As the FBI continues to investigate the second apparent Trump assassination attempt, MSNBC legal analysts Andrew Weissmann and Mary McCord describe the charges brought and the reasoning behind them. Then, they move to the latest out of Georgia after Judge McAfee dismissed three counts from the 41-count indictment, while allowing the rest to go forward. And lastly, Mary and Andrew welcome Adav Noti, Executive Director of the Campaign Legal Center, to calm some concerns about certain jurisdictions refusing to certify this November’s election results.
Want to listen to this show without ads? Sign up for MSNBC Premium on Apple Podcasts. As a subscriber you’ll also be able to get occasional bonus content from this and other shows.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi and welcome to “Prosecuting Donald Trump.” It is Tuesday morning, September 17th. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: I mean, all of our shows are great, but I have to say this is really an interesting show because we have a really special guest and we’re doing sort of two things that are a little different for us. So, Mary, what’s on our dance card?
Mary McCord: Right. So we will start, I think, as people might expect, we will talk about the apparent assassination attempt of Donald Trump that occurred on the weekend. And part of the reason we’re going to talk about that is because this one is very different than the last, because here we have a suspect under arrest and a prosecution that has started and an investigation that is ongoing. Whereas, of course, in Butler, Pennsylvania, the shooter himself was killed.
And so there were lots of things to talk about in terms of failures of the Secret Service, et cetera, but there was nothing like a prosecution to still come in that case. So we want to talk a little bit about that and next steps and how our former colleagues at the Department of Justice and at the FBI will be approaching this. And then we do, of course, want to catch listeners up on what is happening in some of the Trump criminal cases, including particularly in Georgia and in Manhattan. And then, Andrew, as you just indicated, we will end with a special guest from the Campaign Legal Center, Adav Noti, who will, I think, end us on a positive note, I’m hoping, to assure us that the efforts to not certify votes, efforts that are spreading throughout some of the swing states, that those will fail. So that’s going to hopefully be our class half full for the day or for the week.
Andrew Weissmann: Yeah. We’re going to be focusing on this all from a legal perspective —
Mary McCord: Yes.
Andrew Weissmann: — including the apparent assassination attempt. We’re going to really focus on this from a legal perspective, not from some political perspective. And just to level set, as you said, Mary, there have been criminal charges. There are gun charges, and there are gun charges that, Mary, I’m confident you and I have brought these kinds of charges. There are two charges, and they’re brought by way of criminal complaint. One is a charge related to being a felon in possession of a firearm. So that just basically means if you have been convicted of a felony and you possess a gun, there is a federal statute that makes that a crime if the gun has been transported at some point in interstate commerce, which is every gun.
Mary McCord: Almost, yes, exactly. Every gun.
Andrew Weissmann: Yeah. So as long as it’s manufactured in one state and goes to another state or a different country —
Mary McCord: Some other point in time, yes.
Andrew Weissmann: Exactly. So that’s one. It’s called felon in possession. The second charge is an obliterated serial number, because guns have serial numbers and it’s a crime if you are knowingly possessing a gun with an obliterated serial number. These have been charged by criminal complaint, not by indictment. And now, welcome to my criminal procedure course. This is actually criminal procedure, bail to jail covers this.
Mary McCord: Yes. But before we do criminal procedure, can I just make a point about the obliterated serial number charge?
Andrew Weissmann: Oh, yeah, yeah. Sure.
Mary McCord: Because some people are like, why is that a federal crime?
Andrew Weissmann: Great point.
Mary McCord: Well, because serial numbers are an important way that law enforcement can track a firearm. When was it sold? Who has owned it at various times? Where was it sold? Where has it been transported to? And oftentimes, crimes can be solved because of the tracing of firearms. And so it is, you know, not uncommon in criminal cases for a person who is using a weapon to scratch off the serial number so that that gun can’t be traced. And that also is not uncommon when you have gun trafficking, right? That there’s an effort to obscure where that gun came from and things like that. So that’s why it’s so important that there be serial numbers. It’s part of our entire regulation of firearms in this country. And that really impedes on everything that the regulations are intended to do when the serial number is obliterated. And that’s why Congress has made that a federal crime.
Andrew Weissmann: I don’t know if you know this, but I was a monitor for two federal judges in connection with the city of New York, bringing cases in New York and in Georgia against a series of gun dealerships.
Mary McCord: I did not know that.
Andrew Weissmann: I really wasn’t doing this to sort of tout my credentials, it’s that this issue of our regulation of guns, it’s hard to call it that because the serial number can get you where the gun was initially manufactured and when. But when you compare what we do in this country because of the gun lobby with guns versus cars —
Mary McCord: Yes.
Andrew Weissmann: — it’s just remarkable. A car —
Mary McCord: Has a VIN number, yes.
Andrew Weissmann: — you know, has a VIN number but also it is tracked from birth to death.
Mary McCord: Yes.
Andrew Weissmann: And you know at every moment legally, you’re supposed to be able to tell exactly who has it and where it is and everything is sort of recorded. That’s not true with guns, and I could go on and on. But the serial number, as you said, is very important, but it doesn’t give you the sort of birth to death. It gives you birth.
Mary McCord: I mean, if every sale is through a federal firearms dealer, then that sale should —
Andrew Weissmann: It’s not. Right.
Mary McCord: –exactly. That sale should have with it the serial number. But as you said, there’s tons of loopholes and maybe one day we’ll do an episode on guns. Boy, I would relish doing that.
