Last Friday’s joint filing in the DC election interference case before Judge Chutkan highlighted the deep chasm between Special Counsel Jack Smith and Trump’s legal team when it comes to how to proceed after the immunity decision. MSNBC legal analysts Andrew Weissmann and Mary McCord give their unique perspective on what both sides offered up and which arguments hold merit. Then, they head to New York to detail the second effort by Trump’s legal team to remove the hush money case to federal court, weeks before his scheduled sentencing before Judge Merchan.
*** A note: Shortly after this episode was recorded, the federal judge denied leave to Mr. Trump to file removal papers after determining that no good cause for the late filing had been shown and removal to federal court was not warranted. Next stop: Trump can appeal that denial to the Second Circuit Court of Appeals.
Also to listeners: MSNBC Live Democracy 2024 is now sold out. Thank you for everyone who signed up to join us this weekend. And if you didn’t manage to grab a ticket, we’ll be posting selections of Saturday’s conversations as a podcast next week, so keep an eye out for that.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome to “Prosecuting Donald Trump,” the September edition. So it is September. You know, since we’re both academics these days, it’s like we’re back in the fall swing of things, so the semester having started. Anyway, I always forget to do this. I’m Andrew Weissmann. And guess who I’m here with?
Mary McCord: Your co-host, Mary McCord. Yes, good morning —
Andrew Weissmann: Hi, Mary.
Mary McCord: — everyone. It is our 101st episode.
Andrew Weissmann: I know. We were thinking that this would be our hundredth, but we had our emergency episode last week because of the indictment.
Mary McCord: The superseding indictment in the January 6th case in D.C.
Andrew Weissmann: Exactly.
Mary McCord: So today really we’ll be talking about sort of the next step of that, because on Friday the parties filed what they labeled a joint status report —
Andrew Weissmann: Right.
Mary McCord: — but really it is a disjointed status report because the parties, that is Mr. Trump and his attorneys and Special Counsel Jack Smith and his team, pretty much don’t agree on anything about how this case should proceed in the wake of the superseding indictment and the Supreme Court’s opinion.
Andrew Weissmann: The first slide is very funny because they say, we submit this joint filing and this is what we agree on, we agree essentially that there needs to be a joint filing.
Mary McCord: That’s right. That’s exactly right.
Andrew Weissmann: But then it’s like a Frankenstein.
Mary McCord: Yeah.
Andrew Weissmann: It’s like two pieces mashed together.
Mary McCord: The only substantive thing they agreed on is the Speedy Trial Act should be told during this period. Like, okay.
Andrew Weissmann: Right.
Mary McCord: There we go.
Andrew Weissmann: Right.
Mary McCord: All right, so we’re going to get into that and what the impact of that is. We’ll talk also about Trump’s effort to remove his Manhattan case to federal court. Remember, this case was prosecuted. He was found guilty by a jury of 34 counts in state court. And he is scheduled to potentially, maybe, maybe not, be sentenced on September 18. And he is now at the last minute, 11th hour, saying, no, no. None of the issues about immunity or anything else should be decided by the state court judge, Judge Merchan. This should be removed to federal court. So we’ll talk about that.
Andrew Weissmann: Yeah. So for those people who listen to Mary talk about this removal petition, you probably are thinking, wait a second, in the recesses of my brain, don’t I seem to recall that came up already and wasn’t it decided, which is why the trial before Judge Merchan and not the trial before Judge Hellerstein in the federal court? You would not be wrong —
Mary McCord: That’s true.
Andrew Weissmann: — if that’s what you thought because this is filing redux.
Mary McCord: That’s right, which happens a lot in the Trump cases. Let’s just face it.
Andrew Weissmann: Yes, it does. But I first have, as you know, I have like this sort of budding social media presence.
Mary McCord: Oh.
Andrew Weissmann: So I’m on X.
Mary McCord: Just now budding? Yeah, I think it’s in like full flower.
Andrew Weissmann: Well, I’m on X and I’m trying to withdraw from X.
Mary McCord: Good for you.
Andrew Weissmann: And I’m also on Threads and I’m really, I’m budding on Instagram.
Mary McCord: Ooh.
Andrew Weissmann: And I can report to you on something that someone said about you, which I just loved.
Mary McCord: Uh-oh.
Andrew Weissmann: No, no, no. You could be sure it’s good.
Mary McCord: Okay.
Andrew Weissmann: It was, Mary McCord, Katharine Hepburn with a law degree.
Mary McCord: Oh, I love that. Okay, I’m keeping that one. Can we frame that?
Andrew Weissmann: I was like that’s pretty great.
Mary McCord: Young people are like, who’s Katharine Hepburn?
Andrew Weissmann: No, I think young people knew Katharine Hepburn was pretty —
Mary McCord: They know the name. I hope so.
Andrew Weissmann: — iconic.
Mary McCord: Oh, I love it.
Andrew Weissmann: So I thought that was great.
Mary McCord: Yes, I love that too. Thank you for sharing that. You made my day. Okay, shall we talk substance?
Andrew Weissmann: Yeah, so let’s just set this stage, which is just to remind people the Supreme Court had delayed the Judge Chutkan January 6th case. There was a decision by her in the district court. The case could go forward. That got appealed. That went to the D.C. Circuit. It went to the Supreme Court.
And during this whole time, from December of last year until last month, there was a stay while this was on appeal in the D.C. Circuit and in the Supreme Court. The Supreme Court sent it back to her and she had set a schedule saying I want the parties to file this joint brief and then a week later come see me. And that led to Jack Smith asking for a three week delay and that happened.
During that time, there was a superseding indictment thing that you referred to, Mary. And we finally got, Friday, the disjointed submission with the parties laid out what they want in terms of scheduling and what should be heard when and sequencing. And on this Thursday, the parties will appear before Judge Chutkan. It is not necessary for Donald Trump to appear. It’s a scheduling conference, but the lawyers at least have to appear this Thursday for Judge Chutkan to schedule out what should be heard and when it should be heard.
