Deep Dive
Shownotes Transcript
Hi, welcome back to Prosecuting Donald Trump. It's Tuesday, March 26. I'm Andrew Weissman, and I'm here with Mary McCord. Hi, Mary. Good morning, Andrew. Well, I don't know what we're going to talk about today because there's so little that's happened. I think even our listeners will know you're being facetious, but we'll roll with it here.
So here we are the day after a big day for the former president. He got somewhat of a mix of good and bad news. He, of course, was hoping that Judge Mershon in his election interference slash hush money case would dismiss that entire case. That's what I think he was really hoping, or at least put it off for much, much longer than the judge did. And instead, the judge said it's starting April 15th. But at the same time, he was there in court by reports I've read glowering at
the judge and sometimes, frankly, I think at his own attorneys, he got some good news that in his civil fraud case, the appeals court lowered the bond that he would be required to pay in order to stay execution of the judgment. Remember, the judgment's $464 million, and normally you'd have to put up a bond equal to that. But the appeals division said he could put up a bond of $175 million, still a lot of money to most of us,
and gave him 10 days to do it. So we'll talk about those things as well as some other stuff as we get going here. Yeah, we'll have a sort of
at the end sort of what we're keeping an eye out for there are various things in the j6 dc case lots to talk about and again you know it's so interesting because i was reading yesterday and i got up early to read stuff and it's so nice because i could literally tell you what's going on in my head i read this stuff thinking about i wonder what mary's gonna say it is it's so interesting to me because it's great that everyone gets to listen in but like i'm constantly thinking i
I really want to have this conversation. Yeah. And sometimes I'm like, will we disagree on something? I do think about that a lot. We do. We do at the margins. Yeah, we do. A little bit. Exactly. You know, here's the problem. It's not just that a lot of our backgrounds are similar so that we sort of have a similar mindset. But here's the bottom line is we both believe in facts and the rule of law. I think that is the bottom line. Yeah. You funnel toward the same place when that's where you're starting from. Yes. Yeah.
Exactly. So should we start off with the Judge Mershon? Yes. And Judge Mershon is a well-respected trial judge in New York. He has the, whether you call it the hush money case, whether you call it the election interference case, I like to pick some neutral description and then talk about it, which is just, it is the false business records case. It is. And the reason I just go with that...
Those are the charges. And then you can talk about all the aspects of it that we have talked about. So these are these 34 false business record charges. And the issue before Judge Merchan yesterday was that a series of documents to the tune of over 100,000 plus were only turned over within the last month, but they were coming from not
directly from the DA. The DA didn't have them. They were coming from the federal office, the Southern District of New York, a federal prosecutor's office just down the street from the Manhattan District Attorney's office. But one's federal, one's state. And very, very different offices. Historically have clashed, I think, a few times. Absolutely. Well, I think you can add that to any office in the Southern District of New York. Yes.
Yes. It is a very, very good office, but is known for being, what should I say, independent. Yes. That's a nice neutral word. Right. Some people say it doesn't play well with others, but I have to say I've had times where I've had a really great relationship.
relationship and wonderful, wonderful working relationship. I'll mention when I was in the D.C. U.S. Attorney's Office, we had times we had to work cases or did work cases with SDNY. And again, it can go really well, but it's a challenge because they definitely think of themselves and they've got some good reason to say this, that they're some of the prima donnas of the federal prosecution world with some major cases. But of course, you and I came from offices that also
had really major cases. And we were prima donnas too. So there you go. And there's a reason we're raising this as opposed to just gratuitously potentially being viewed as mudslinging. Because the issue for the court was there was this late disclosure and the New York law
requires there to be prompt disclosure of material. But the issue is it's prompt disclosure of the material that you, your office, has possession, custody, or control over. So that if it's another office, like if you were getting this from the Oregon State Office or the D.C. U.S. Attorney's Office,
or from France, that is going to be a separate office. And so the judge was considering, was it fair to consider these two separate offices? Was there any evidence of interaction? Was there any suggestion that the DA got information and then sat on it and didn't turn it over? And then finally, of course, the court had to consider, regardless of fault, just how much time does the defense need because it has this information relatively new? Is there anything really new and different that would require
More time than the 30 days that he had already given. So that was sort of the issue for him. By the way, do you want one anecdote, Mary? Yes, but can I give one recap first before the anecdote? Absolutely. Because I want to make sure we kind of jumped in right at the point of the 100,000 documents being disclosed to Mr. Trump.