Andrew Weissmann: Yeah.
Mary McCord: Anyway.
Andrew Weissmann: So I was just quickly going to say that one of the things that happened here is that the alleged perpetrator was charged in a criminal complaint. That means that it did not yet go to an indictment. A criminal complaint is where, here, an FBI agent can swear out certain facts and the magistrate finds that there’s probable cause for those charges. Ultimately, to go forward in a case, a grand jury will actually need to vote on whether those charges should be brought as felonies and he will stand trial for those.
Mary McCord: Yeah. And people might be thinking, why is this different? So it’s really whether a case is arrest generated or sort of investigation generated pre-arrest. And whenever you have somebody arrested immediately after what appears to have been a crime or here, you know, there was some sort of crime and the question is, is he the one, and we had a witness identify him, et cetera. When there’s an arrest generated offense, by law, there’s only a short period of time where that person has to be presented in court. And as you said, a magistrate or judicial official, whether they were in state court or federal court, here we’re in federal court, needs to find that, yes, there was probable cause for this arrest. And that is done, as you said, by a complaint with an affidavit sworn to by a law enforcement agent.
Because you know, there hasn’t been time since the attempt on Sunday to a presentation on Monday, there hasn’t been time for presenting this case to a grand jury, yet obviously, the government is not ready for Mr. Routh to go about his merry way without charges against him. And so what the government will do is they will take the most readily chargeable offenses here once they saw that he had previous felonies, including serious felonies in North Carolina, possession of a weapon of mass destruction back from 2002, I believe, and then the obliterated serial number. Those are quite easy things to swear out for a law enforcement officer, right, because they’re readily provable. This is the person, here is his criminal record. He was a felon. We’ve been able to link him and the affidavit spells out in eight pages, I think, how he was linked to the gun that was found there in the bushes at the perimeter of the golf course.
That gun was spotted by a Secret Service agent doing a sweep of the holes that were ahead of Donald Trump when he was playing golf. A witness then saw him flee, jump into a car. And notably during the press conference yesterday, the FBI made clear, I think it was the FBI, or no, maybe it was the Sheriff’s Office, that when he was stopped and asked, do you know why you’re stopped, he acknowledged that he knew. He didn’t act like, no, was I speeding or what was I doing, right? He hasn’t confessed to our knowledge, but, you know, it wasn’t like any kind of surprise that he was being stopped.
Andrew Weissmann: And just to be clear, these are allegations —
Mary McCord: Yes.
Andrew Weissmann: — that were made in a criminal complaint. It remains to see whether a grand jury indicts and then obviously whether he were to be convicted. They’re just allegations at this point. And the process that Mary and I have been talking about, that is all due process rights that everybody has in terms of needing to be charged, needing to have notice. The issue of needing to go to court and being told what you’re being charged with. But moving forward to sort of what’s next, I can tell you what I would be thinking of. One, this step of charging somebody to sort of put them on ice immediately when there’s clear danger would be step number one.
I remember we did that going back many, many years to somebody who was alleged to have participated in the bombing of a plane. We were able to sort of bring charges that were much less serious related to making false statements, but it allowed us to —
Mary McCord: Keep investigating.
Andrew Weissmann: — keep investing, but also to keep him in this country.
Mary McCord: Yes.
Andrew Weissmann: And he was denied bail. And then you still have to do your case rapidly, but then to investigate and continue pursuing. And ultimately, we were able to make the case involving the airplane. And so here, the same kind of thing, you can be sure that the FBI is going through any and all evidence from witnesses, from documents, and getting all sorts of court orders to get access to e-mails to find out everything about him. Ultimately, I think for two things. One, to see if they can make a case about an attempted assassination attempt, which is a federal statute, 18 USC 351, which is an attempt statute when you’re trying to kill a variety of sort of federal type officers. It covers a political candidate.
Mary McCord: Right. Major presidential candidates and major vice presidential candidates, yes. It also does apply to an actual completed assassination, but there are multiple provisions —
Andrew Weissmann: Yeah.
Mary McCord: — including the attempt.
Andrew Weissmann: Attempt. And just to be clear, attempt statutes tend to be more at the state level. This is a federal crime. It also is exclusive. We’re going to come back to that in our next segment about the supremacy clause. But this federal statute actually does two things, one of which I know very well from my time at the FBI, which is the statute itself says it’s the FBI that is the lead agency in investigating these types of crimes.
Mary McCord: That’s right.
Andrew Weissmann: I know that’s a little inside baseball, but when you’re in Washington, who has the ball is sort of important in terms of who’s going to be the lead here. And the second is it says, that if the federal government’s going forward, it’s their case, that it’s not going to be interfered with at the state level. Can I just say the second thing I think that the feds are doing is I think they’re looking for any and all evidence related to his mental state. There are lots and lots of reports coming out and I’m sure there’ll be a lot more about his mental state because they’re going to want to make sure if they charge him either with a gun crimes or if he ends up getting charged with an attempted assassination that they can show what his intent was and that they don’t have a valid defense of not being able to satisfy that mental state —
Mary McCord: Yeah.
Andrew Weissmann: — requirement.
Mary McCord: The other thing I think that they’re going to be spending quite a lot of time on is figuring out if there was anyone else involved. Now, certainly the details about Mr. Routh that have come out would suggest that potentially he was doing this on his own.
Andrew Weissmann: Lone wolf.
