Former President Trump was back in a New York courtroom on Monday, as Judge Merchan set a mid-April trial date for the hush money case against him brought by Manhattan District Attorney Alvin Bragg. Veteran prosecutors Andrew Weissmann and Mary McCord set expectations as the countdown begins to jury selection. Then, they turn to the appeals court decision, where Trump’s bond payment was reduced to $175 million in the New York civil fraud case. Lastly, Andrew and Mary survey what to keep an eye on at the Supreme Court when it comes to his appeal on presidential immunity.
More from Andrew on delays at the Supreme Court in The Atlantic: The Supreme Court Is Shaming Itself
Note: This is a rough transcript — please excuse any typos.
Andrew Weissmann: Hi, welcome back to Prosecuting Donald Trump. It’s Tuesday, March 26. I’m Andrew Weissmann. And I’m here with Mary McCord.
Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: Well, I don’t know what we’re going to talk about today, because there’s so little that’s happened.
Mary McCord: 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 Merchan in his election interference/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.
Andrew Weissmann: Yeah. We’ll have at the end sort of what we’re keeping an eye out for the various things in the J6 DC case, lots to talk about. And again, 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 going to say.
It’s so interesting to me because it’s great that everyone gets to listen in, but I’m constantly thinking I really want to have this conversation.
Mary McCord: Yeah, and sometimes I’m, like, will we disagree on something? I do think about that a lot.
Andrew Weissmann: We do.
Mary McCord: We do at the margins, yeah, we do.
Andrew Weissmann: A little bit, exactly. 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.
Mary McCord: I think that is the bottom line, yeah. You funnel toward the same place when that’s where you’re starting from, yes.
Andrew Weissmann: Exactly. So, should we start off with Judge Merchan?
Mary McCord: Yes.
Andrew Weissmann: So, Judge Merchan 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.
Mary McCord: It is.
Andrew Weissmann: 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 a hundred thousand plus were only turned over within the last month. But they were coming from not directly from the D.A.
The D.A. 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 state —
Mary McCord: Oh yeah.
Andrew Weissmann: — and very different offices.
Mary McCord: Historically have clashed, I think, a few times.
Andrew Weissmann: Absolutely. Well, I think you can add that to any office in the Southern District of New York. It is a very good office, but is known for being, what should I say, independent.
Mary McCord: Yes. That’s a nice neutral word.
Andrew Weissmann: Right. Some people say doesn’t play well with others, but I have to say, I’ve had times where I’ve had a really great relationship and wonderful working relationship.
Mary McCord: 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.
Andrew Weissmann: 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 its prompt disclosure of the material that you, your office has possession, custody and 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.
Mary McCord. Yep.
Andrew Weissman: 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 D.A. got information and then sat on it and didn’t turn it over?
Mary McCord: Right.
Andrew Weissman: 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?
Mary McCord: Yes. But can I give one recap first before the anecdote?
Andrew Weissmann: Absolutely.
Mary McCord: Because I want to make sure we kind of jumped in right at the point of the hundred thousand documents being disclosed to Mr. Trump.
A year ago, the D.A., 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 D.A. got a bunch of documents. The D.A. gave those documents to Donald Trump and that’s where things sat.
And this becomes really material to Judge Merchan’s ruling, I think. That’s where things 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.
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.
Andrew Weissman: Right.
Mary McCord: That’s what brings us up to where we were yesterday. And the judge was having none of it. Okay, anecdote.
Andrew Weissmann: And Mary, just to underscore your point so that 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.
Mary McCord: Yeah, and I think like January 18th. It wasn’t even the beginning of January, right?
Andrew Weissmann: Exactly.
Mary McCord: With a trial date in March.
Andrew Weissmann: 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. This is basically, just to put it in New York terms, chutzpah.
Mary McCord: Yes.
Andrew Weissmann: Which is, hey, I subpoenaed them late, now I want more time to prepare.
Mary McCord: 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 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.
Andrew Weissmann: It was strategic.
Mary McCord: Right?
Andrew Weissmann: Yeah.