A year ago, the DA, Alvin Bragg's office, asked the Southern District of New York for all the documents and grand jury materials and things that were relevant to their prosecution of Michael Cohen. The DA got a bunch of documents. The DA gave those documents to Donald Trump. And that's where things sat. And this becomes really material to Judge Marchand's ruling, I think. That's where things that sat until mid to late January when Donald Trump went ahead and requested from the Southern District of New York
a whole bunch of materials. And lo and behold, wow, there were more materials than what the Southern District had given to Alvin Bragg a year ago. And that's what has come in here late in the day. And that is what caused Mr. Trump's attorneys to say this whole case should be dismissed because this is Alvin Bragg's fault that we didn't have these documents. That's what brings us up to where we were yesterday. And the judge was having none of it. OK, anecdote. And Mary, just to underscore your point, which is that
So people focus on one thing you said, which is so important, which is that the defense didn't issue their subpoena until January of this year. Yeah. And I think like January 18th, it wasn't even the beginning of January, right? Exactly. With a trial date in March.
Yeah. So the defense could have obviously taken action months and months and months and months before. So that became a very key focus of why didn't the defense do something sooner? And it's, you know, this is basically just to put it in New York terms.
Yes. Which is, hey, I subpoenaed them late. Now I want more time to prepare. And this, I think, feeds into something that listeners have been writing to us about, which is that how come Donald Trump keeps getting away with delay, delay, delay in every case?
And, you know, it's hard not to look at the timing of that subpoena and not just think that was another way to just delay things. He could have done that. Strategic. It was strategic. Right? Yeah. And sure enough, as soon as the documents come rolling in, and mind you, the SDNY did have some correspondence with Mr. Trump's team asking for more time to put documents together instead.
Mr. Trump did not go to Judge Mershon and say, hey, we're having trouble here getting documents. They just said, yes, OK, take your time or something along those lines. And sure enough, then the documents start rolling in really right on almost on the eve of the
of the trial date, the original March trial date. And so when you look at it through that frame of every single case, Mr. Trump and his attorneys trying to delay, and I think this is what Judge Marchand was thinking when he had the hearing yesterday, this seemed like another effort to manufacture a reason and put the judge in a box where he had to delay things. And he did give them the extra 30 days, but that's it. Yeah.
Yeah. By the way, technically, it's really 20 days. He gave them 30 days. Right. Because the trial was supposed to have started yesterday, Monday, the 25th, and his order was 30 days from the date of the order. But that was 10 days ago. So he stuck to his guns. The bottom line is he stuck to his guns that he said, you're getting essentially this 20 day delay from the trial date, which is April 15th. And he didn't give them a day more.
Just to jump to the bottom line is he said, look, there's no one's fault. It is not of any fault here. It's the defense should have subpoenaed these earlier. The D.A. had no fault whatsoever and is operating completely independently of the Southern District. And on the big picture,
We're talking about a few hundred documents of what is relevant and new, and the defense just didn't do a good job of articulating at all to the court what was so important about those documents that now require so much time to prepare. I mean, there was nothing about those documents, in fact, most of the documents, at least
at least from the discussion, we haven't seen them yet, appeared to be Mueller investigation documents because the Mueller investigation, we obviously investigated all sorts of things. And in fact, the Cohen case started in the Mueller investigation, as we've talked about.
But that's something that obviously the defense could have done a lot earlier. But I wanted to give you a quick anecdote. I have two acronyms, by the way. I was going to say that first with respect to the people who email, it's basically versions of the acronym or the three letters WTF. Yes. About DJT. That's right. So you've got DJT and WTF.