Mary McCord: Right. But this was an off the record movement of the former president. In other words, it was not on his official schedule to go golfing that day. And it just is something that I guess he decided at some point in the day, he wanted to go to his golf course. And the Secret Service, of course, had to accompany to the golf course. But it’s not something that anyone with access to the official schedule would have known about.
Andrew Weissmann: Can I just say, apparently, those are definitely the reports?
Mary McCord: No, the Secret Service said during the press conference, this was an off the record movement.
Andrew Weissmann: I just mean the part about nobody else would know. I just think that —
Mary McCord: Oh, no, no.
Andrew Weissmann: I think a lot —
Mary McCord: Well, not that nobody else would know. The would be once the decision was made to do it, there would be people who would know, right?
Andrew Weissmann: Yeah.
Mary McCord: And so the question is, did Mr. Routh just happen to decide that this is when he was going to go stake out the golf course? Because remember, the evidence, as alleged in the affidavit, is that his cell phone was at that location in the bushes starting at 1:59 a.m. in the morning till this was happened at 1:31 in the afternoon. So 12 hours almost that he’s there.
Andrew Weissmann: Right, like a stakeout.
Mary McCord: Yeah, like a stakeout. So was that just happenstance that he decided, all right, maybe this will be the day. And had he been there on other days or we’re going to find out later after they do —
Andrew Weissmann: Yeah.
Mary McCord: — all of the electronic and digital evidence review that he’s actually been there every night for a week, you know, who knows? Or is it something where somehow he got some from someone who knew about this movement, either in advance or at the time, to your point about whether anybody knew. And, you know, if there are others involved, and if there is a possible conspiracy, that’s something else that’s covered by the statute 351. So, I wanted to make the point that they’re going to be looking for all of those things. And so there’s so much more here —
Andrew Weissmann: Yeah.
Mary McCord: — to come.
Andrew Weissmann: Absolutely. I mean, even when it appears to be a lone wolf, the Bureau and other agencies look to see, is there some broader conspiracy?
Mary McCord: Yeah.
Andrew Weissmann: Lone wolves are a particular problem, as Mary, as you know, for law enforcement. Very, very hard to track, detect, deter.
Mary McCord: Yep.
Andrew Weissmann: But obviously, from a law enforcement perspective, if there’s a conspiracy, a plot of many people, whether it’s foreign actors or just groups in the United States, that is a whole other ball of wax. And so you’re totally right that that aspect, even when you might look at the facts and go, well, doesn’t it seem obvious? That’s not how law enforcement works. They need to nail it down —
Mary McCord: They do.
Andrew Weissmann: — that it did or did not. And you can be sure they are, as we used to like to say, boiling the ocean —
Mary McCord: Yup.
Andrew Weissmann: — on all of the facts. Okay, Mary, shall we take a break? And we briefly talked about the supremacy clause and that might be a really good way and segue to talk about —
Mary McCord: What just happened in Georgia?
Andrew Weissmann: Exactly. There’s sort of Georgia, New York, there’s even a little Arizona. We’re going to have a whole class on this. How’s this for a teaser? Our producers will probably kill me, which is, hey, here’s the teaser. We’re going to talk about the supremacy clause.
Mary McCord: There you go. Okay, cliffhanger.
(ADVERTISEMENT)
(MUSIC PLAYING)
Andrew Weissmann: Welcome back. So Mary, take us to Georgia. Judge McAfee had a really interesting ruling with respect to some of the defendants as to whom he still has jurisdiction that are not on appeal. And so he issued a decision as to them that involves the Supremacy Clause.
Mary McCord: That’s right. And people might be thinking, wait a minute. Isn’t this whole case sort of stayed because there’s this dispute about whether Fani Willis should have been disqualified, et cetera, et cetera? Yes, it is stayed as to certain defendants that are on appeal, but others, including John Eastman, are not part of that and have proceeded along with their motions. And that is one of the motions that Judge McAfee was ruling on. However, Judge McAfee recognized that his rulings on certain offenses, even though they technically right now will only apply to the two defendants for whom things are not stayed, will have the effect of applying to other defendants even who are stayed right now, right, because you’re talking about the same offenses with multiple people charged.
Okay. So first of all, the court rejected sort of an outright motion to dismiss the entire indictment as against a couple of these defendants on grounds of the Supremacy Clause. So the Supremacy Clause of the Constitution, of course, makes U.S. law supreme if it’s in conflict with anything that state law might prohibit or state law might direct. He rejected that. And you know, that makes good sense because we have a parallel system of criminal laws here and he went through in a whole analysis that we don’t have time to get into. This would be like Law School 303 about preemption.
Andrew Weissmann: You don’t think our listeners are ready for 303?
Mary McCord: Hey, some are ready. Like I had a listener write to me this weekend talking about how now she feels like she’s in her second year of law school. So we’re already up to second year and it’s only a three year law school. So, you know.
Andrew Weissmann: And it’s free.
Mary McCord: And it’s, yeah, exactly. So we’re going to be to 303 very soon. But at any rate, there’s all kinds of analysis that goes into determining in certain areas whether federal law was meant to preempt state law in an area and a classic area like that is immigration enforcement. The Supreme Court is held for immigration enforcement. That is a federal program of immigration enforcement. It preempts states from enforcing immigration law. But there are so many other things where there’s sort of dual enforcement, right? You can have federal statutes, you can have state. And we were just talking in the last segment about 351, the assassination statute and attempted assassination statute.
