another quote. No system of justice can survive if its citizens lose faith in it.

I mean, the idea that this is a statement being made in legal filings by Donald Trump is beyond the pale. Because every single day he is attacking exactly what he says is important. And so big picture, it really comes...

comes with poor grace for him to be saying this. And I'm not saying that there is legally, it means that there's a waiver on his part. The judge is still going to do her duty under the law, but it is preposterous. Yeah, the undermining of the faith in our governmental institutions and in democracy is really coming from one place right now. And it's not from Judge Chuckin.

Yeah. And then we talked about, I think, the fact that this is a belated motion, that this is one that should have been brought earlier, that there's gamesmanship if Donald Trump did what he did, which is to wait and see how she ruled on the trial date and then say...

oh, I don't like that, so now let's see if I can get rid of her. What you're supposed to do, since the recusal is based on things that are not about her rulings now, really it's about one statement that she made in connection with the sentencing. She said, essentially, Donald Trump is free. While he remains free. And hasn't been charged. Exactly. And clearly was a reference to Donald Trump. And that single sentence is really the gravamen of why they say that rule.

she should recuse herself. And Andrew, can I interrupt to go back and make sure just for listeners, we maybe tell a little bit more about these statements. And also, I have a comment, and I think I believe this to be right, because I've had this told to me twice now, but I always forget it. After last week's episode where I used, and maybe you did too, the term gravamen, I received an email correcting me that the actual pronunciation is gravamen.

Now, I bet you if we had said Graveman, we'd have all kinds of emails saying, why are you saying Graveman? What are you even talking about? Because I think this is one of those pronunciation rules that is honored only in the breach because almost everybody says Graveman. But anyway, just had to throw that out. You say tomato. I say tomato. Absolutely. But anyway, to get back to this, basically what Trump's team is saying is in two sentencings of January 6th rioters,

You made statements that show you think Donald Trump should be indicted. And in both of these, what she was doing was responding to arguments made at sentencing that essentially I should be given a lenient sentence or no sentence of incarceration at all because I was just doing what the former president wanted me to do. And I was swayed by his claims of a fraudulent election and a rigged election.

and I was swayed by the mob, and so I should be given leniency because of that. So in each case, she's responding to that argument and basically saying –

Whatever you may say about who you were responding to, you have free will and you made a decision to go engage in violent acts at the Capitol. And in the course of that, in one of those times, she said something about you had like allegiance to somebody who, by the way, remains free to this day. That's the one that's a little bit trickier, I think. I agree. Look, that statement obviously is better not having been said, but the burden is on

the defense by clear and convincing evidence to show that there's an appearance issue here, it seems to me that could hardly be the ground. And the government, I think, cites an incredibly on-point case

from the Watergate period, where Judge Sirica, then the chief judge, made comments essentially about why is Nixon charged? And that gets appealed. And the Court of Appeals basically says, hey, the fact that he had a persistent but perceptive comment

comment about wanting to hold all of those people to account is not a ground for recusal. And here, even though the defense wants to say

Yes, she said it in court, but it's about things that she may have learned outside of court, which is a legitimate argument for them to make. The idea that she wouldn't be exposed to that, and especially when Donald Trump himself has done so much to make that public. But also, it is also something that she knows from what's happened before her, because she's presided over a series of cases, criminal and civil, as you've pointed out, Mary. So the fact that it's mixed cases

in terms of how she knows this is something that cuts in her favor. Just to be clear, that's because the law here is that if a judge is saying something in the course of and as a result of presiding in matters, then the law is

really, really favorable to not recusing. Because during a trial, a judge may say things, may have views about the defendant, about co-defendants, and that's essentially what's happening here. It'll be interesting to see how she deals with it, though. The standard is it would have to reflect such a deep-seated favoritism or antagonism toward the defendant that, you know, there couldn't be a fair trial. And

Or the appearance of it. Right, or the appearance of a fair trial. But that's the standard from the Supreme Court case called Lutecki. And what the team argues is that standard doesn't apply here because she didn't gain this information during judicial proceedings. She gained it from outside. The entire world gained it by watching videos, right, of Gun the Cat Ball. I think another thing, I mean, this doesn't really get...

litigated in the papers. The government does, I think, a really good job of coming back with example after example after example where recusal is denied on facts, you know, the Watergate facts, but other facts that are, you know, egregious than this. The other thing I think that, you know, really stated again in the papers but exists is that...