And now I'm going to tell you my anecdote, which may be OBE. Okay. Overtaken by events. Right. Which is, by the way, this is like I'm now fully speaking Washington. Yes. When I got to Washington, like everything was acronyms. Yes. And OBE is one of my favorites, but sometimes people don't know what I'm talking about.
Well, OBE is so great because you have so many issues before you when you're in government and you had such a high level pressured position and there's so much on your desk. As to do. And there's so much that you have to deal with. But there's other stuff which you think, you know, this isn't really so pressing. And I think if it sits on my desk, it might become OBE. Exactly. Meaning OBE.
overtaken by events. That's right. I didn't have to deal with that anymore. And so when I was getting trained, when I first got to the FBI and someone was training me at the end of the week, they went on and on about, oh, we're going to go to the DNI and we're going to talk to the DERNSA. And then it was just like DHS and just went on and on and on and said, but first we're going to go to ABP. And I was like,
okay, you know, I thought I was doing really well. I understood almost everything. I understand we're going to the Department of Homeland Security. We're going to talk to the Office of the General Counsel. But I think I got everything. But what is this ABP? And the person who was training me goes, au bon pain? Oh.
You're going to go get lunch. Okay. There you go. I love it. I was just like, really? I was wondering what that one was. Okay. Yeah. That wasn't even my anecdote, but I'm going to say, like, how many anecdotes? This is like... Yeah, exactly. Oh, by the way, I do have one funny story. A student came up to me yesterday in class and says that she was at Trader Joe's and somebody at the checkout counter said, oh, you're at NYU. And then said, you must know me because I teach there. And then...
he said, please tell him I love the podcast and don't this. You're going to hate this. And our producers are probably going to hate this. Don't stop telling anecdotes. I'm not surprised. But no, that's just so funny because I'd like I could just imagine our producers are going to be like, oh, my God, did that person have to really say that? And they're probably going to think I'm making this up as just, you know, encouragement for, you know, not keeping on more stories. Yeah. So
Big picture, Judge Mershon is excellent. He is no nonsense. I thought that one of Trump's counsel, the one who made the oral argument, lost a ton of credibility. The judge came so close to saying either you're lying or you are acting in bad faith, just said you're casting aspersions on the office and on me and you don't have any facts or law to support it. At some point said you have no case to cite.
It's the kind of thing, I mean, this is- It's remarkable, actually, yeah. You or I, I would be devastated if the judge said that about me. Oh, yes. And I would be apologizing profusely because just to remind people, when you're a lawyer for either, anybody, for a plaintiff or a defendant, whether it's for the government, for a defendant, you are first and foremost an officer of the court. That's right. So, of course, you have to zealously advocate for your client, but within those boundaries,
That's right. First, you are not a hired gun. You're retained by your client and you have to say no and push back when your client wants you to do something or take a position that is not consistent with that role. And you really saw that in court yesterday. Basically, the judge said you had alleged a lot of things in your motions that you haven't been able to substantiate. And I'm denying them.
OK, shall we take a quick break here? And when we come back, we'll turn to the appellate division's decision to lower the bond. Perfect. As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall.
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Okay, welcome back. Mary, the other big news was that Donald Trump, even though it went from, it still is required that he pay $175 million, that obviously was a big reprieve because the sort of Damocles of the $450 million payment in order to stay enforcement of the judgment was for yesterday. I mean, that was the day he was going to have to put it up. So...
At the last minute, as a deus ex machina, the appellate division, the next level of the New York courts above the trial court, said, no, we're lowering that to about $175 million. Two quick notes on that. They did say to have that $175 million, you have to file your appeal on the following schedule.
One note that I think people may not be aware of is normally in New York, the appeals process is very long. Your main brief does not have to go in for nine months. That's ridiculous.
Right. It's good that you're in D.C., Mary. So, yes, it is ridiculous. But one of the things they did is if you want to pay this lower amount, your brief is due July 8th. Right. Right. So that may seem like a long time for people, but for everyone in the know in New York, they're like, oh, they're going to hear this in September.