Andrew Weissmann: Do you want me to read it?
Mary McCord: Yes, read it.
Andrew Weissmann: Okay, so 351(f), as in Frank, reads as follows, and this would be a classic example of sort of explicit congressional language preempting in a certain way any state or local action in connection with, as we were talking about in the last segment, an attempted assassination charge. Then the statute reads, if federal investigative or prosecutive jurisdiction is asserted for a violation of this section, such assertion shall suspend the exercise of jurisdiction by a state or local authority under any applicable state or local law until federal action is terminated. So —
Mary McCord: It’s about as clear as it can get, right?
Andrew Weissmann: It’s absolutely clear. It’s not preempted for all times, but it stays it essentially until the federal case is over. And so that statute gives federal jurisdiction to the FBI. They will do their investigation, and the state and locals are out until such time as the investigation is done. That was explicit, and that’s not something that Judge McAfee had here.
Mary McCord: That’s right.
Andrew Weissmann: He had to deal with, is there anything about the state proceeding that would be intention with or conflict in a way that was impermissible? So what did he find in —
Mary McCord: Yes.
Andrew Weissmann: — a way that’s kind of interesting?
Mary McCord: It is. So he relied on an 1890s case.
Andrew Weissmann: I saw that.
Mary McCord: I went and read it.
Andrew Weissmann: I had to go read it because I have to say, never heard of it.
Mary McCord: Yes. In re Loney, and I don’t remember that one. Essentially that case held that where a federal law makes it a crime to commit perjury in federal court, then there’s no state interest in penalizing that same perjury. Now, perjury, of course, is a false statement made under oath. And what Judge McAfee did is he looked at the various false statement offenses charged in this massive indictment against a few of the defendants. And he found that with respect to three of those counts, there was not a sufficient state interest because there was a paramount federal interest, and here’s why.
One of them, count 27, was based on Trump and John Eastman filing a false statement in a complaint that they filed in federal court in Georgia. So this wasn’t even about the fraudulent electors ballots. This was about an actual complaint. And this made some press and made some history back when there were rulings on this last year, there was a false statement made in that complaint. And Judge McAfee, I think, quite appropriately based on Loney, says, we’re talking about a false statement in federal court, in a complaint filed in federal court, for which a federal offense applies. There’s not an adequate state interest here. He’s dismissing that count.
Andrew Weissmann: And just to be clear, that’s not saying that these cannot be charged anywhere.
Mary McCord: Oh, right. Absolutely.
Andrew Weissmann: What he’s saying is there isn’t a Georgia state interest under the Supreme Court case to have state charges. If the feds —
Mary McCord: Yes.
Andrew Weissmann: — want to go ahead and charge it, he doesn’t weigh in on that, but he is not in any way saying this isn’t a crime —
Mary McCord: Right.
Andrew Weissmann: — or it can’t be prosecuted. In many ways, he’s kind of saying the opposite.
Mary McCord: That’s right.
Andrew Weissmann: And that this is a federal interest.
Mary McCord: Yes. And there have not been federal charges on that, by the way.
Andrew Weissmann: Yes.
Mary McCord: We would have discussed them if there were. The other two I thought is rationale was a little more dubious. These involved the sending and conspiring to send the fraudulent electoral ballot certificate made by those Georgia fraudulent electors to the chief judge of the U.S. federal court in Georgia, and that is something required by law. As we’ve talked before, and we’ve talked about the fraudulent elector scheme, the statute requires that the electoral ballots, the certificate of the official electoral votes in each state go to a whole bunch of specially designated people. One is the vice president of the United States, and in 2020 that was Mike Pence, so that he can open it on January 6th, right, and read that.
Others include the archivist of the United States and also the district court judge in the state where the ballots are from. So the theory there was when sending or conspiring to send these electoral ballot certificates to the chief judge of the U.S. federal district court, again, Judge McAfee held because that is going into a federal district court, not a state court, not a state official, that that’s again something that federal law covers, there’s not a sufficient state interest. Again, to your point, not that it’s not a crime or couldn’t be a crime, but there’s not a sufficient state interest. So this was applying principles of federalism, right? Feds prosecute federal crimes, state prosecute state crimes —
Andrew Weissmann: Right. Exactly.
Mary McCord: — and we don’t have a significant interest here. But what I think is important here, to the extent that people think, oh, isn’t that rotten that these counts were dismissed? There are plenty of other false statements, charges that remain, including the fraudulent electors are still charged under Georgia state law with making false electoral ballots certificate, making the certificate itself. They’re still charged with forgery and conspiracy for sending the electoral ballot certificates even to the archivist of the United States as well as the governor. So the archivist, even though it’s a U.S. official, apparently in Judge McAfee’s mind, didn’t have the same status, for example, of a federal court. And I think it’s because Loney itself, the 1890s case, was about a false statement in a federal court chargeable by perjury. So it’s kind of a technical, I mean, it’s a minimal impact on the case, I would say.
Andrew Weissmann: Yeah, I think that’s right. I mean, because the certifications, there’s so many state contacts.
Mary McCord: Yes, it goes so.
Andrew Weissmann: And the reason that’s important is not just for the Georgia case, but there are fraudulent elector cases, as we’ve discussed, in other states.
Mary McCord: That’s right.
Andrew Weissmann: And so having Judge McAfee’s decision out there is something that is not binding on the other states, but there will certainly be authority that’s used. And so it could limit those, but it won’t in any way kill them. Mary, you had made the comment that you thought that the dismissal of counts 14 and 15, you said you thought it was a little bit more dubious, and I was wondering why you thought so.