So that’s sort of the background is sort of where we are. Mary, should we first talk about what Jack Smith is proposing and then turn to what Donald Trump is proposing?
Mary McCord: Sure, we can. And I just want to make sure, listeners, if you did not hear the emergency episode, that is the episode where we did go through the superseding indictment that was returned on Tuesday. Now we’ll talk a little bit more about that today, of course, but that is the superseding indictment, which is what Jack Smith returned in front of a brand new grand jury. It’s really the grand jury that returned it, not Jack Smith, because it’s a grand jury that decides is there probable cause for these charges based on the evidence presented to the grand jury. We went through on that episode the things that were removed from the original indictment to be in compliance with the Supreme Court’s immunity decision and the things that were added, not everything. And there’s something today we’ll talk about with respect to compliance with a different Supreme Court decision, the decision in Fischer, but we talked about this last week.
So now the question is, since Jack Smith, we now know why he asked for that three weeks. He was planning to, you know, and already maybe had started presenting the case to a new grand jury and planning to return that superseding indictment. So now we have the party’s submissions.
And starting with what Jack Smith says for the special counsel, he is tracking, again, just like he did, I would say, with the superseding indictment, he is tracking what the Supreme Court said, which is essentially immunity issues should be decided at the outset. Notwithstanding that this case has been around for a year plus, we are still at the outset in the sense that we have not yet gone to trial. We have not even really gotten into the final preparations for trial. We are still in that very much that pre-trial motions phase because, as you said, Andrew, the case was stayed for a very long time while it was up in the Supreme Court on the immunity issue.
So Jack Smith is taking the Supreme Court majority at its word, decide the immunity issues at the outset. The Supreme Court remanded for the district court to decide in the first instance whether the charges against Donald Trump involved official acts. And we talked about this last week. We talked about this back when we talked about the immunity decision, when it first came down, official acts are things for which either in some things, if they relate to the president’s core presidential responsibilities conveyed by the Constitution, he has absolute immunity. If they are otherwise part of the outer perimeter of his official acts, he has presumptive immunity that can be rebutted by the federal government.
Andrew Weissmann: At least. At least —
Mary McCord: At least, at least. They might decide later, nope, it’s absolute there too. At least presumptive immunity, which they remanded for a determination about whether the government could rebut it. And that had to do particularly with what his conversations with the vice president.
And then things that are unofficial are just not immune at all. So the Supreme Court sent it back down for Judge Chutkan with the benefit of briefing and potentially factual development to go through and decide what is official and he can’t be prosecuted because the government can’t rebut it, what is unofficial and he can be prosecuted. So Jack Smith is saying we’re ready to file a brief, right?
Andrew Weissmann: Let’s go.
Mary McCord: Let’s go.
Andrew Weissmann: Let’s go snap a doodle.
Mary McCord: We will file it and —
Andrew Weissmann: I thought that’s an oldie and a goodie.
Mary McCord: It is, and it’s perfect here. The government is prepared to file its opening immunity brief promptly at any time the court deems appropriate, which says to me they have it written.
Andrew Weissmann: Exactly. Wait, that’s so funny. That was just like, when they said anytime, I could see the judge being —
Mary McCord: Tomorrow.
Andrew Weissmann: — okay, tomorrow, right.
Mary McCord: Exactly. No bluffing there.
Andrew Weissmann: Exactly. They clearly have written it. And you know what? Of course they have because as you said, to do that superseding indictment, which meant they had to anticipate exactly where the looming issues are from the Supreme Court decision, they clearly had written material probably in the department —
Mary McCord: Legal memos, absolutely.
Andrew Weissmann: Exactly. So this is something that is ready to go. And so it’s such a powerful message to the court that said, we are happy to file now.
Mary McCord: Right.
Andrew Weissmann: As soon as you say, we will file something supporting how we see this case going forward consistent with the Supreme Court decision.
Mary McCord: And I want to be clear there. There are two things they say they would include in their brief that —
Andrew Weissmann: Exactly.
Mary McCord: — that follow directly from the Supreme Court decision. So the government proposes that it file an opening brief, I’m reading from their proposal, in which it will explain, and I’m adding this, first, which it will explain why the immunity set forth in Trump, meaning Trump v. United States, the Supreme Court decision, does not apply to the categories of allegations in the superseding indictment. So that’s thing one. It doesn’t apply to the things he’s actually being charged with. Or thing two —
Andrew Weissmann: Or the allegations that —
Mary McCord: That supports those charges, right?
Andrew Weissmann: Yeah.
Mary McCord: Or, and this is thing two, additional, unpled categories of evidence that the government intends to introduce at trial and will proffer in its brief. So what does that mean? That means we will brief why what is in the indictment and what he is charged with are not official acts or otherwise we rebut the presumption of immunity if they are.
And second, we will also proffer the evidence that we intend to offer in support of these charges even if we didn’t include that in the indictment so that we can litigate right now whether those are official acts or unofficial acts because the Supreme Court went even further than holding that the president has immunity for official acts during the term of his presidency. They said even evidence of official acts cannot even be used if prosecuting for unofficial acts, with an exception for things that are in the public record already.
Andrew Weissmann: So one thing for people to remember is that what you allege in an indictment is usually almost always a subset of what you are going to prove at trial. Even in a so-called speaking indictment, which this is, something that tells a whole story, the proof that you lay out at trial is going to be much broader. So what the prosecutor is saying here is we are happy to lay that out and explain why we are not using impermissibly official act evidence to prove the case.