Mary McCord: 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. And still, Mr. Trump did not go to Judge Merchan and say, hey, we’re having trouble here getting documents. They just said, yes, okay. 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 trial date, the original March trial date. 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 Merchan 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.
Andrew Weissmann: Yeah. By the way, technically, it’s really 20 days. He gave them 30 days.
Mary McCord: From the trial date, right.
Andrew Weissmann: 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.
Mary McCord: Yes.
Andrew Weissmann: 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. If any fault here, 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 requires so much time to prepare.
Mary McCord: Right.
Andrew Weissmann: I mean, there was nothing about those documents. In fact, most of the documents, at least from the discussion, we haven’t seen them yet, appeared to be Mueller investigation documents because —
Mary McCord: It sounded like it, yes.
Andrew Weissmann: — the Mueller investigation, we obviously investigated all sorts of things. And in fact, the Cohen case started in the Mueller investigation —
Mary McCord: Right.
Andrew Weissman: — as we’ve talked about. But that’s something that, obviously, the defense could’ve 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 —
Mary McCord: Yes.
Andrew Weissman: — about DJT.
Mary McCord: That’s right.
Andrew Weissmann: So you got DJT and WTF. And now I’m going to tell you my anecdote, which may be OBE.
Mary McCord: Okay, overtaken by events.
Andrew Weissmann: Right. Which is, by the way, this is like I’m now fully speaking Washington.
Mary McCord: Yes.
Andrew Weissman: When I got to Washington, like everything was acronyms.
Mary McCord: Yes. And OBE is one of my favorites, but sometimes people don’t know what I’m talking about.
Andrew Weissmann: 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.
Mary McCord: As did you.
Andrew Weissmann: And there’s so much that you have to deal with. But there’s other stuff which you think, this isn’t really so pressing. And I think if it sits on my desk, it might become OBE.
Mary McCord: Exactly.
Andrew Weissmann: Meaning overtaken by events.
Mary McCord: That’s right.
Andrew Weissmann: And I didn’t have to see it.
Mary McCord: Oops, don’t have to deal with that anymore.
Andrew Weissmann: Right. 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 DIRNSA and then it was just like the DHS and it just went on and on and on. And said, but first we’re going to go to ABP.
And I was like, okay, 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 is training me goes, OBAMPA?
Mary McCord: You’re going to go and get lunch, okay. There you go. I love it.
Andrew Weissmann: I was just like, really?
Mary McCord: I was wondering what that one was, okay.
Andrew Weissmann: Yeah. That wasn’t even my anecdote.
Mary McCord: Good.
Andrew Weissmann: But I’m going to say, like, how many anecdote, this is like —
Mary McCord: Yeah, exactly.
Andrew Weissmann: 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, you’re going to hate this, and our producers are probably going to hate this, don’t stop telling anecdotes.
Mary McCord: Yeah, I’m not surprised.
Andrew Weissmann: But no, that’s just so funny because 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 encouragement for not keeping on focus.
Mary McCord: More stories.
Andrew Weissmann: Yeah. So big picture, Judge Merchan is excellent. He has 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 that you’re casting aspersions on the office and on me and you don’t have any facts or law.
Mary McCord: Right.
Andrew Weissman: To support it, at some point said, you have no case to cite. It’s the kind of thing.
Mary McCord: It’s remarkable actually, yeah.
Andrew Weissmann: You or I, I would be devastated if the judge said that about me.
Mary McCord: Oh, yes.
Andrew Weissmann: 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.
Mary McCord: That’s right.
Andrew Weissmann: So, of course, you have to zealously advocate for your client, but within those bounds.
Mary McCord: That’s right.
Andrew Weissmann: 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.
Mary McCord: Yeah. 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.
Okay, so we take a quick break here. And when we come back, we’ll turn to the appellate division’s decision to lower the bond.
Andrew Weissmann: Perfect.
(ADVERTISEMENT)
Andrew Weissmann: Okay. Welcome back.
Mary, the other big news was that Donald Trump, 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.
Mary McCord: Right.
Andrew Weissmann: 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.
Mary McCord: That’s ridiculous.
Andrew Weissmann: Right. It’s good that you’re in D.C., Mary.
Mary McCord: Yeah.