Mary McCord: Well, just if you look at the Loney analysis, which perjury in like witness testimony in federal court more like with count 27, the filing of a complaint in federal court under federal law. This is just a statutorily designated recipient of the electoral college votes. It’s not like there’s a pending case in the district court where one of these electors is testifying in front of court in a federal case. It’s just the district court on a list of other recipients that are to obtain these. So it just didn’t seem as directly —
Andrew Weissmann: Right. Yeah.
Mary McCord: — governed by Loney. I mean, I have not spent hours and hours analyzing because again, I think the impact is so minimal. I just think that one’s a little bit more questionable and I don’t know whether you agree with that or not.
Andrew Weissmann: You know, I thought he was playing it safe and I’m not even sure I’d say reasonable minds could differ. I mean, obviously they could. It’s that I thought that it was a logical extension of Loney and not too big an extension. And so I could see why he did what he did.
Mary McCord: Sure.
Andrew Weissmann: The decision reads very well. I mean, he’s obviously a serious judge —
Mary McCord: Yeah.
Andrew Weissmann: — and he had another decision about RICO where he denied the defendant’s claims with respect to that. Extremely well-reasoned.
Mary McCord: Yeah.
Andrew Weissmann: I know a ton, unfortunately, about RICO from my organized crime days. It was very, very well done. Should we jump quickly to New York?
Mary McCord: Yeah, I was just going to toss to you, the “New Yorker,” about what’s going on. So we have talked before about the efforts of Mr. Trump in the Manhattan case post-verdict to remove that case to federal court. I think last week we talked about how Judge Hellerstein denied that right away. And then, of course, he took that up to the Second Circuit. What’s the status now?
Andrew Weissmann: Yeah. And I think last week we noted that it was scheduled to be heard, I think the date we were actually recording, but there hadn’t been a decision. And there was a really quick order from the court basically dismissing it as moot, saying that whatever you want to call what Judge Hellerstein did, whether it has to do with leave, whether it has to do with removal, that Donald Trump’s claim that I need to be heard because there’s not enough time now between when Judge Merchan is going to issue his immunity decision and when the sentencing is scheduled, and so I just need to be in federal court. He basically was just like, I just want to be here. It was almost like —
Mary McCord: I just want to be there, yeah.
Andrew Weissmann: It reminded me so much of when I was clerking, or it just seemed like a pro se litigant saying, I just want to win.
Mary McCord: Yeah, that’s right.
Andrew Weissmann: You tell me how I want to win.
Mary McCord: And also, by the way, I need a little bit more delay.
Andrew Weissmann: Yeah. And the court basically just said, given that Judge Merchan has put this all off and the sentencing’s not scheduled until the end of November, and that there isn’t even a decision on immunity, it’s all moot. We’re just not hearing it. It’s basically denied.
Mary McCord: Denied.
Andrew Weissmann: And the other is the New York Court of Appeals basically isn’t going to hear the continued challenge to the gag order. That’s denied. Basically, things are steady as they go —
Mary McCord: Yes.
Andrew Weissmann: — which is that there’s going to be this decision in the middle of November.
Mary McCord: Post-election.
Andrew Weissmann: Exactly, on the effects of the immunity decision. And then there will —
Mary McCord: Maybe a sentencing, maybe not.
Andrew Weissmann: Maybe a sentencing, but there’ll be probably a lot for us to talk about at that point.
Mary McCord: Yes.
Andrew Weissmann: And remember, this is the case where regardless of what happens in the election, the case stands because it’s the state case.
Mary McCord: That’s right.
Andrew Weissmann: And yes, the Supreme Court could ultimately weigh in on the effect of this evidence being used —
Mary McCord: Right.
Andrew Weissmann: — but getting rid of the case because Donald Trump, let’s say, wins the election, that’s not possible —
Mary McCord: Right.
Andrew Weissmann: — because it’s not under DOJ control.
Mary McCord: He cannot direct his attorney general to dismiss a state case.
Andrew Weissmann: Exactly. Mary, this is such a good transition to our guest who’s going to talk about election interference. And when I was thinking about this, and maybe you know so much about this, but the Congress post-January 6 did this bipartisan bill sort of revamping deadlines and also making it absolutely clear, in case it wasn’t already —
Mary McCord: Yes.
Andrew Weissmann: — that the vice president’s role in this is ministerial. And you know what? You couldn’t have a better example than this election where the sitting vice president is the candidate for president —
Mary McCord: Yup.
Andrew Weissmann: — because under Donald Trump’s theory, Kamala Harris can just be like, oh, you know what?
Mary McCord: Yep. What’s good for the goose.
Andrew Weissmann: It is. I’m looking at these electoral votes.
Mary McCord: Yeah.
Andrew Weissmann: And you know what? The ones for me seem really valid.
Mary McCord: Yes. The ones for the other person, not so much.
Andrew Weissmann: The one with the names Trump, I think —
Mary McCord: Yeah.
Andrew Weissmann: — those seem suspect.
Mary McCord: Yep.
Andrew Weissmann: And so it’s just a perfect example of you wouldn’t even need to have her be the candidate, but it makes it obvious why that can’t be the rule because you have the sitting vice president running.
Mary McCord: Which was the case in 2020, Vice President Pence.
