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make the difference. Hi,

0:25

and welcome to prosecuting Donald Trump. It

0:28

is Friday, April 26. We

0:31

usually give the time, but I don't

0:33

think it's that necessary. But it is

0:35

before the 930 start

0:37

of the trial today. So we

0:39

won't be covering anything that's happening

0:41

today on Friday, but we will

0:44

be covering a lot of news

0:46

that happened yesterday. I'm Andrew Weissman,

0:48

and I'm here with my wonderful

0:50

co-host, Mary McCord. Well, good

0:52

morning, Andrew, and that's right. We

0:55

will spend probably a pretty significant

0:57

portion of today's episode talking about

0:59

the Supreme Court argument yesterday on

1:01

Donald Trump's immunity claim made in

1:04

his federal case being prosecuted in

1:06

Washington, D.C. by Jack Smith, the

1:08

special counsel. That's the case that

1:10

charges numerous criminal violations related to

1:13

the January 6 efforts

1:15

to prevent the peaceful transfer to

1:17

power. We will also hit, of course, the

1:19

highlights from the last few days of testimony

1:22

in the Manhattan trial. David Pecker has been

1:24

on the stand pretty much all week, and

1:26

will be on the stand today. He is,

1:28

of course, the former CEO of

1:30

American Media, which ran the National

1:33

Enquirer and other tabloid-type magazines.

1:35

Should we start with some framing of what

1:37

was in front of the Supreme Court yesterday,

1:39

and then I'm really anxious to kind of

1:41

make a few top-line points about what I

1:43

took from the argument, and I'm sure you are too, Andrew.

1:46

Yeah, and we have actually not had a

1:48

chance to talk about it. So I'm dying

1:51

to hear your take. You know, one of

1:53

the things that will keep this moving is

1:55

I have left my venting on MSNBC.

2:00

where I was sort of on like morning,

2:02

day, and night yesterday. And so I feel

2:05

like I've sort of expunged that. Expunged the

2:07

word that the chief used many times yesterday.

2:09

I think that just got in your head.

2:11

Expunge, expunge. We'll get to that. Exactly.

2:14

I have watched and heard a

2:16

lot about people's reactions to the

2:18

argument. And I think it's useful

2:20

to go back to basics as

2:22

to what was at issue because

2:24

I think people are also very

2:26

fixed on the trial versus what

2:28

legal standard the court could come

2:30

up with that could be devastating

2:32

for this country. So just very big

2:35

picture, I'm in a very, very depressed

2:37

mode because I think this is the

2:39

decision in terms of what will happen

2:41

to our democracy. I mean, I can't,

2:43

I know that sounds like pretentious and

2:45

grandiose, but it's sometimes the right way

2:47

to think about something. And you know,

2:49

that's on top of a lot of

2:51

other cases in the Supreme Court that

2:53

are pretty troubling right now where the

2:55

arguments were waiting. So it's not just

2:57

this case. I mean, this case I

2:59

think is really significant, really, really significant,

3:01

but it's been a rough several

3:04

weeks of listening to Supreme Court arguments. Yeah.

3:07

I'd say a rough term. Yeah. And that's

3:09

not even if you even go way

3:12

beyond this sort of Trump related one

3:14

that is called patient motion, the obstruction

3:16

decision that we've talked about both of

3:18

those, but you can obviously go to

3:20

the end of the administration, right? The

3:22

end of the administration state and then

3:24

back to Dobbs overturning Roe v. Wade.

3:27

I mean, it's just on and on

3:29

and on. I mean, it's just incredible.

3:31

But anyway, we are just great friends.

3:33

Yeah, we digress. Okay. So it's useful

3:35

to remember that what Donald Trump's counsel

3:37

was arguing was that unless and

3:39

until a president is impeached

3:41

by the House and convicted

3:44

in the Senate, he cannot

3:46

be criminally charged for official

3:48

acts in office. For things

3:50

in his words, things done

3:52

within the outer perimeter of

3:54

official acts. So a very

3:56

broad, expansive reading of official

3:58

acts. Yes. Exactly. that was the

4:00

second part. Like how do you define

4:02

official acts which is it's outer perimeter.