So that's very rapid. That kind of goes to the delay point we were just talking about, right? I'm sure Mr. Trump would want to just delay, delay, delay this appeal as long as possible. The longer he can delay it, the longer he has where he's not having to pay this judgment, this
half billion dollar judgment. And the court said, yeah, we're lowering the amount that you have to pay to stay the execution of the judgment. But you got to brief it, you know, at least on what they consider a rapid schedule. I still look at July and I'm like, that's a lot of months to get your brief together. But OK, if that's fast in New York, then fine. But OK,
But also comparatively, when people are thinking about treating likes alike, the benchmark is nine months. So it is, in fact, saying if this relief is contingent on going faster. They also did not stay the appointment of two independent monitors, the one that was in place already that is going to continue. And then Judge Nkorn had imposed a
a second compliance monitor. And the decision yesterday pointedly said those two are going to still be there. So you can understand what they're saying, which is we do not trust what is going on for you to just do the right thing, Trump organization and players. We are going to make sure
that during this appeals process, there is somebody counting all the beans as to what's happening. So they did take steps to make sure that there wasn't going to be ongoing fraud and not staying those provisions of the Judge Ngoron decision. Yeah. And one of those monitors has already been in existence, as you indicated. That's Judge Barbara Jones, somebody who's, you know, looking at records,
able to raise red flags and do exactly what she's ordered to do, which is monitor what's happening within the company to prevent any of the types of frauds and overvaluing and things like that that the company was found liable for by Judge N'Goran after a multi-week trial. There were a couple of other things that the appellate division did stay, though, in addition to
changing the amount of the bond, it did stay some of the bans on Mr. Trump or the New York corporation doing business with any New York financial institutions such as applying for loans and also stayed the ban on Donald Trump Jr. and Eric Trump from serving as officers or directors for any New York corporation.
So those are things I guess I'm not too surprised about because what they're trying to do is kind of keep things in a status quo while the appeal is pending. But as you said, make sure there's independent monitoring while the appeal is pending. So I think the question now and partly the reason this is so significant and you said it, Andrew, was yesterday was the last day for him to post a bond that would stay the enforcement of the judgment.
And lots of people are talking about what will the Attorney General Letitia James do if Mr. Trump is unable to post that bond? Will she immediately start taking properties and selling properties? Will she start by going for cash that he may have on hand in banks? I know there was, you know, I think a lot of movement around his properties in Bedford and other places. Right. And people speculating, wow, where where will she go first? What will she take first?
And now he has 10 days to put up $175 million and then stay that type of enforcement. The other thing that I think, well, two points. One is, where did they get this number, 175? Is that because those judges are already thinking that maybe this $464 million in disgorgement is too much and that it's likely at the end of the appeal they will bring that number down? Did they just simply think,
gosh, that's just so much money for somebody put up to exercise a right to appeal that we should make it more realistic. What was going on here? And they don't give us any answers to that in their order. It's two pages, but really the entire order is just one paragraph on the second page. And it gives us no insight other than our own speculation into how they came up with $175 million. So what's your speculation, Andrew? So my big picture on this issue
I know that it's typical for the appellate division to issue these kinds of orders without a lot of, with no explanation. I was going to say without a lot of explanation. With none. There was no explanation. This is like that, it's like, shut up, she explained. Right. You know, there's no reasoning. So the reason that is so pernicious at this time is Donald Trump is attacking the courts because that's a place where he is being held to account. Right.
And so there is a huge amount of judicial attacks of engaging in trying to foment and create cynicism about judges on the far right. By the same token, people who are listening to this podcast could quite rightly be upset saying, is he getting disproportionate justice?