Andrew Weissmann: That was exactly, he had the exact same interest —
Mary McCord: Exactly.
Andrew Weissmann: — in terms of like, I’m not doing it. You’re exactly right.
(MUSIC PLAYING)
Andrew Weissmann: Okay, let’s come back to that after the break and we have a really terrific guest.
(ADVERTISEMENT)
(MUSIC PLAYING)
Mary McCord: Welcome back. As we noted at the top of the episode, we are very pleased to have joined us today, Adav Noti. He is the Executive Director of the Campaign Legal Center. He coordinates all of the Campaign Legal Center’s operations and programmatic activities, oversees the efforts to protect elections, advance voter freedom, fix the campaign finance system. That’s a tall order, Adav. And ensure fair redistricting and promote government ethics. And he also spent, I think, 10 years or more at the Federal Election Commission in various capacities, and also had some time as a special assistant U.S. attorney. So then you fit right in with Andrew and me on our time in U.S. attorneys’ offices.
And as we noted at the top, we invited Adav because there are a lot of stories out there circulating about concerted efforts, strategic efforts for election officials to refuse to certify elections after the 2024 election. And we wanted to kind of get some ground truth on that. But before we jump into that, Adav, can you just tell people what, you know, I gave you a little overview there, but tell people what the Campaign Legal Center does.
Andrew Weissmann: And maybe more importantly, how on God’s green earth do you accomplish the tasks —
Mary McCord: That’s true.
Andrew Weissmann: — that Mary laid out because it seems like you must have a staff of about, I don’t know, 10,000.
Adav Noti: Well, we have some pretty phenomenal lawyers. Thanks for having me today. So Campaign Legal Center is a nonpartisan legal advocacy organization. We work to advance democracy through law, which is a mix of litigation and legislative work, trying to protect voters and fix money in politics and gerrymandering, among other things and particularly for what we’re talking about today, to ensure that the will of the voters as expressed through the votes cast translates into, of course, the final results of the election and who takes office.
Andrew Weissmann: And that’s regardless of the outcome of the vote, it’s to make sure all votes are counted and no one’s disenfranchised.
Adav Noti: Whoever the voters select should be the person who takes office.
Mary McCord: Well, that seems simple enough, doesn’t it? So let’s talk about the rumors we’ve been hearing. I guess they’re more than rumors.
Andrew Weissmann: They’re more than rumors, yeah.
Mary McCord: Yes, in fact, we’ve had an actual new regulation in Georgia giving election officials some sort of discretion to make further inquiry into votes as opposed to just certifying. And I guess my first question for you is just to sort of explain what this apparent strategy is. And it’s not just in Georgia and elsewhere, about election officials refusing to certify the results of elections. You know, how does this work? Who’s generally in charge of certifying and is their role as discretionary as one would think given this strategy that’s circulating or is it more ministerial?
Adav Noti: Right, well, I think the strategy is, it’s more than rumors, clearly. It is underway and actively being planned and tested and telegraphed quite clearly. And basically the strategy is to try to get local officials, which in most states means county officials who have some ministerial role in the tabulation or vote canvassing or election certification process to gum up the works, to not perform their duty and thereby create uncertainty or doubt or chaos about how we’re going to get from election day to having final results. The background to that strategy actually goes all the way back to 2020 and we can talk about how we got to this point. But now for the 2024 election, it’s pretty clearly that’s going to be the strategy.
Andrew Weissmann: Can you describe a couple ways that somebody goes about gumming up the works as you coined it? What actually are people trying to do under at least the guise of making it seem like they’re just trying to have a more honest and fair and accurate election? What are the means by which it looks like, oh, well, what’s going on is just fair and balanced and they’re just trying to do things that are making the election safer, but in fact, you think it will actually gum up the works and lead to a sort of political interference with the voting.
Adav Noti: The dream of the election deniers was to have somebody in a position in a potential dispositive or swing state who actually would have the power to block the election from actually being certified. All of the folks who tried to obtain those offices in the last few election cycles have lost their elections. At the statewide level, there aren’t very many opportunities to create havoc in this way. So what it’s really focused on is at the sub-state level, which again, in most states, is the county level.
And the idea is to have these county officials whose job in the context of elections is to collect the numbers from the various polling places in their jurisdiction, put them into a spreadsheet, add them up, and report them to the state election official. That’s the vote canvas. And that’s what we’re really talking about here. And the idea is to have those folks say, how can I send these numbers on? How can I quote, unquote certify them? I don’t know if they’re right. I want to conduct an investigation into that and thereby create problems for the state election official who needs to meet a legal deadline to certify the results.
Mary McCord: And let’s talk about that deadline just a minute —
Andrew Weissmann: Yeah.
Mary McCord: — because I think that’s so important.
Andrew Weissmann: Exactly.
Mary McCord: This year it’s December 11th, right? And so what is the significance for our listeners of that date?
Adav Noti: So under a new federal law that was passed on a bipartisan basis by Congress in 2022, all states have to certify their presidential election results by December 11. And that’s for the first time in American history. There used to be sort of a soft deadline around the same time.
Mary McCord: A safe harbor. Didn’t we call it a safe harbor deadline?
Adav Noti: Yeah. We called it a safe harbor. Nobody was ever really sure what that meant or how it operated and Congress replaced it with an actual firm deadline. So every state in the nation is now required to certify their presidential election results by December 11. And when I say certified there, I mean, actually certified. I’m not referring to the county canvas. So, see the actual signature on the piece of paper that in most states is done by the governor saying, here is the winner of our presidential election. Therefore, here are the members of the electoral college from our state.