4:05

So very, very broad. So for

4:07

instance, if you were presumably engaging

4:09

in bribery, but you as a

4:11

president, but you use your office,

4:14

which is almost necessary for the

4:16

bribe, he could say, well, that's

4:18

within the outer perimeter of his

4:20

presidential duties. So but that's sort

4:22

of the devil's in the details

4:24

as to how you defined official

4:26

acts. But he was

4:28

based in criminal immunity for official

4:30

acts to find us the outer

4:33

perimeter of the duties of the

4:35

presidency. And less than until there

4:37

is a impeachment for which you

4:39

are convicted. No one

4:41

was arguing, including Donald Trump,

4:44

that private acts could be

4:46

subject to criminal immunity. So

4:48

that's really important. That

4:51

was not an issue. And the reason I'm

4:53

sort of framing that is because a lot

4:55

of our discussion comes back to, oh, look,

4:57

they could get away in here, could get

5:00

a win by going for with private acts.

5:02

And that's like, that's a given that was

5:04

not argued. Now, there is an issue about

5:06

what is the devil in the details. And

5:09

let's come to that, right? We'll come to

5:11

that in a bit. The devil in the

5:13

details is what is private, what is outer

5:16

perimeter and what's the standard that the court

5:18

would use. But I think that framing is

5:21

important. And then what Michael Drieben was

5:23

arguing for Jack Smith, and actually he

5:25

was actually arguing for the Solicitor General.

5:27

He was very clear that he was

5:29

there very much on behalf of the

5:31

Department of Justice, not just within the

5:33

special counsel's office. And he said, because

5:35

it's such an important issue, it goes

5:37

way beyond the issue of just what

5:40

happened in the special counsel case. And

5:42

of course, you can't think of anyone

5:44

better than Michael Drieben, given his incredibly

5:46

long tenure, you and I both know

5:48

him and I've dealt with him, he's

5:50

a superb, wonderful lawyer. And

5:53

he was arguing that obviously private

5:55

matters are something you can, of

5:57

course, be prosecuted for. that

6:00

again, that was a given. And

6:02

with respect to official acts,

6:05

his view was there is

6:07

a small group of matters

6:09

within the core unique functions

6:11

of the presidency for which

6:13

a president could not be

6:15

criminally charged. And by that

6:17

he meant things that are

6:19

committed to the president by

6:21

the Constitution, like the pardon

6:23

power, right? The power to

6:25

make recognized foreign governments, the

6:27

power to veto, things that

6:29

the Constitution gives him directly

6:31

and explicitly. And uniquely. And

6:34

uniquely. Not shared with

6:36

other branches. And he said, so leaving

6:38

that small core group aside where he

6:40

said there would be immunity. He didn't

6:43

call it immunity. He just said that

6:45

if there was a criminal statute that

6:47

sort of infringed on those core duties

6:49

of the president, that is one that

6:51

would not be able to be prosecuted.

6:54

Exactly. And whether you call it immunity

6:56

or whether you say the statute would

6:58

be unconstitutional as applied to him.

7:00

Absolutely. So then you deal with

7:03

what do you do with the

7:05

rest of it? And the position

7:07

was that for criminal prosecution, that

7:09

you can have a criminal prosecution

7:12

for, especially when you have public

7:14

acts, sort of official acts for

7:16

private gain was the way he

7:18

kept on sort of phrasing it.

7:21

And of course, this indictment now

7:23

turning to the specifics, he said

7:25

this indictment obviously doesn't fall into

7:27

that small core category. And

7:30

yes, there are parts of the indictment

7:32

that are pure private, but even if

7:34

there's parts that relate to some official

7:36

acts. Things that he used the official trappings

7:39

of his office to do. Right.

7:41

Such As you could argue that threatening

7:43

criminal prosecution to Brad Raffensperger on the

7:45

tape, this didn't come up yesterday, but

7:48

that's obviously using his official office. Well,

7:50

what did come up? I Read the

7:52

thread of it. What Michael Draven Specifically

7:54

talked about is the content of that

7:57

call. I Just need you to find

7:59

me. Lavender thousand something votes

8:01

and change that arguably that called

8:03

a reference burger Mister Trump's attorney

8:05

says that's purely official act. Michael

8:07

Gb the not give that up

8:09

and agree that was purely how

8:11

south east but he said you.