Why is this being lowered? Would it be lowered for anyone else if there was a judgment of $450 million, and there still is,
Why is it that he only has to post a fraction of that, about a third and not the full amount? Is that really normal? Or is it a sign of his being treated different because he's powerful, because he engages in fear-mongering, because he's a rich white person? Whatever the reason is, it leads to that cynicism of, as I said, the sort of with various acronyms and the kinds of mail that we get. And it's a totally understandable people saying,
I am entitled in this country that's supposed to be about the rule of law to know that like people are being treated alike. And if you're going to lower this amount, it's incumbent on you to say why. And then we may disagree with the reasons, but at least we have an understanding. For instance, Mary, if they had said, you know what, I think a judge in Goran may have gotten the disgorgement figure wrong. What he did with respect to the post office in D.C. seems too attenuated. Or
Or whatever the argument is, then it's saying, okay, we actually are focusing on the merits that we will ultimately decide. And that is the reason that we're requiring less now, because we're obviously the amount of money that we're acquiring for a bond is not intended to drive someone out of business. It's there to make sure that the plaintiff is whole.
at the end of the day. But when you don't have that reasoning, it is so undermining of the judicial process right now. So I'm not saying that the appellate division
judges acted in bad faith in any way or they did anything wrong. I just think whatever their normal practice is, it is really useful for the public to know why they're doing what they're doing. And just a final thought is it reminds me so much when I was on the Mueller investigation watching judges like Amy Berman Jackson and Beryl Howell, judges you know very well, Mary, because they both were in D.C.,
They had so many cases that we were doing, and they were so good at each court appearance talking about why are we here? What's going on? What is the defendant arguing? What is the government arguing? And then giving very fulsome descriptions of why they were doing what they were doing. It was such a good model for the public to see. So I...
I would have pushed back on one point. So the difference there is you're talking about district court judges who are explaining sort of their rulings and why they're doing what they're doing. Here, I think the appellate division could be thinking, look, we don't want to send a message we have prejudged this case, right? They haven't even had the briefing yet. They haven't even had
the merits. And so I think you're right that they could say a little bit more. And sometimes when courts of appeals do rule on motions to stay enforcement of a judgment or in the area I'm most familiar with, sometimes a defendant who has been convicted by a jury and sentenced by the judge to actual incarceration will appeal and ask for a stay of having to actually report to prison.
And we'll have to argue that there's a substantial likelihood I'm going to win my appeal. So you shouldn't make me to go to prison now because I might win my appeal and then I would have gone to prison, you know, for no reason. And judges there will sometimes, you know, in ruling on that stay, they'll have to grapple with, have you shown a likelihood of success on the merits of your appeal so that we would grant this stay? And here, that's what I think they're probably thinking about too, because that's the standard for things like a stay.
is, you know, are we going to reduce this because we think there's a substantial likelihood it may get reduced in the future? But I'm thinking the judges don't want to signal we've already made our decision. Four and a sixty four million is not going to be the number. It's going to be some lesser number. So I think they probably I don't know. I think they're probably trying to walk a thin line there.
Yeah, but my view on that is if they did say, you know, we're not going to prejudge and we're not trying to prejudge, then it's even more incumbent to know why did you lower the amount? Yeah. I was trying to think of a neutral reason why they could have gotten to that. And if they, I agree with you, Mary, it would be totally legitimate for them to say, you know, we're not going to deal with that now. We're going to really wait to hear that. But then they have to come up with a reason why they're doing it. Yeah. Yeah.
And it could be we know that he has substantial number of properties and we're not concerned that he will have, you know, sold every single thing he owns by the time this case gets decided.
Good luck. But speaking of that, OK, speaking of selling everything he owns to get the money, this hundred and seventy five million dollars. I think that, you know, there's been a lot of speculation that even before it was lowered to that, that this merger between Trump Social and essentially a shell company and the initial public offering yesterday of this new Trump Social company underwent
under the letters DJT, going public would bring a cash infusion to Mr. Trump, who holds, I believe, 60 percent, I think, of the shares in the new company, and that that cash infusion might allow him to be able to post even the bigger bond that was imposed before the court lowered it. But there are some restrictions on that. I think it's
bears us taking a few moments to talk about those restrictions. He's not supposed to be able to sell anything for six months, isn't that right? It is right that there's normally a lockup period, but you can get a waiver from the board. And of course, the board are family and friends. So the idea would be that he would get that waiver. He also could find somebody who was willing to essentially buy those shares sort of on a contingent basis and
and sort of take the bet as to when they become marketable and are released from the lockup that the stock will be doing better
And of course, what you're buying there, if you are that outside buyer, is you're buying influence with somebody who could become the president again. And so there are various ways that that kind of nefarious influence can happen. And just to be clear, leaving aside this entire bond issue, as many people have noted, the valuation of this merger is off the charts. Yes. And not... There's something...