So it’s not just going to be what’s on the face of the indictment. It’s also going to include what we’re anticipating proving at trial and why that’s permissible. Of course, that’s a totally correct thing for them to have said to the court. It’s anticipating problems. If I’m the judge, I’m thinking, oh, this is what I want from the prosecutor. I want to deal with those issues now. I don’t want the issues that are now before Judge Merchan, I don’t want to have to deal with those after the trial. I want to deal with them now. But the danger to Donald Trump, if you saw that proposal, is there’s no way in God’s green earth that I want that filing made any time before the election.
Mary McCord: And that’s what drove his proposed schedule.
Andrew Weissmann: Exactly. This is like the segue, but this is the prosecution saying, we’re going to lay out on paper what the proof is so that we can show you how we satisfy the legal test.
And the problem for Donald Trump as a political matter is that that may reveal all sorts of facts and information that the government alleges would prove the crimes charge and allow them to go beyond the indictment. By the way, properly, because if this was any other case, this is what a judge would want. So great segue to what it is that Donald Trump says.
So just to be clear, we have on one side, which is we are ready to go with what you need, Judge, at any moment you want it. Meaning, if you say today, it’s going to be today. So at the Thursday conference, the Judge could literally say, file it tomorrow —
Mary McCord: Yep.
Andrew Weissmann: — on Friday. So that’s Jack Smith. And gee, I wonder, what do you think Trump will say?
Mary McCord: So Trump says, there are so many issues that we have to decide before we get to a meeting.
Andrew Weissmann: So many. Mary, so many.
Mary McCord: So many. Because here, Smith has —
Andrew Weissmann: We’re not snapping that doodle.
Mary McCord: No, we’re not snapping that doodle. We are slowing the doodle down. So it’s like, because Jack Smith came in and brought a superseding indictment, so we’re entitled to all kinds of things.
First of all, this might completely change the discovery and the Brady information. Brady, as people will recall, is information the government has that might be exculpatory or impeaching and you have a constitutional right as a defendant to get that information from the government. You also have a right to discovery, which is all the information about how the government is going to bring this case. And they say, we may have new discovery based on the Supreme Court’s immunity ruling. In other words, new facts about whether things are official or unofficial, new Brady information that would suggest something that Jack Smith says is unofficial really was official. And that’s the first thing we should do. We should have a deadline for that, September 30th.
The next thing we should do is we should brief a motion to dismiss based on Jack Smith being unconstitutionally appointed and unconstitutionally paid for —
Andrew Weissmann: Who (ph) said that. Who —
Mary McCord: — because we now have a district court decision in another case dismissing the entire case because he was unconstitutionally appointed, so.
Andrew Weissmann: By the way, if you remember, I said that’s what they’re going to say.
Mary McCord: Oh yeah, we all said that, right?
Andrew Weissmann: So I have a question for you, Mary.
Mary McCord: Yes.
Andrew Weissmann: This is like very in the weeds, which I know our listeners will love because if you’re listening to this, you want the weeds. So they’re saying the same argument they made before Judge Cannon in Florida. They’re like, oh, now we want to make it before Judge Chutkan. Let’s leave aside that it’s been over a year that this case has been pending, and now they’re making this motion. It’s very similar to what we’re going to talk about, about the removal —
Mary McCord: Right.
Andrew Weissmann: — which is talk about belated filings. I mean, if you thought he was wrongly appointed, how about making that argument —
Mary McCord: If that were so important —
Andrew Weissmann: — like months and months and months and months ago?
Mary McCord: — it should have been their very first motion to dismiss.
Andrew Weissmann: Exactly.
Mary McCord: Remember, she has ruled on multiple other motions to dismiss already.
Andrew Weissmann: Right.
Mary McCord: But no, and get the date on that. They want to file that October 25th. They want that to then be briefed. Special counsel’s brief, even on that issue, which has nothing to do with immunity, due before the election? No, due after the election, November 8th. So nothing in their proposed schedule would have Jack Smith filing any kind of public briefing until post-election.
Andrew Weissmann: Right. This is basically, and we’re shutting you up.
Mary McCord: Yup.
Andrew Weissmann: So we don’t want to hear a peep.
Mary McCord: Yup.
Andrew Weissmann: But here’s my question for you. The issue of the Jack Smith appointment, that has obviously not been decided by the Supreme court. Judge Cannon is the first judge out of nine courts —
Mary McCord: Of course, yes.
Andrew Weissmann: — I should say, that have ruled on this. Obviously there are many district judges who have ruled that this appointment process is valid, many in D.C.
Mary McCord: And that’s not all with respect to Jack Smith, right?
Andrew Weissmann: Yeah, yeah, yeah. Exactly.
Mary McCord: With respect to some multiple different —
Andrew Weissmann: Mueller and other people.
Mary McCord: Right. Mueller appointed by a Republican attorney general.
Andrew Weissmann: Exactly. And Mueller, exact same situation in the sense that Mueller was outside of the department at the time and brought in the same way Jack Smith was, even though he had been a longtime DOJ employee. He was outside at the time. He was brought in. Everyone said, that’s fine. The D.C. Circuit has said it’s fine. So, Judge Chutkan is actually bound by that.
Mary McCord: That’s right.
Andrew Weissmann: So it’s not like she has discretion and that’s one of the reasons, like no one was thinking of litigating it at the time and we didn’t have the Justice Thomas invitation that was gratuitously shoved into the immunity decision where Justice Thomas wrote this concurrence out of the blue that basically said, you should make this motion.
But here’s the issue. There is a rule that when you are filing something, at least in federal court before, let’s say, a district judge or in the court of appeals, if there is a binding precedent on point, the rule is you have to alert the court to it in your filing.
And remember, when you’re a lawyer in court, you are an officer of the court. And so one of the ethical rules is you can zealously advocate within the rules, but one of them is that if there’s a binding precedent, you have to alert the court to it. I looked long and hard in the filing to see where Trump referenced the fact that there was a D.C. Circuit case. Now, I know, of course, Judge Chutkan’s going to know it, but that’s not the rule. The rule is you have to cite it only if the district court may not be aware of it. The rule is you have to cite it. And I didn’t see it anywhere, did you?