I think every single judge in the district court for District of Columbia has handled January 6th related cases and many, many, many of them. I have not done a survey to see if every single one has faced an argument like the arguments by those in the that

that are referred to by Trump team here, faced an argument that I shouldn't be really held responsible. It was the former president who asked me to do this. And many of them have made comments almost identical to Judge Chuck and saying, you might have been relying on what the former president said, but you still took this action on your own and rejecting those and many of them making comments that I think even if she were to be recused and some of the judge got the case, they'd be making comments

the same arguments that that judge can't be impartial. So this is what happens when you have anything as sort of dramatic as an insurrection at the U.S. Capitol and... And interconnected. Interconnected. You know what I mean? And

Right. Because it's not like one defendant isn't related to this situation with Donald Trump as the indictment in D.C. alleges. So I predict that Judge Chuckin will deny this and that any, you know, appeals will also be rejected. I love it. Mary, usually not in the prediction mode. I think I'm a bad influence. Sorry.

So why don't we turn to the removal? So I think we've done two hours and on to the third. Jeff Clark has a hearing now. And I say hearing, but Jeff Clark, the accounts are, is not appearing for it. He doesn't have to. But one thing that's hard about that is if you remember Mark Meadows, when he sought his removal, because Mark Meadows has the burden, Mark Meadows testified against

under oath. I'm not sure it went all that well, which may be why Jeff Clark is not doing that. But Jeff Clark is not testifying. And essentially, he has to prove that whatever actions are alleged in the indictment were under color of his former federal office at the Department of Justice. And there's an "and" there, because that's not enough.

And that he has a valid federal defense. Now, he doesn't have to prove it all the way, but it has to be colorable enough for the court to say exactly so that it can be removed. So he had to satisfy both of those. And it's his burden. Without his testifying, it might be a little tricky. One thing he has submitted is

is an affidavit from someone who used to be the Attorney General of the United States a million years ago. I'm going to say a long time ago, but you know what? I'm so old, I'm like, oh, I remember that. Maybe it's not that long ago, but it really was. So it's from Edwin Meese, some may remember, somewhat controversial Attorney General.

And it's somewhat of a weird affidavit because it could have been said by anyone. And it's a little weird because he hasn't been the attorney general in a while. So whatever he's going to say about the department a million years ago and the place to see in years doesn't necessarily apply now. But he basically says that anyone at the department can do any role. Any assistant attorney general, any president appointed Senate confirmed assistant attorney general. They're fungible.

Right. Yeah, they're sort of fungible. And also the president under the unitary executive can ask any of those people to do anything within the law, but can, in other words, if you're assigned to be an environmental lawyer, be

by the attorney general, you can be asked to do something in civil rights or criminal or civil and the same thing for the president. So he's saying they can take on all these different things and Jeff Clark could become the overseer of federal elections. And I'm going to give you my quick read on why I think that both Meadows and Clark have a

I think a pretty good argument on the first prong prerequisite, but not the second prong. The first prong is color of office. You're not saying that it's within the rights of the office to commit a crime. Of course it's not.

But the issue is whether you're doing something under color of that office. And the way I think about it, you know, I used to prosecute corporations and investigate corporations all the time. And employees, their conduct could be imputed to the company if it was within the scope of their employment. And corporations couldn't turn around and say, well, the employee committed a crime. That obviously isn't the scope of their employment because we don't authorize them to commit crimes. I mean, at least most corporations don't.

And so that's just not the way the law works. It's whether the function was within the scope. So for instance, if the person was in charge of overseeing a subsidiary in Thailand, and in course of which they pay a bribe in a violation of the Foreign Corrupt Practices Act prohibiting bribes to obtain contracts, that would be within the scope of their employment. In other words, they took that within the scope.

even though what they then did was illegal. And I think here...

when the whole point of Jeff Clark, for instance, is that he's charged with writing this fake letter saying, we, the Department of Justice, are investigating fraud. Well, that's within the color. Or have uncovered significant evidence of fraud. Oh, yes, you're right. Even worse. You're right. Right. Even worse. So that is within the color of his office. But where I think he loses is prong two. Because I don't see how you have

a colorable or plausible federal defense to that, because that's where the fact that it's criminal becomes something that the acting attorney general said no, the acting deputy attorney said no. And the president can't authorize that. So I think that's prong two is where I see the particular problem. And just so people don't think I'm doom and gloom on Meadows,

The 11th Circuit is still able, if they think that Judge Jones, let's say they agreed with me, they're still able to affirm Judge Jones. They can say we disagree with his ground one, but we don't think that Meadows proved ground two. Like they can affirm on any ground. And they've also asked the question of can a former federal officer even seek removal? I think the better answer there is yes. But they did also ask that question, which was something that...

was never even addressed by Judge Jones. So, Mary, I have a really good question for you. So the court comes out and raises this question of, hey, does the statute even apply to a federal official who's a former, not a current? And the state had not previously argued that because there was reason to think that the statute does apply to former's, not just current.