Andrew Weissmann: 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.
Mary McCord: Right, right.
Andrew Weissmann: 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.
Mary McCord: 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.
Andrew Weissmann: Exactly.
Mary McCord: 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, 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 okay, if that’s fast in New York, then fine.
Andrew Weissmann: But also comparatively, when people are thinking about treating likes alike, the benchmark is nine months.
Mary McCord: Yeah.
Andrew Weissmann: So it is, in fact, saying 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 Engoron had imposed 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.
Mary McCord: Yep.
Andrew Weissmann: 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 Engoron decision.
Mary McCord: Yeah. And one of those monitors has already been in existence, as you indicated, that’s Judge Barbara Jones. Somebody who’s 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 Engoron 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.
Andrew Weissmann: Yeah.
Mary McCord: 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 were 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, I think, a lot of movement around his properties in Bedford and other places, right? And people speculating, wow, 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.
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?
Andrew Weissmann: So my big picture on this is I know that it’s typical for the appellate division to issue these kinds of orders with no explanation. I was going to say without a lot of explanation.
Mary McCord: Yeah, with none.
Andrew Weissmann: There was no explanation. It’s like shut up, she explained.
Mary McCord: Right.
Andrew Weissmann: 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. 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 with various acronyms and the kinds of mail that we get in 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 that Judge Engoron may have gotten the disgorgement figure wrong. What he did with respect to the post office in D.C. seems too attenuated 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 obviously the amount of money that we’re requiring 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 whether 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?
Mary McCord: Right.
Andrew Weissmann: 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.
Mary McCord: So 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 will 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 for no reason.
And judges there will sometimes, 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 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, 464 million is not going to be the number. It’s going to be some lesser number. So I don’t know. I think they’re probably trying to walk a thin line there.
Andrew Weissmann: Yeah. But my view on that is if they did say, 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?
Mary McCord: Yep.
Andrew Weissmann: I was trying to think of a neutral reason why they could have gotten to that. And I agree with you, Mary, it would be totally legitimate for them to say, 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.
Mary McCord: Yeah. And it could be we know that he has substantial number of properties and we’re not concerned that he will have sold every single thing he owns by the time this case gets decided.
Andrew Weissmann: Yeah, good luck. Uh-huh.
Mary McCord: But speaking of that, okay.
Andrew Weissmann: Mm-hm.
Mary McCord: Speaking of selling everything he owns to get the money, this $175 million, I think that there’s been a lot of speculation that even before it was lowered to that, that this merger between Trump’s social and essentially a shell company and the initial public offering yesterday of this new Trump social company under the letters D.J.T. 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 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?
Andrew Weissmann: It is right that there is 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 is willing to essentially buy those shares, sort of on a contingent basis 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.
Mary McCord: Yes. For a company that has lost millions and millions of dollars, Truth Social.
Andrew Weissmann: And as Stephanie Ruhle has said, she said, look, it’s got one asset, which is —
Mary McCord: Him.
Andrew Weissmann: — his posts.
Mary McCord: Yeah.
Andrew Weissmann: It’s just his posts or his one —
Mary McCord: Right.
Andrew Weissmann: — the one asset. So valuations 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.
Mary McCord: Appearance, yes.
Andrew Weissmann: Because if you compare it to other companies with the same track record, the valuations are really out of culture —
Mary McCord: Yes.
Andrew Weissmann: — in terms of what’s going on. So you do of course, just like the idea that he would get a third party to potentially pay the $450 million bond, it raises the same issue of undue influence.
Mary McCord: That’s right.
Andrew Weissmann: 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, CEG, TikTok.
Mary McCord: Yes, exactly.
Andrew Weissmann: So that’s a very scary proposition in terms of we’re not dealing with Mary McCord, who’s running for office. Who you would say, oh, well, this person is acting out of principle. And you know what? This isn’t like that old joke of, now we’re just talking about the price, 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.
Mary McCord: So now people have to go do their own Googling.
Andrew Weissmann: Exactly. That’s what I’ve been reduced to.
Mary McCord: Homework. Call it homework.
Andrew Weissmann: Yeah, and the muzzle that’s been placed on me.