Mary McCord: No, and you know, it’s interesting, because I might have said, well, when you’re just proposing a schedule, maybe the rule wouldn’t apply to that, but they give a rationale for their schedule and in that rationale —
Andrew Weissmann: Exactly.
Mary McCord: — they cite Justice Thomas’s concurring opinion in the immunity case saying as a threshold matter, President Trump will move to dismiss the special counsel’s improper appointment and use of non-appropriated funds, issues that a Supreme Court justice describes as quote, “serious questions that must be answered before this prosecution can proceed.” And they cite Justice Thomas’s concurrence and then they say, and which a district court is found as positive (ph). So the fact is they are citing cases in this status —
Andrew Weissmann: Exactly.
Mary McCord: — yet not saying.
Andrew Weissmann: Exactly.
Mary McCord: And the next sentence should have been, we recognize that the D.C. Circuit has —
Andrew Weissmann: Or the Circuit at least.
Mary McCord: — ruled on that, right. You’re right.
Andrew Weissmann: Right. But they had to, I thought, just drop a footnote and say, obviously we understand that this court is bound to the extent blah, blah, blah, blah, blah, or make some argument of why you think it’s distinguishable, or what, et cetera. Anyway, this is like a little in the weeds. This is so hard. I’ve been in DOJ for so long that these rules are just so ingrained. But I also, I will say when I was a young lawyer, I was at a law firm where they also beat that into us that it’s zealous advocacy within the rules of a profession. And I’m just going to give you one final piece on this. There’s the judge I clerked for. He kept on saying when people say, well, I was hired by, he would be, you’re not hired, you’re retained. And I know it seems like a slight difference, but he said that, and I asked him, like, why, why are you so picky on not using word hired and saying retained? And he said, the reason he did that is because you’re not a hired gun (ph). You’re retained by your client for your independent evaluation and you have an independent obligation to the court as well. And he wanted that sense of the profession to be embodied in the language we use.
So this is like a little, as I told you, in the weeds, but it just struck me as sort of how far we’ve come.
Mary McCord: Yes, there’s no question about it. And particularly for you and I who were government attorneys, I mean, that’s just like always first and foremost in your mind, my candor with the court, my integrity before the court, my reputation before the court, because I speak for the United States. I have many more things to say about this status report.
Andrew Weissmann: Yeah, yeah, yeah.
Mary McCord: But perhaps we should go —
Andrew Weissmann: We should go break.
Mary McCord: — to break and —
Andrew Weissmann: Yeah.
Mary McCord: — come back to it afterwards.
Andrew Weissmann: Sounds good.
(ADVERTISEMENT)
(MUSIC PLAYING)
Andrew Weissmann: So Mary, with that digression, let’s go back. So we have Trump’s position, we have Jack Smith’s position. This Thursday, I’m confident Judge Chutkan will rule, but what else struck you in the filing?
Mary McCord: Right. So, we were talking about the dates, right? He wants to have this motion to dismiss based on unlawful appointment of Jack Smith, all briefed in October, November, with a hearing in December, and it’s not until December 13th that Mr. Trump’s attorneys propose a defense motion to dismiss based on presidential immunity. Again, flipping the script from Jack Smith’s proposal that the government come in and attempt to prove legally through its pleading and factually if necessary, they leave that up to the judge after reading the briefs, prove that what they’re alleging and what they’re charging and what they propose to introduce as evidence is admissible and not in violation of the Supreme Court’s ruling. In other words, it’s all either unofficial or it’s official and the presumption of immunity has been rebutted. This flips this in saying the defense will file its motion to dismiss on December 13th and other motions too, including a supplement to its motion to dismiss based on the Fischer case, the other case out of the Supreme Court that had to do with obstruction of an official proceeding. We want to come back to that. And other motions as well.
Now, I think importantly here is they’re not even suggesting that their motion to dismiss based on immunity cover everything in the indictment. Their view, as they explain in their explanation part of the status report, is that they’re going to win a dismissal of the entire indictment based on the allegations involving Trump’s pressure on Vice President Pence to refuse to count the legitimate electoral ballots from the swing states and instead count the fraudulent ballots or just say we won’t count any of those or send it back to the states or something that means they don’t certify the election of Joe Biden and Kamala Harris back in 2020.
And so what they propose to do first is to file a motion to dismiss, focus specifically on these allegations related to Vice President Pence and what they argue is that if the court determines, as it should, that the special counsel cannot rebut the presumption that these acts are immune, then the entire indictment must be dismissed because the grand jury, even this new grand jury, would have considered immunized testimony and that would taint the grand jury and the entire thing would have to be dismissed.
Andrew Weissmann: And just so it’s clear, so essentially they’re trying to have bite-sized pieces —
Mary McCord: Yes.
Andrew Weissmann: — and have them decided seriatim.
Mary McCord: That’s right.
Andrew Weissmann: So, that’s not normal. Normally, you would say, well, I’ve got this argument, and I could win everything on that, but I’ve also got some other arguments, and you put them all in. You don’t sit there and say, let’s just brief this one, and then let’s see what happens, and then we’re going to brief this one, and let’s see what happens, and then let’s brief this one, and then let’s see what happens.
Mary McCord: That’s right.
Andrew Weissmann: And one thing to your point, which I thought was really interesting that I think people need to focus on, is this idea of flipping the script. Normally, if there’s a challenge to an indictment, you would wait for the defense motion and the government would respond.
Mary McCord: That’s right.
Andrew Weissmann: So it doesn’t sound unusual for the defense to say —
Mary McCord: That’s right.