Andrew Weissmann: And what happens if they don’t meet that? In other words, if the county level withholds, let’s say three counties in Georgia just to take an example, don’t send their numbers up to the state level?
Adav Noti: This is the goal of the election deniers is to create a problem ultimately with this December 11 statewide certification deadline, but it’s not going to work because there are a number of steps in the process to prevent any of these sort of county issues from jeopardizing the statewide certification. So first, Andrew, if a county official refuses to do their job and pass the numbers along, in every state, there are quite a few remedies to force them to do that. In some states, it is through state court action. In some states, the statewide elected official can either order them to do it or can just take over the county function and do it themselves.
Mary McCord: So that might be the Secretary of State, for example.
Adav Noti: Right. In most states, it’s the Secretary of State.
Mary McCord: 6Yeah.
Adav Noti: So for example, in Michigan, if this happens, the Secretary of State is going to take it over. And then the federal courts are also an option because it would likely violate the constitutional rights of the voters in that jurisdiction to not have their votes counted. It also violates their federal statutory rights. So there are all those remedies. And the county canvases are time-wise usually quite a ways before the statewide certification deadline. So it’s not like the counties are required to certify on December 10th and then the state December 11th. It’s usually a ways before. So there’s time to force that action before it gets to the state level.
Then to the second part of your question, what if nonetheless the state were to somehow for some reason, whether it’s through this sort of concerted nefarious activity or some other reason, miss the December 11th deadline. Then there’s a process built into the new federal law for that, which basically provides for a specially convened three-judge federal court meeting in the state that’s at issue to hear the case on an extremely expedited basis and rule on any disputes that remain outstanding about the election. And that ruling has a right of direct appeal to the U.S. Supreme Court, skipping the intermediate courts and all of that including any potential Supreme Court order, has to happen before the Electoral College voters meet and cast their votes on December 17th.
Mary McCord: That is extremely fast, as all of our listeners know.
Adav Noti: Yes.
Mary McCord: As we’ve been discussing for a year and a half now, litigation often moves very slowly, but these are congressional deadlines. So suppose a judge just doesn’t act fast enough. Just don’t do it. We have filed, you know, in my current position, we have filed motions for temporary restraining orders, which are supposed to be emergency that a judge just has not acted on expeditiously.
Andrew Weissmann: I’m shocked.
Mary McCord: Yeah, shocked. I mean, they’re their own branch of government, the federal judiciary, right?
Adav Noti: They are. But courts, both federal and state have been very good. Even in 2020, when there was quite a bit of litigation activity —
Mary McCord: Yes.
Adav Noti: — most of it frivolous, but dozens and dozens of cases. Courts all over the country, state courts, federal courts, trial courts, appellate courts, they all worked extremely quickly.
Mary McCord: They recognized the urgency of the situation.
Adav Noti: Right. And ultimately here, you know, it’s built into the statute that the Supreme Court, it has a statutory mandate to rule before the electoral vote. And every indication from election cases in past cycles going back to 2000 and earlier is that, you know, the U.S. Supreme Court isn’t going to allow the judiciary to be the institution that causes the chaos that would result from problems with the electoral votes. So they’re pretty confident in the Judiciary Act.
Andrew Weissmann: Can I ask you a question about not timing with respect to federal judicial review, state judicial review? It’s ultimately Supreme Court review. Let’s assume they’re all going to act quickly. It’s not going to be what we’ve seen in other cases. They get how quickly this has to be decided. What exactly is before those judges? What will they be deciding? You’re coming in, and we’re so grateful you are, but our podcast has spent a lot of time. talking about judicial decisions, including by the Supreme Court, where I think a lot of our listeners, when you said the Supreme Court ultimately can review it, probably were like saying, God help us, because we’ve both been very critical of the presidential immunity decision. And so what is the question that the Supreme Court or the federal court would have before it that it would be deciding? Is it sort of cabined or limited in a way that could give our listeners some comfort as to what will be decided?
Adav Noti: What would be an issue in this case is why the state has not certified its presidential election results or in a situation where the state, essentially where the governor of the state went rogue and certified the wrong winner, just said, I don’t care who won, I’m going to certify the other candidate. Those are the two sorts of situations and what would be presented to the court, is the question of who is entitled to these electoral votes. And since all states allot their electoral votes by popular vote, the question is who won the popular vote in this state.
And certainly there are many reasons to question the Supreme Court, whether we can trust the Supreme Court on democracy issues. But in terms of election subversion or sabotage, the Supreme Court was fine in 2020, even when other institutions were not. And when you look at the various institutions who could be the final decision makers in a situation like this, whether it’s the federal courts versus Congress versus the governor or the legislature of a state, none of those are perfect options. They could all be somewhat scary if you have the wrong people in those positions. But as between them, it probably is ultimately the courts that are best positioned to reach a result that has legitimacy.
Andrew Weissmann: Can ask you one question about for your institution, what are you most worried about? What are you gearing up for and sort of thinking from a legal perspective, what sort of keeps you up at night?