For a company that has lost millions and millions of dollars, Truth Social. And as Stephanie Ruhl has said, she said, look, it's got one asset, which is his posts. It's just his posts are the one asset. So the valuation's really...
It does suggest people who are propping it up as an influence mechanism. Just to be clear, I'm saying it appears that way because if you compare it to
Yes.
undue influence. That's right. And it's not like we're dealing with somebody who isn't concerned about money and isn't willing to change his views based on money, C-E-G, TikTok. Yes, exactly. So that's a very scary proposition in terms of we're not dealing with Mary McCord, who's running for office, who you'd say, oh, well, this person is acting out of principle. And you know what? This isn't like that old joke.
of, you know, now we're just talking about the price. You know, there's the famous George Bernard Shaw joke, which I'm not going to tell because I've been cut off at my anecdotes. I'm just going to allude to it. So now people have to go do their own Googling. Exactly.
That's what I've been reduced to because of that. You know, yeah. And, you know, the muzzle that's been placed on me. Yeah, yeah. In all seriousness, what you're raising, though, I mean, is something that should concern everybody, right? Like the way Mr. Trump operates on a transactional basis, right? You scratch my back, I scratch yours. You can look at his whole history. He's got somebody who is campaigning to be the president of the United States. I mean, frankly, he's doing not for money, but a similar thing right now.
by calling the people who've been convicted and sentenced for the attack on January 6th hostages. He's pandering, right, to them by offering them the reward of, I will pardon you if I become president, to try to use that to win re-election. It's that transactional nature, and the fear here is that where this money comes from could be a big, essentially, I owe you, and if I get into the presidency, I will pay you back. More acronyms, at least. Right.
I think most people know that one. Yes. Okay. So, okay. Should we take a break? Yeah, let's take a break. We'll come right back and talk about the Supreme Court.
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All right. Welcome back. So I want to talk this morning, Andrew. I basically woke up to a new piece in The Atlantic by you and Ryan Goodman. I know one of your fellow professors at NYU and also co-editor of the online media outlet Just Security. You guys wrote somewhat critically about the Supreme Court's behavior when it comes to Donald Trump's appeal to
of the immunity decision in the January 6th related case. And I think it's worth talking about. What's the point the two of you were trying to make there?
Well, I just want to note that we have another disagreement because I would quibble with the word somewhat. Oh, yeah, that's true. I was being gentle. Yes. I know. So what we were focusing on is the presidential immunity decision that's going to be heard on April 25th by the Supreme Court. And that's related to the D.C. federal case. And because of that decision, that decision
That case, which was going to go to trial on March 4th, has been stayed and it will not be
until the Supreme Court says it can go forward. And we don't know when that will be. Our piece was not about presidential immunity per se. It was not about the substance. It was about the scheduling. And it basically said that the Supreme Court has been complicit with Donald Trump in delaying this case so that it truly risks it never seeing the light of day before the general election. And it
It is addressing a couple of things. One, it is taking on people like Jack Goldsmith at Harvard who have said, oh, the government has no interest, no legitimate interest in seeking a prompt trial. And that's political, small P, or maybe even big P, political. And it violates DOJ rules not to take actions that are political. And it basically says that is just...
This is the legal term, poppycock, or as our current president would say, malarkey. And saying that there is a legitimate interest that the government has in speedy trials, it cites just Supreme Court cases.
on that very issue, that the general deterrence value, the specific deterrence value, when the defendant is saying this is all a witch hunt and the judicial system and the prosecutorial system is all just, is a fanciful witch hunt, there's even more interest that the government has to say, fine, let's give you your day in court and we're happy to take on the burden. So it talks about all the legitimate interests that the government has, that the United States has in seeking that prompt deterrence.