8:13

Know you can look at the content of that and

8:16

see. That Mister Trump was doing that in

8:18

his capacity as a candidate, not as a

8:20

whole dress the office of the President, which

8:22

gets us to one way of drawing lines,

8:24

but at any rate exactly that. That sort

8:26

of the devil's in the details as what

8:28

is official. what is not as I saw

8:30

three Week. That's this, the setting of the

8:33

scene And so that let's talk about the

8:35

argument. I'm Mary, I know you're loaded for

8:37

bear, so what'd you think? So I have

8:39

just sort of three points and then one

8:41

sort of take away First is and isn't

8:43

just the overarching things I took from the

8:45

arguments. First is, I didn't

8:48

see really any appetite from

8:50

any one of the nine

8:52

justices for Mister Trump's argument

8:55

that he is absolutely immune

8:57

from prosecution for anything done

8:59

within the outer perimeter of

9:01

official acts Because even Justice

9:04

Alito. Said there could be some

9:06

things that you do as official acts

9:08

and is example a seal team. Six

9:10

ordering Seal Team Six to murder

9:12

a political opponents. He said there

9:15

are some things that are just

9:17

it wouldn't be plausible to say

9:19

that their legal and in fact

9:21

we can hear exactly what he

9:23

said about this from the argument.

9:26

Well, I mean, one might argue that it

9:28

isn't. Plausibly we going

9:31

to order Seal Team Six. Am

9:33

I. I? I don't want to

9:35

slander Seal Team Six me himself.

9:37

Seriously, they're on almost there honorable

9:40

ah and they are bound by

9:42

the Uniform Code of Military Justice

9:44

not to obey unlawful orders. But

9:46

no more ice As in one

9:48

could say that some plausible that

9:51

is legal with an action would

9:53

be legal and and I'm sure

9:55

you find one have lots of

9:57

a difficult I'm sure you Firefly.

10:00

The hypothetical of were president could

10:02

say I'm using an official power

10:04

and yet the president uses that

10:06

and absolutely outrageous manner. So.

10:09

Okay, see you can hear in that clip

10:11

of Even Justice Alito that some things might

10:13

be just too outrageous that even if you

10:15

used to be so power they wouldn't be

10:17

absolute mint sense of first take away. I

10:19

did. When it's it's One thing

10:21

that's interesting is that doesn't deal

10:23

with the text of the constitution.

10:25

This history of the constitution prior

10:27

case saw the history as O

10:29

L C opinions, opposite legal counsel,

10:31

opinions and sort of how the

10:33

country is actually viewed as in

10:35

the past and the standard plausible.

10:38

I'm a great. That that is. My

10:40

point was not that this is a test

10:42

that I think is going to be the

10:44

test. My point was I didn't see an

10:46

appetite for any of the nine to say.

10:48

You get a free pass for absolutely

10:50

everything you do that has the trappings

10:52

of official power on it. although that

10:55

is blind. Who gets close? Yes, yes.

10:57

But Mr. Trump's attorney, even with the

10:59

leaders hypothetical, wasn't willing to give that

11:01

up So big he really does, you

11:03

know, essentially believes that the Fitzgerald test,

11:05

the test borrowed from civil laws of

11:08

civil cases, is the right tests. Which

11:10

is, if it's within that outer perimeter,

11:12

you don't question it against immunity, so

11:14

even his own attorney wasn't willing to

11:16

adopt or except the test alito. Proposed.

11:18

Okay, so nobody really wants to

11:21

give complete absolute immunity dollars. Dislikes:

11:23

the second sort. A big take

11:25

away his and this came out

11:28

time and time again. and I'm

11:30

gonna use little air quotes. Hear

11:32

the conservative justices and and particularly

11:34

here talking about course it's Alito

11:37

and Cavanaugh because Thomas was quite

11:39

quiet yesterday. Very few questions, but

11:41

the other three were very concerned

11:44

or expressed at least that they

11:46

were concerned about. The chilling

11:48

effect. On. presidents if

11:50

they think they could face criminal

11:52

prosecution essentially they were buying in

11:55

to mister trump's argument on this

11:57

that at would sell them from

11:59

taking board and that is needed

12:01

as a president because of concerns

12:04

that then the next president would

12:06

prosecute them. And wouldn't that even

12:08

lead to every president on the

12:10

last day of office pardoning themselves

12:13

for any potential prosecution? On the

12:15

flip side, the quote-unquote liberal justices

12:17

were concerned about if there is

12:20

criminal immunity for things, you know,

12:22

within the outer perimeter of official

12:24

acts of a president. And again,

12:26

with this expansive, expansive reading of

12:29

official acts, wouldn't that just

12:31

essentially turn the presidency into an

12:33

opportunity to commit all kinds of

12:36

crimes with a reckless abandon? And

12:38

in fact, we have another clip

12:40

from Justice Katanji Brown Jackson making

12:43

this very point. Also,

12:46

let me put this worry on the table.