Andrew Weissmann: — but we’ll go first. The reason that Jack Smith has a better argument here than in the normal case where it’s like, well, wait a second, let’s see what the defense argues and then the government will respond is because the government’s saying, but wait, there are two types of things that need to be addressed here, not just what’s in the indictment, but also the nature of the proof we’re going to use.
So that second piece is not something that the defense knows now. So essentially what the government gets to say is, we’ll put out there not just what’s in the indictment, but also what our proof is, then the defense will have the whole panoply in front of it and can address all of it, because otherwise they’ll start making a motion based just on the indictment.
Mary McCord: Right.
Andrew Weissmann: We’ll set out other stuff, then they’ll have to start again.
Mary McCord: Right.
Andrew Weissmann: So why don’t we just lay out all of the information, then they can put in their brief. So it made sense.
Mary McCord: They’re also responding pretty directly, Jack Smith and his team, to the Supreme Court’s remand. I mean, it’s the logical way to go. But what I love about what you just said, Andrew, is Mr. Trump’s team has a response to that. They say, we do see the benefit to Mr. Trump of the special counsel informing him of his position on certain immunity issues in advance of any evidentiary motion practice. Yeah, we would like to know what it is that you’re going to put in as evidence, but what we think you should do is send us a letter. Send us a letter telling it. And don’t take the form of affirmative briefs or other filings.
And guess what? Most letters between counsel are not put on the public record, are not part of the official docket. They’re just correspondence between counsel. Discovery is often that way. So yeah, send us a letter and tell us what you’re going to introduce, but don’t file it publicly.
Andrew Weissmann: Right. Exactly. Let’s just keep that amongst ourselves.
Mary McCord: Just us. Just us chickens.
Andrew Weissmann: Yeah.
Mary McCord: Last thing before I move on, and honestly, for a 10-page filing, I mean, there’s so much to say. So the thing I wanted to flag, as I already mentioned, the other thing that Trump says he wants to challenge is this indictment on grounds of Fischer.
Now, you may recall that one of the motions to dismiss that Judge Chutkan did decide was a motion to dismiss on statutory grounds that the conduct alleged did not violate various statutes. And in particular, did not violate the obstruction statute. When Judge Chutkan denied that motion and she denied it right after the case came back to her, she made it clear that Mr. Trump could renew that motion after she ruled on all of the immunity issues, right? In fact, her exact words were, Mr. Trump may file a renewed motion once all issues of immunity have been resolved. Another reason, of course, why Jack Smith thought we better file a brief on immunity issues because that’s what the court wants to hear about.
But that issue is one that Mr. Trump is saying, we still want to argue that those obstruction offenses should be dismissed because the Supreme Court has held that they only apply when there’s some sort of obstruction to the integrity of available evidence or information, et cetera, and we’ve talked about that case. One of the things you know, that you and I did not talk about last week —
Andrew Weissmann: Yeah.
Mary McCord: — but have both sort of —
Andrew Weissmann: Honed in on.
Mary McCord: — honed in on, since then, that was added to the indictment, is in particular, there were already lots and lots of allegations about the fraudulent elector scheme, which of course involved the actual certification of pieces of paper, certificates of ballots in places like Arizona and Wisconsin and Michigan and Pennsylvania, Georgia, that were sent up to Vice President Pence in the hope he would count those instead of counting the legitimate electoral ballots. Those ballots were sent up to Vice President Pence and those are what he was supposed to count.
So there were lots of discussion about this scheme, but one of the lines that was added to the new indictment, I think just to make sure we’re talking about a thing here, the Supreme Court didn’t say it’d have to be tangible, but I think Jack Smith thought, let’s make it very concrete what we think was obstructed here, says at approximately 2:20 p.m., and this is on January 6th, the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House was also forced to a rest.
And the clause before that, which had been part of the indictment, talked about how at 2:13, after more than an hour of steady violent advancement, the crowd at the Capitol had broken into the building and forced the Senate to recess. So this is putting crystal clear, both houses of Congress were forced to recess. And the staffers had to physically carry these electoral ballots out of the chamber.
Andrew Weissmann: And totally consistent with what the Department of Justice has been arguing post-Fischer —
Mary McCord: Yes.
Andrew Weissmann: — with respect to other people charged in the January 6 cases, focusing on these electoral ballots and that being a sort of necessary part of the scheme where appropriate to the particular defendant.
So what Jack Smith is doing here by amplifying this is really consistent with what the Department is doing writ-large with respect to the January 6 cases saying why it is still okay in his case and in other cases to pursue this even after the Fischer case in the Supreme Court that documents whether physical or intangible meet the Fischer test.
So again, with something we didn’t focus on last week, but it’s clearly something they thought about, which was how do we meet not just the immunity decision, but also this narrowing of the obstruction charge. It’ll be really interesting to see on Thursday what Judge Chutkan does.
Mary McCord: Yes.
Andrew Weissmann: The only prediction, which is not much of one, is Judge Chutkan is going to rule. I just don’t see her —
Mary McCord: She’s going to set some kind of date. I agree.
Andrew Weissmann: Exactly. This is scheduling.
Mary McCord: She will have had several days to look at this filing. She probably already had somewhat of an idea about what she, I mean, clearly from her denial of the motion we were just discussing, she anticipated briefing on the immunity issues as the first thing that would happen.
Andrew Weissmann: Right. The issue, that sort of elephant in the room, which is whether there will be this so-called mini trial, is one that Jack Smith basically just sort of says, you know, we’re ready for sort of whatever you want. He proposes this briefing schedule where he’s ready to go immediately. And basically says, Judge, after you see all the papers, we’re also happy to do whatever you want. I mean, very much like —
Mary McCord: That’s right.