And just to break in real, you know, way back when we started doing this podcast and some of their early episodes, we talked about the public's interest in a speedy trial because people tend to think it's only a defendant's interest. But the Supreme Court's been clear. There is also a public interest in seeing that
justice is done and that cases get to trial and don't get delayed and delayed and delayed. And I thought your article did a really nice job in sort of highlighting those statements by the Supreme Court, including by Justice Alito and others, you know, time and again. This is not something we're making up because we'd like to see this case go to trial before the election. Right. And it really is critical of the sort of
People who say that Jack Smith is somehow doing something improper or wrong saying that itself is political. That is just a wrong view of the law.
It is an unfair criticism. And it also talks about somebody who is saying that they are immune. Their only interest on that issue is to have it decided as quickly as possible. We think we've talked about this, which is if you're just looking at the issue of immunity, the courts allow that to be heard quickly. They allow what, Mary, you've said, interlocutory appeals. Nobody should suffer the opprobrium of being...
being charged when they're immune. Donald Trump's own lawyers have talked about how the gag order in the D.C. case, which is still in effect, is hurting him and preventing him from running from office effectively. Well, all of that is a reason why he has an interest on that issue and having it decided quickly. Of course, his real interest has never gone to trial, but that's not an interest the Supreme Court should be validating. That's not also what's before them.
And so one of the suggestions we have, and the reason we wrote this is so that we can sort of arm the justices who are fair-minded. Yes. Just focus on the way I said that. Yes, absolutely. Arm the justices who are fair-minded with the fact that it is appropriate for DOJ to be seeking a fast trial and also to ask questions of Trump's counsel at the oral argument about, tell me,
right now, what is your interest in not having this decision done properly? Because there is no answer to that. And so, you know, Mary, I know, and I'm going to turn this back to you. I know when we were reading the briefs, I mean, it is, it is, I'm not faulting Donald Trump for this, his counsel for this, because this is the right strategy, which is delay, delay, delay. But that brief is just trying to find a million ways to slow this down. Right.
That's right. I mean, a lot of the substantive arguments are really just a rehash of the substantive arguments about immunity, separation of powers, et cetera, that were made before Judge Chuck and before the D.C. Circuit. But the last part of the brief is all about, OK, Supreme Court, here's what you should do. First and foremost, you should just determine that
Mr. Trump has absolute immunity from prosecution for anything within the scope of his official acts and that everything he did here was within the scope of the outer perimeter of his official acts. And so this case is over. I mean, that's their first and foremost. But they seem to realize that.
that they better have some fallback positions. So they have several fallback positions. And, you know, these are fallback positions that would, you know, result in more delay. One is that if you agree, Supreme Court, that there is immunity for things done within the outer perimeter of Mr. Trump's official acts, but you don't want to decide in the first instance that
whether everything alleged in the indictment was part of his official acts, then you need to send this back down to the district court to resolve that. And remember, we talked about this before. If the district court then has to have a set of hearings and go through whether all the different alleged
Acts within the indictment. Remember, it's a multi-part scheme to essentially override the vote in 2020 that involved pressure on state legislators, pressure on the Department of Justice, pressure on Vice President Pence, etc., the fraudulent elector scheme, all those things.
Send that all back. Judge Shutkin has to go through, make findings and all that. If she ruled against him then, guess what they would do? They would run right up and appeal that and try to get to the Supreme Court again. So you see here the recipe for delay, delay, delay. Right. And they have two additional somewhat fallbacks. One is that, you know, if you do adopt something called qualified immunity...