What would you do in that situation? You know, Fannie Willis changed her position and said on appeal, OK, we agree it does not apply to farmers, but

But would you have done that? Or would you have just taken the hit and said, look, there's an argument, but we think that, as you just said, the better reading is X. I would have done just exactly that. Now, again, I say that without having delved deeply the way I would have if I were the litigator. I mean, I've looked into it. I see that the language potentially is a little bit ambiguous, the language of the statute. But

ultimately concluded that the better argument is that it applies. I don't think I would switch positions. I would stick with that and, you know, give my reasons, but admit, you know, there's ambiguity here. Again, the 11th Circuit can decide whatever it wants, regardless of what the parties argue. It doesn't have to agree with them. But don't you think that's sort of the difference between

the government's role here, that it's a different type of litigant, because I agree with you completely. And this is why I love you and love doing this with you is that

Like, if that's the better argument, that's what you say, even though that's not the best for your case at the moment. It's not like blind loyalty to your client, right, when you represent the government, because you're a repeat litigant in front of the judges. You want the judges to believe that

representing the government, you are going to concede where you need to concede and argue where you think you have the better argument. And the obligation to a client when you don't represent the government, you know, you could view differently, right? Like, hey, there's an argument to be made there. Zealous advocate, you've got to make it. And I will say there were times when I was at the Department of Justice where

as deputy chief of the appellate division at the U.S. Attorney's Office in D.C., where I did think that there was an argument that was a good argument that the defendant was making. And sometimes I worked to resolve a matter, and then we just resolved it sort of outside of the appeal, and the case went away. But other times...

if there were like several issues on appeal and there's only one that I thought we should concede. I remember a time where we conceded it and the court then called for like an amicus to brief that other side because the government was conceding. That happens sometimes in the Supreme Court as well when the United States will concede an argument and the court wants to hear somebody representing that other viewpoint. So that's just an interesting role of the government attorney that is just what I'm

used to and comfortable with. But I do want to go back to one point about Clark, just to make sure people are understanding what

Fannie Willis was arguing in that case about Jeffrey Clark's role, right? We heard what Edwin Meese says, which is, hey, if you're an assistant attorney general, you're fungible. And the president, he can sidestep the attorney general, the deputy attorney general. If he wants to talk directly to you, assistant attorney general, even though you're lower down and ask you to do work for him, he can do that. That's all within his Article II powers.

and so all of this is clearly within color of law. What Fannie Willis had been arguing that led to that response and led to Edwin Meese's declaration was that in neither his role as the environmental or natural resources assistant attorney general or his role as acting assistant attorney general for civil division, neither of those roles had any supervision over election-related cases, and they pointed out

that cases alleging like election fraud and things like that, those were criminal matters that the criminal division and the assistant attorney general for criminal division has authority over and matters related to sort of deprivation of voters' rights. That's a civil rights division issue that civil rights and the assistant attorney general for civil rights involved.

has jurisdiction over. And so it's just outside of his role, either one of his dual AAG hats he was wearing, this was outside of that. So I do think the response, whatever we may think about Edwin Meese as a declarant, the response, there's some legal validity to some of that response. And I do think this makes...

this case more interesting and in some ways, I think more challenging on that first prong than even with respect to Meadows. Although I hear you that you think even with respect to Meadows that maybe the second prong is really the winning prong. So we will see. Mary, I will see you in person.

Later this week when we are in Texas with Chris Hayes. Yes, Texas Tribune Festival. So if you don't have your tickets yet, get them. That's our promo for the day. That's our promo. Okay. And by that point, I have a feeling we'll know more on all of this and be able to cover the latest. Okay. Talk to you soon. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod or you can email us at

at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back later this week with much more.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Cedric Wilson is our audio engineer. Jen Maris Perez is the associate producer. 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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