Andrew Weissmann: — if you think they’re factual issues and obviously that’s something the judge can decide after she sees the papers to see what’s actually being disputed. And Jack Smith says, after you see it, we’re sort of happy to deal with it as you go along. So I don’t think that Judge Chutkan needs to definitively set that on Thursday as to what that happens. It’s possible she would, but she might just say let’s set a briefing schedule. Let me see the papers. And then if we need to have a hearing, a factual hearing, we can do that. Obviously, Donald Trump will be fighting that tooth and nail to not have anything even in paper be submitted, but I think he’s going to lose on that.
Mary McCord: Yeah. And I will just finally note that, you know, some of the things that he’s asking for, like the government does now need to re-review its Brady obligations and discovery obligations in light of the immunity decision and we have other motions to dismiss that we want to bring, I don’t think that that’s wrong for them to ask for that, and I don’t think Jack Smith does either. It’s just they want to do all that as we’ve been discussing in piecemeal bit by bit before they ever get to immunity, mostly I think to avoid a public filing that will say things they don’t want to come out before the election.
But I don’t think those other requests are crazy. And I think Jack Smith even says, basically, yes, they can file all these other motions and they just should be filing them simultaneously with us doing at most —
Andrew Weissmann: Right.
Mary McCord: — simultaneously with us moving forward on immunity in a briefing schedule like that. And I’m sure the special counsel also recognizes, there’s no doubt because I spent a long time, and so did you, at the department, that they need to go back and rethink —
Andrew Weissmann: Of course.
Mary McCord: — in light of that immunity decision, does that trigger a new Brady information? Does that trigger a new discovery? My guess is it’s already all been supplied, honestly.
Andrew Weissmann: Totally.
Mary McCord: But nevertheless.
Andrew Weissmann: Yeah. I mean, I totally agree with you, but having done large cases, there’s such a sort of like, it’s called like basically open discovery, again, because this is all —
Mary McCord: That’s right, because it’s easier.
Andrew Weissmann: — exactly. So this is a great segue. Why don’t we take a break and then turn to on the sort of redux theme. Talk about this very, very belated filing before Judge Hellerstein in the Southern District of New York seeking to remove the New York criminal case to federal court at this very late date. So back in a moment.
(ADVERTISEMENT)
(MUSIC PLAYING)
Mary McCord: Okay, welcome back. As promised, we now want to talk about what has been filed and rejected, I should say. Mr. Trump’s team filed their motion to remove on Friday, was it, or Thursday or Friday? I’m losing track now. And within hours, I think, it was rejected by the court. Unclear whether it was the judge himself who rejected it or whether it was a clerk who rejected it, but rejected this as an amended filing, an amended notice of removal because there was not the consent of opposing counsel, that would have been Alvin Bragg, or the agreement, what’s called leave of court, which means permission of the court. And that’s not uncommon when you’re talking about second or third filings on an issue you’ve already filed once.
Remember, as Andrew mentioned early in this episode, this is the second attempt to remove this case. So because it’s a second attempt, you don’t necessarily get this automatic removal. to federal court that then the parties are there, and that court has to decide whether remand it, you need to seek this permission.
So we are still waiting to see if there will be a new filing by Mr. Trump, whether he will obtain leave of the court or the consent of Mr. Bragg. So the motion we’re now going to talk about is one that right now is not actually pending. And I shouldn’t say motion. It’s a notice of removal that was rejected last week.
Andrew Weissmann: So we have the benefit of seeing what those arguments are because it’s a very lengthy submission, but it has been rejected. If Judge Hellerstein gives leave, and by the way, I think it’s Judge Hellerstein who gives the leave of court —
Mary McCord: I agree. Yes.
Andrew Weissmann: — not Judge Merchan, or Alvin Bragg could also consent to it. And it is a renewed motion. And so the first thing that listeners, before we get to sort of what do they argue, is how the hell? Can I say it? Usually, I’m so —
Mary McCord: That one’s okay. Usually that one’s okay. There’s like the baby curse words and then there’s like the grown up curse words. So that’s why —
Andrew Weissmann: Yeah. That’s why I go with God’s green earth. It kind of covers —
Mary McCord: Yeah.
Andrew Weissmann: How the hell does it get to do it twice? So let me see if I can answer that, which is the argument that Donald Trump has is a partial response to that and partially non-responsive. The partial response to why now and not before is that the Trump immunity decision, the gift that keeps on giving for Donald Trump is the new fact, that that decision, as we’ve talked about over and over again, and even including in this episode, it means that even in a case involving unofficial charges, like personal actions, you cannot introduce certain types of official presidential conduct, which Donald Trump, as we’ve talked about in prior episodes, says did happen in the Merchan criminal case, CEG (ph), Hope Hicks testimony, or tweets he says, or a campaign filing that he made. But he has various allegations about alleged official acts that should not have come in. And so —
Mary McCord: And on that point, Andrew, before you move to the second —
Andrew Weissmann: Yup.
Mary McCord: — what he wants is he wants a federal court ruling. Well, what he really wants is he wants the sentencing delay.
Andrew Weissmann: Yes, of course.
Mary McCord: I mean, that’s the main impetus for this. That’s the entire reason, I think, for the time being because he could have filed this same notice of removal the day after the Supreme Court issued the immunity decision or within a week of that. But he waited and waited until we got these sentencing dates. But his argument then is that, you, federal court, you should be deciding our arguments about why that verdict should be vacated on the grounds of immunity.
Andrew Weissmann: Right, exactly. Because of that decision, he says that is sufficient under the removal statute that it is official conduct and official defense that relates to the prosecution. In other words, the removal statute encompasses and is capacious enough to include this challenge, that this kind of argument about this immunity defense means it should be decided federally. So that’s new.
Mary McCord: And it doesn’t even matter whether the actual charges themselves were official acts. We’ve had lots of discussion about that.
Andrew Weissmann: Exactly.
Mary McCord: Remember this is about —
Andrew Weissmann: Evidence.