12:48

If the potential for criminal liability is taken

12:50

off the table, wouldn't there

12:52

be a significant risk that future

12:54

presidents would be emboldened to commit

12:57

crimes with abandon while

12:59

they're in office? Wouldn't

13:01

you struck Mary on that point? Because

13:03

I think that it was almost like

13:05

a policy debate in Congress. But

13:08

among the justices. But among

13:10

the justices where what was

13:12

missing from that was the

13:14

text of the Constitution, the

13:17

intent of the framers, the

13:19

history in the United States.

13:21

I mean, it was so

13:23

belied, the originalism, textualism, credo

13:25

of the so-called conservative justices.

13:28

It was completely absent. It

13:30

was just a policy debate.

13:32

And then even within that

13:34

policy debate, what was missing

13:37

from the conservative justices was

13:39

any record support in

13:41

terms of 200 years of history. You

13:45

cannot look at 200 years of

13:47

history and say, we really have

13:49

to come up with a standard

13:51

for criminal immunity because all hell

13:53

is breaking loose. Everyone will be

13:55

chilled. Exactly. And Michael Jieben made

13:57

that point. That's right. Basically said

13:59

our system. system has worked pretty well. It's

14:01

not perfect but we've never had

14:03

this before except arguably we had

14:05

a problem with Nixon, not arguably.

14:07

There was a problem with President

14:09

Nixon and this case. And by

14:11

the flip side, when the conservative

14:13

attack on the response from Dreeben

14:16

and those so-called liberal justices which

14:18

is there are many, many checks

14:20

in the system already to prevent

14:22

that from happening, there's no... Layers

14:24

of protection, he called it, right?

14:26

There's no history of it but

14:28

there are layers of protection and

14:30

basically the history shows it's working.

14:32

It was remarkable to me the

14:34

antipathy towards the actual criminal justice

14:36

system that you were hearing from

14:38

Alito and Gorsuch which was Alito

14:41

saying, you know, you can indict

14:43

a ham sandwich. Right. I

14:45

mean, this is our criminal justice system. That

14:47

is also not true. I understand

14:50

saying just good faith of people at

14:52

DOJ is not enough. I totally agree

14:54

with that. But it is a layer

14:56

but it is not sufficient. Yes, necessary

14:58

but not sufficient. But to sit there

15:00

and denigrate the whole grand jury system,

15:02

you know, I can think of cases

15:05

where a partisan Department of Justice has

15:07

sought a criminal prosecution and the grand

15:09

jury has not gone along and that

15:11

was during the Trump administration. But there's

15:14

more than that. You're then a criminal

15:16

defendant with all of the rights that

15:18

this Supreme Court has given them. Has

15:20

given them. And

15:23

then you have to prove the case beyond a

15:26

reasonable doubt. In other words, facts matter.

15:28

And the denigration of this

15:30

including we can't make a test

15:32

based on intent and motive because we know

15:35

how flimsy that is. And we know criminal

15:37

statutes are vague. I mean, the... You can

15:39

find a criminal statute to prosecute anybody you

15:41

want to prosecute. It was essentially what some

15:44

of them seem to be saying. And without

15:46

facts and ignoring

15:48

the fact that there's a jury that

15:50

has to find proof beyond a reasonable

15:53

doubt unanimously, it was remarkable to me

15:55

that you had people sitting in the

15:57

Supreme Court denigrating the entire... infrastructure

16:00

and edifice of our

16:02

criminal justice system that they are a

16:05

huge part of creating. Right. And

16:07

I teach Fourth Amendment and Fifth Amendment

16:10

law. The Supreme Court has gone out

16:12

of its way to be pro-law enforcement

16:14

in its rulings and very much puts

16:16

its thumb on the scale. And so

16:18

suddenly to be, oh, we're all different,

16:20

right? Not all, but yes. Not

16:23

all, but there's a lot of... But the

16:25

point is they rule on major criminal

16:27

cases every term. They develop the law.