Adav Noti: I think from a legal perspective, we’re in pretty good shape. The efforts in 2020 to overturn the election results were focused on getting a state legislature to overturn the results by fiat or getting Congress to throw out electoral votes on January 6, 2021. Both of those avenues of election subversion had been made much harder, maybe even impossible by the changes to federal law that Congress enacted in 2022. Very, very difficult now to pursue either of those. So, election subversion is going to have to take a different form. Clearly, non-certification by county officials is the primary tactic that’s going to be tried. But I guess the concern, I think, isn’t so much that some county is going to refuse to certify, but that in the efforts to do that it could cause confusion and chaos, and even potentially violence or unrest around the election results, even if the legal framework is sound.
Mary McCord: And so this is something that I wanted to end with as well. We’ve talked a lot on this podcast about the fraudulent electors scheme and Adav, you and I have talked a lot about that in other forums and the new law you’ve been talking about is the Electoral Count Reform Act. And there are things that it does that are where I think very helpful. Like it makes it very clear that the role of the vice president in his capacity as president of the Senate on January 6th, the day that the joint session of Congress meets to actually count the Electoral College ballots, this statute makes clear that his role that day, or hers, in fact this year, it will be her —
Andrew Weissmann: To her.
Mary McCord: — is ministerial only. And in other words, all of the plots we saw about the pressure on Mike Pence in 2020 to simply reject the legitimate electoral ballots from particularly the swing states and either accept the fraudulent ballots or send those elections back to the states for the state legislature to intervene and send up its own slate of ballots. The idea there was to make clear that no, he doesn’t have or she doesn’t have that authority. It’s a ministerial role. You open them, you count them. That’s it. The other thing it did, I know, is it used to be, did not take very many objectors. And we had objections in 2020 from various senators and members of the House of Representatives to different state ballots.
And now it would take 20%, right, I think of each house, the House of Representatives and the Senate to object to the ballots from a particular state in order to cause them to have to then deliberate over what should happen. So I do agree that has closed some of the gaps and vulnerabilities, but it’s not a total remedy when, I mean, if there were to be 20% of the congressional members from each House to, I’m just going to throw the word out there, conspire to object to a particular state’s votes, we could still have an issue.
And like you said, also, if there were people who wanted to capitalize on various refusals to certify and sow confusion and suggest that the, you know, election just, or that it’s out there had been stolen. And I don’t want to put a damper on things, but there is still some wiggle room there, right, that we all need to be quite conscious of.
Adav Noti: There’s a little bit of wiggle room, but it’s significantly reduced. It didn’t obviously work in 2020.
Mary McCord: That’s right. It did not.
Adav Noti: And it didn’t even really get close to working, right? There wasn’t one state where the legislature or any state actor seriously considered changing the election results.
Mary McCord: That’s true.
Adav Noti: It’s like pretty intense pressure. But what it did have were the fake electors from a number of states. And that’s what fueled ultimately what we saw on January 6, 2021. So that’s dealt with in two ways. First, if the new rules have been in effect in 2021, none of those objections would have been cognizable. None of them got 20 US senators.
Mary McCord: Twenty percent.
Adav Noti: Yeah.
Mary McCord: Right.
Adav Noti: So they all would have failed immediately. And even before we get to that point, the new system with the hard certification deadline and the specific court procedure to iron out any disputes is all intended to make sure that there won’t be multiple sets of electoral votes.
Mary McCord: Slates.
Adav Noti: Yeah. There’s only going to be one per state before Congress. If there are congressional majorities in both houses to object to that, that could cause an issue. But that’s never happened in American history. And there are plenty of members of Congress on both sides who have already said they’re not going to go down that road.
Mary McCord: And I think that’s just such an important point because like you said, there were lots of efforts and we’ve talked about them extensively on this podcast by the fake electors and the attorneys, including Trump campaign attorneys who concocted the scheme and pushed the scheme and ensured that the Trump-Pence slates would meet in the swing states and cast their ballots, even though their candidate didn’t win. But the secretaries of state and the election officials at the state level, including Republican secretaries of state refuse to budge on that. And so I think the solace we can take is that there still are more people who want to actually respect the process and not undermine it than there are those who would seek to undermine it. And that’s a good way to go into this election.
Andrew Weissmann: And we also have the solace of knowing that you and your organization are watching for all of us.
Mary McCord: Yes.
Andrew Weissmann: To make sure whatever happens in the election, the votes are counted. Can’t thank you enough for coming. I wanted to make sure everybody knew that they could get more information about the Campaign Legal Center by going to the website. We’ll also put a link to it in our show notes so that you can learn more about not just what Adav talked about here, but the full scope of their work.
Adav Noti: Thank you for having me. There are a lot of folks out there right now working very hard to make sure the selection is safe and secure, and I’m pretty confident those efforts are going to succeed.
Andrew Weissmann: This is so reassuring. Thank you so much.
Mary McCord: That’s right. We feel good. That was just fantastic to have Adav Noti with us. Again, Adav is the Executive Director of the Campaign Legal Center. Thanks, Adav.
Adav Noti: Thank you.
Andrew Weissmann: Thanks for listening. Remember, if you want, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. And you also get some bonus content, but you can continue, of course listening to us for free, but with ads, anytime you want.
Mary McCord: That’s right. Just a note to our listeners, next week we will not be recording on Tuesday, September 24. Instead, we will be recording on Wednesday, September 25. Because on Tuesday, the Senate Committee on the Judiciary will be holding a hearing. We think this is something that will be of great interest to our listeners, certainly great interest to us. So we will be recording Wednesday, and the podcast will be out on Wednesday evening.
(MUSIC PLAYING)
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934, or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for prosecuting Donald Trump wherever you get your podcasts and follow the series.