Mary McCord: — reimbursing for hush money paid to a porn star, totally a private act. This is about evidence being introduced, but that’s to your point, of related to, and he says hey this whole thing, because of this Trump decision out of the Supreme Court, this whole thing needs to go into federal court for that decision, and that is my good cause, because the removal statute itself we talked about leave of court and consent of counsel, that’s sort of a rule based on second or amended pleadings. But the removal statute itself also has a timing component that notices of removal in a criminal prosecution are to be filed not later than 30 days after arraignment, right? So that’s like, you know, a year and a half or so ago, unless there’s good cause shown.
Andrew Weissmann: Right.
Mary McCord: So he’s pointing to the Supreme Court’s decision as good cause, but he points to another Supreme Court decision as well.
Andrew Weissmann: Yeah, but before we get to that, here’s the reason that that is only a partial answer to sort of like, why does he get to do this now?
Mary McCord: And he might not. Let’s be clear.
Andrew Weissmann: That’s one of his main arguments for why he’s shown good cause, why it’s okay to do this late. And you know what? He would have had a much better argument if he did it immediately or shortly thereafter the Supreme Court decision came down —
Mary McCord: Yes.
Andrew Weissmann: — and say, so this is why it needs to be removed. Instead, there was argument and motions before judge Merchan, the state court judge. And only after all of those got submitted were, by the way, there’s still a pending motion before Judge Merchan to say please put off the September 18th proposed sentencing day. Remember that Judge Merchan said he’s going to decide the immunity issue on the 16th and there’s now a pending motion that has not been decided for the 18th and Donald Trump sort of doesn’t want to hang around waiting for that and decides, okay, I want to have two irons in the fire and sought this removal, but that’s belated.
Mary McCord: Yes. Yes.
Andrew Weissmann: In other words, he hasn’t yet dealt with why did you wait so long to file this motion? And this is like, imagine a scenario where he filed this on the 15th of September. In other words, you can imagine Judge Hellerstein going, you know what, how much leeway am I supposed to give you? If it were anyone else, you’d be like —
Mary McCord: Too late.
Andrew Weissmann: — you needed to snap a doodle.
Mary McCord: That’s right. Yeah. That’s why I say this is all about a desperate effort like there. He is scared of what Judge Merchan is going to say on the 16th and scared he’s going to deny the immunity motion, meaning the motion to dismiss everything and overrule the verdict of the jury based on immunity. He’s worried he’s going to get sentenced, and like you said, wants to take a second way, a second avenue to try to avoid that sentencing at all costs.
Andrew Weissmann: And by the way, Mary, this is why it’s so clear that it’s just about trying to avoid what’s going to happen on the 18th, let alone what Judge Merchan might do on the 16th, is that if this was granted and allowed and permitted, he would get a different judge. He would have Judge Hellerstein and not Judge Merchan. And he spends a lot of time in his filing, the filing that’s not a filing yet, talking about Judge Merchan and all of his conflicts. But you know what? I don’t think he’s going to do any better with Judge Hellerstein. So I really think the strategy here is just delay. Judge Hellerstein —
Mary McCord: Delay.
Andrew Weissmann: — is a really experienced, very good judge who wrote an extremely good decision rejecting the first removal attempt and he doesn’t suffer fools gladly. And so I don’t think it’s really about picking a different judge, which, you know, normally you think what does he get out of this going from Judge Merchan to Judge Hellerstein isn’t like a huge plus, but what he does get is delay because the idea that Judge Hellerstein would be able to do all of this that quickly seems —
Mary McCord: Can’t tell (ph).
Andrew Weissmann: — right. Exactly. And just to be clear, the arguments for immunity, just so people understand, if this case were to stay in state court, it’s not like the immunity issues don’t get ruled on by Judge Merchan and then get to be appealed by Donald Trump to the extent that he’s not happy with them, up to and including the highest courts in New York, that the appellate courts, even the highest court, which is ironically called the Court of Appeals in New York, even though that’s the highest court.
Mary McCord: Right.
Andrew Weissmann: Normally, I think in almost every other state court, the highest court is called the Supreme Court, but in New York —
Mary McCord: Not D.C., but it’s not a state.
Andrew Weissmann: Exactly. So, but anyway —
Mary McCord: And then ultimately he could try in the Supreme Court, the U.S. Supreme Court, yes.
Andrew Weissmann: Meaning that you still have a venue to do all of this. It’s not like if you stay in state court, you don’t get to appeal all of this.
Mary McCord: That’s right. But. I do want to mention because the good cause in this notice of removal was not based solely on immunity. There’s two other creative arguments, I think, based on two other Supreme Court decisions from this term.
One is the Trump v. Anderson case. Remember, this was the case about whether the former president was disqualified from being on the ballot and that a state court could make the decision about his disqualification under the 14th Amendment, Section 3, which basically makes ineligible someone who is engaged in an insurrection or rebellion against the Constitution. The Supreme Court there basically said states, you can’t make that decision for a presidential election.
So one of the other reasons that they’re seeking removal, and I’m just going to read this line, is that case emphasized federalism principles that are necessary to the application of the Supremacy Clause in connection with federal officer removal because remember, the removal statute is about if you’re being prosecuted because of official acts you did under color of law, meaning as part of your official responsibilities, in his case as President of the United States, you may have defenses that should be in federal court. So that’s called federal officer removal.
The Supremacy Clause is the clause of the U.S. Constitution that basically says the U.S. law is supreme. So if it is in conflict with state law, it is supreme, it wins. I hate to use the term, trumps. So what they’re saying is, that that case, which was Trump v. Anderson, emphasized these federalism principles and that because New York’s power over governance does not extend to federal officeholders and candidates, New York district attorneys’ flawed theory of unlawful influence in the 2016 presidential election cannot be adjudicated under state law.