And we don't have time to totally get into qualified immunity today, but this is a well-known immunity that government officials have so that they are not held liable for things that they would not have reason to know are clearly established violations of constitutional law. And what Mr. Trump's attorneys are saying here, even if there's some sort of qualified immunity, you should look very expansively
at the discretion and authority of a president when they are engaging in their official acts, you should interpret that very, very expansively. And unless there's essentially something out there that's explicitly said to Mr. Trump, you can't do these things, it's clearly established, then he should have qualified immunity. Yeah, because, Mary, I think it's, I just think it would be so unfair to expect that Donald Trump should understand that
overthrowing the counting of votes in a legitimate election is how is he to know that that's something that is actually prohibited under the law? I mean, it just would be so unfair to really think that, you know, until no one had told him that he couldn't steal an election. So how is he supposed to know? And I just think that means that it's qualified immunity should apply because it just, you know, our law really requires notice and
You know, there's like a one-bite rule. Never mind that no other president has tried to do this. So where would we get that clearly established law from? I mean, just to be, I just want to make sure everyone understands the extent to which our legal system has become inured to the most outlandish arguments imaginable. The person who is running for president is making these arguments. I can kill people and unless I'm impeached for it,
There's no remedy for it. I mean, this isn't sort of, oh, I emulate and I have some abstract fascination with dictators across the world. These are arguments being made in the D.C. Circuit. They are now being made in the Supreme Court of the United States. This isn't fanciful. This isn't people projecting what could happen in the next Trump 2.0 presidency. This is what is happening now.
Now, inside of a courtroom where this is why when Judge Pan and the D.C. Circuit said, so your position is that you can order SEAL Team 6 to kill someone, that's okay. A political opponent. Yes. That'd be okay. That is happening now. Right, right.
And to just take fanciful arguments one step further, I actually think their fourth argument was kind of the most one of the most fanciful of all, which is that what they're trying to do here in their opening brief is respond to things that they think Jack Smith is going to say in his brief. And they're kind of trying to get ahead of it. And one of the things that Jack Smith said, even in the papers on the motion for a stay in the Supreme Court and et cetera, one of the things that Jack Smith said and we've talked about before is, look,
You don't necessarily have to take up this case in order to determine all of the meets and bounds of when a president may or may not be able to be entitled to immunity for official acts. You could also just decide here if you disagree that he's just not absolutely immune for criminal acts.
You could just say no matter what the other issues might be that may come up at some point in the future, you certainly aren't immune from trying essentially to stay in power by overruling the will of the voters. Like that's an issue that you could you know, we can all agree is not within your official acts.
That's essentially, in not so many, not those same words, what Jack Smith was suggesting in his motions. And so the response to that by Mr. Trump is, this supposedly narrow exception would rapidly swallow the rule because virtually everything that other first-term presidents do, whether alleged criminal or not, is at least partly, in some way, motivated by the desire to remain in office. So in other words...
everyone, every president, first term, everything they do is trying to remain in office. So that exception that's like, whatever you don't, you know, whatever you do, you can say there's no immunity here, that that would essentially just bar every president from taking any action because they could be accused of trying to stay in power. I think that's
And I'm surprised to even see it, frankly, in this brief, to your point of these things are actually happening in Supreme Court briefs that are really going to be heard by the court in a month. And that's where, just to be clear for our listeners, you can find all of this online. You can go to the Supreme Court website.
and read this in black and white. This isn't just Mary and me sending off alarm bells that is just in our heads. You can read in black and white how these arguments and statements are being made. And I just think it's so important to understand that this is somebody who is espousing these views of the presidency that are antithetical to, I think, how people should...
should be and do think about the rule of law and checks and balances in this country. And it's there in black and white for everyone to see about the person who is running for office so you can make a decision about that person. Yeah, absolutely. Mary,
So great to see you. There is so much coming up. I mean, so, you know, April 15th, we have the start of the first criminal trial against a former president of the United States. April 25th, we'll have the Supreme Court argument. And there'll be lots to talk about in between that.
In advance of and during the New York trial, we're going to have more episodes to try and get people into the details and to talk about what to expect coming up, but also to help people understand and give you our insights into what's going on in court. So there's tons to look forward to. There sure is. And we'll be here doing our very best.
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. This show is produced by the wonderful Vicky Virgulina. Our associate producer is Jamaris Perez. Katherine Anderson and Bob Mallory are our audio engineers. 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 for content strategy at MSNBC.
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Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.