Mary McCord: 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’ll scratch yours. You can look at his whole history. He 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 reelection. It’s that transactional nature and the fear here is that where this money comes from could be a big essentially IOU and if I get into the presidency, I will pay you back.
Andrew Weissmann: More acronyms, at least, that one’s great.
Mary McCord: I think most people know that one, I hope.
Andrew Weissmann: Yes, okay.
Mary McCord: So, okay, shall we take a break?
Andrew Weissmann: Yeah, let’s take a break and we’ll come right back and talk about the Supreme Court.
(ADVERTISEMENT)
Mary McCord: 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 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?
Andrew Weissmann: Well, I just want to note that we have another disagreement, because I would quibble with the word somewhat —
Mary McCord: Oh, yeah, that’s true.
Andrew Weissmann: — in what you just said.
Mary McCord: I was being gentle, yes.
Andrew Weissmann: 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 case, which was going to go to trial on March 4th, has been stayed and it will not be unstayed 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 this 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 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.
Mary McCord: Yes.
Andrew Weissmann: And saying that there is a legitimate interest that the government has in speedy trials, it cites to 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 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 trial.
Mary McCord: And just to break in, 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, 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.
Andrew Weissmann: 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.
I 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, Mary what you’ve said, interlocutory appeals.
Mary McCord: Yep.
Andrew Weissmann: Nobody should suffer the opprobrium of 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 —
Mary McCord: That’s right.
Andrew Weissmann: — 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 is never going to trial. But that’s not an interest the Supreme Court should be validating.
Mary McCord: Right.
Andrew Weissmann: 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.
Mary McCord: Yes.
Andrew Weissmann: Just focus on the way I said that.
Mary McCord: Yes, absolutely.
Andrew Weissmann: 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 promptly, because there is no answer to that. And so, Mary, I’m going to turn this back to you, I know when we were reading the briefs, 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.
Mary McCord: 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 Chutkan and before the D.C. Circuit. But the last part of the brief is all about, okay, 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 they better have some fallback positions. So they have several fallback positions. And these are fallback positions that would 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 whether everything alleged in the indictment was part of his official acts, then you need to send this back down to this 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, et cetera, the fraudulent elector scheme, all those things, send that all back. Judge Chutkan has to go through, make findings in 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.
Andrew Weissmann: Right.
Mary McCord: Then they have two additional, somewhat fallbacks. One is that 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.
Andrew Weissmann: Yeah, because, Mary, I just think it’d be so unfair to expect that Donald Trump should understand that overthrowing the counting of votes in a legitimate election, 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. 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 our law really requires notice and there’s like a one bite rule.
Mary McCord: Never mind that no other president has tried to do this, so where would we get that clearly established law from?
Andrew Weissmann: I mean, 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.
Mary McCord: Yeah.
Andrew Weissmann: 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.
Mary McCord: In the Supreme Court.
Andrew Weissmann: 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 inside of a courtroom where this is why when Judge Pan in the D.C. Circuit said, so your position is that you can order SEAL Team Six to kill someone, that’s okay.
Mary McCord: A political opponent.
Andrew Weissmann: Yes.
Mary McCord: Yep, that would be okay.
Andrew Weissmann: That is happening now.
Mary McCord: Right. And to just take fanciful arguments one step further, I actually think their fourth argument was 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 metes 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, we can all agree, is not within your official acts. That’s essentially in 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 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 absurd. 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.
Andrew Weissmann: And 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.
Mary McCord: Yep.
Andrew Weissmann: This isn’t just Mary and me sending off alarm bells that is just in our heads. And there 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 —
Mary McCord: Right.
Andrew Weissmann: — that are antithetical to, I think, how people 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.
Mary McCord: Yeah, absolutely.
Andrew Weissmann: Mary, so great to see you. There is so much coming up. I mean, so 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.
Mary McCord: There sure is and we’ll be here doing our very best.
Andrew Weissmann: 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@nbcuni.com.
Thanks so much for listening. We’ll be back next week with much more. This show is produced by the wonderful Vicki Vergolina. Our associate producer is Janmaris Perez. Catherine 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 Kutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.