They don’t say a whole lot about this, but their argument is that case means this case against Donald Trump that was based on this theory, remember, it’s technically about falsifying business records, but the reason for it and the underlying what makes it in part what made it a felony was because it was an effort to actually interfere with and influence the 2016 election. That, they think needs to be in federal court.
That last point goes to the third reason they give, which is that another Supreme Court case called Lopez Bright (ph) is one that got rid of a concept called Chevron. Not a concept, a rule based on an old 1980s case called Chevron, which was about deferring to federal agencies in the interpretation of federal law. The Supreme Court said, we’re not gonna defer anymore, we’re gonna look at the plain language of the federal law, and it’s for courts to decide what federal law means.
So you’re like, Mary, what on earth does this have to do with the case before Judge Merchan? The theory here was, Donald Trump argued that federal election law preempted or prevented the trial in this case on the theory that underlying the false business records was a violation of federal election law.
Now remember, it was also alleged to be a violation of state election law as well as other state laws. But one theory was that it was a violation of federal election law and there was a reliance on federal regulations promulgated by the federal election commission that is a federal agency and those regulations saying it’s not preempted. I know that’s a long and convoluted argument. So what Trump is trying to say —
Andrew Weissmann: Mary, that’s was my reaction to reading it, which was like, really?
Mary McCord: Yeah. So Trump’s argument is, oh, we don’t have deference anymore, so you can’t defer to the FEC’s regulation, we get a new trial.
But again, they didn’t spend a whole lot of time on this, but there it is. And I say this all because here we are, we’re grasping at everything. You know, we have three Supreme Court cases that give us good cause to come in here after the trial, days before the sentencing and try to get this case removed.
Andrew Weissmann: And from their perspective, it’s putting in as many irons in the fire as possible —
Mary McCord: Yes.
Andrew Weissmann: — and as many avenues as possible. It’s why I still think that I’m not sanguine that there will be a September 18th sentencing.
Mary McCord: I don’t think there will.
Andrew Weissmann: Either because Judge Merchan himself will put it off out of fairness principles or —
Mary McCord: And because the D.A. said, I defer to you.
Andrew Weissmann: Exactly.
Mary McCord: D.A. didn’t even argue you need to go forward.
Andrew Weissmann: Right. He didn’t argue forward. He didn’t run against. And if Judge Merchan doesn’t do it, there are various appellate avenues left for Donald Trump. So it’s going to be an exciting week.
Mary McCord: It is.
Andrew Weissmann: And I’m really interested to see Judge Chutkan’s responses. You know, we’re in front of a really great judge, so it’ll be interesting to see how she deals with it. So Mary, welcome back post Labor Day, getting into the fall season. Lots and lots to continue. That seems to be the legal track is getting —
Mary McCord: Things are getting going again.
Andrew Weissmann: Exactly.
Mary McCord: Things are getting going again.
Andrew Weissmann: So there’s the political track, the legal track. It all seems to be coming to a head.
Mary McCord: Yes, and look forward to next week, where we’ll talk about exactly what does happen in court this week.
Andrew Weissmann: Okay, in the meantime, you’ll be working on your Katharine Hepburn impersonation.
Mary McCord: That’s right.
Andrew Weissmann: Okay, so —
Mary McCord: Going to go study some script.
Andrew Weissmann: Okay.
Mary McCord: Well, this is a big one, though so I’m going to have to put this high on my priority list.
(MUSIC PLAYING)
Andrew Weissmann: Hi, this is Andrew Weissmann. After Mary and I wrapped today, there was a filing, a short filing, by the district attorney in the Manhattan criminal case. So that may be why you’re saying, he doesn’t sound like Andrew Weissmann. That’s because I’m at my office at NYU where I jumped on with our wonderful MSNBC production team to describe to you what the D.A. is saying in that filing, which is a very short one-page response that was filed before Judge Merchan, that is in the New York criminal case, not to Judge Hellerstein, who hasn’t actually accepted the Trump filing yet.
And basically what the D.A. says is, he doesn’t weigh in on the merits or the lack of merits of the filing for Judge Hellerstein, because that’s not really for Judge Merchan to decide. And so what the D.A. says is, I just want to remind you, Judge, that there is no stay that is in effect while a removal petition is pending, meaning that the two motions that are pending before Judge Merchan, and that is the immunity motion and also Donald Trump’s request to have a stay of his sentencing date to have that put off of September 18th, that those can go forward and the judge should go ahead and issue his decision on both of those. And there’s nothing about a removal petition that would in any way stay that. The only thing that would be stayed is if the removal is accepted by Judge Hellerstein, then while that is being decided, there could not be a final entry of judgment in the New York case. But that’s not something that essentially needs to be decided right now and could be put off to later.
So anyway, that’s the latest. Well, still, Mary and I will keep an eye out for anything that happens on this and all the other events to keep you up to date. So thanks so much and take care.
(MUSIC PLAYING)
Andrew Weissmann: So thanks for listening and remember that you can subscribe if you choose to MSNBC Premium on Apple Podcasts and you can get this show and other MSNBC originals ad free. So that’s one of the advantages. And the other is when you do subscribe, you’ll also get occasional bonus content from this podcast and other podcasts. In fact, Rachel Maddow just released a premium bonus episode of her “Ultra Podcast.” You can listen to Rachel on that premium episode discuss season two of “Ultra” with U.S. Ambassador Deborah Lipstadt, President Biden’s special envoy to monitor and combat anti-Semitism. They discuss the roots of anti-Semitism, how it’s taken hold in America and across the world, and the U.S. government’s efforts to weed out this persistent virus.
So you can listen to that and other great content by subscribing to MSNBC on Apple Podcasts right now, and that’s the premium. But you can always listen to Mary and me for free at any time you choose on any device that you’re listening to.
Mary McCord: Every week. That’s right. And don’t forget 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 Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio, and Rebecca Kutler is a senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcast and follow the series.