16:29

The law that is developed in the

16:31

Supreme Court is what apply to all

16:33

prosecutors, whether it's Fourth Amendment, Fifth Amendment,

16:35

Sixth Amendment, and they seem to be

16:37

expressing some a lack of faith in

16:39

the protections that that system provides exactly

16:41

as you've laid out. I think what

16:43

else is interesting about those positions about

16:45

one group of justices worried

16:47

about the chilling effect of there not

16:50

being immunity, the other worried about the

16:52

emboldening effect of immunity is both seem

16:54

to suggest that the status quo we've

16:56

had for these 200-something years

16:59

is different. Like Mr. Trump's attorney is like, our

17:01

status quo has been that there is immunity. And

17:03

the other side is like, no, our status quo

17:05

has been that there's never been immunity. And I

17:07

thought that was sort of an interesting thing. Now,

17:09

his point on there's always been immunity is there

17:11

has to have always been immunity because it's never

17:13

happened that we've had a criminal prosecution of a

17:15

president before. The other side is there hasn't been

17:17

one because nobody's done anything like what Mr. Trump

17:19

has done. Third big point, and

17:21

then we'll go to break and come back

17:24

and talk about it because I think this

17:26

is the main sort of where, you know,

17:28

the rubber meets the road is the main

17:30

event is there will be a remand for

17:32

line drawing. And the question is,

17:34

how will that line be drawn? That

17:36

line between, as you indicated in the

17:38

framing, purely private acts that

17:40

even Mr. Trump's attorneys agree

17:42

he could be prosecuted for

17:44

and whatever other thing, whether

17:46

it's core executive functions, whether

17:48

it's some level of official

17:50

acts, whether it's outer perimeter

17:52

official acts, whatever that other

17:54

thing is where there might

17:56

be immunity, where's the line

17:58

between them? And I think

18:00

that's where most of the argument focused.

18:03

And I think there's going to be

18:05

a lot of dispute and debate between

18:07

the justices on that, which is why

18:09

I'm not optimistic that we'll get a

18:11

decision until the very end of June

18:14

or beginning of July. But we can

18:16

talk about that when we come back

18:18

from the break. Okay. At

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listening. So,

19:36

Mary, let's pick up with your

19:38

last point about if the Supreme

19:40

Court sends the case back, remands

19:42

it for a hearing. There

19:44

were lots of different proposals out there in

19:46

terms of drawing that line. I think one of

19:48

them that was brought up by justices

19:50

both during Mr. Sowers argument, he

19:53

was the attorney representing Mr. Trump,

19:55

and Michael Drieben's argument, he was

19:57

the attorneys we've already noted representing

19:59

the government. One of the ways

20:01

of line drawing that kept coming up

20:03

is the way that had been suggested

20:05

by the DC Circuit in the civil

20:07

cases brought against Mr. Trump by

20:10

Capitol Police officers and members of

20:12

Congress for injuries suffered as a

20:14

result of January 6th. And

20:16

in that case, that case called Blassing

20:18

Game, and that name came up throughout

20:20

the argument. That test was really about,

20:22

it was about immunity from civil prosecution.

20:24

I'm going to use the word even

20:26

though we tend to think of prosecution

20:28

in the criminal sense. And

20:31

because again, Fitzgerald, this old case

20:33

we've been relying on and talking

20:35

about for months says that presidents

20:37

are immune from civil liability for

20:39

actions taken within the scope of the outer

20:41

perimeter of their official acts. So the question

20:43

in Blassing Game is what things were Mr.

20:46

Trump's official acts and what things weren't. And

20:49

the way the DC Circuit sort of broke it

20:51

down in Blassing Game was whether Mr. Trump was

20:53

doing something as an office holder or an office

20:55

seeker. So in other words, was he doing it

20:57

because he's the president and this is within the

20:59

scope of my duties as president, or was he

21:02

doing it because he was a candidate and he

21:04

was doing it because he was running for office?

21:07

And the test they said is you have to

21:09

look objectively at the whole context. When

21:11

he is speaking, for example, is he speaking

21:13

at an event that is a political event that's

21:15

paid for by like the political party

21:17

or is it an official, you

21:19

know, US government event where he's

21:21

speaking on behalf of the administration

21:23

announcing some policy issue or whatever.

21:26

You look at other sort of

21:28

objective contextual criteria like that to

21:30

determine whether it's as a candidate

21:32

or as the president. And

21:34

there were things noted like in

21:36

the litigation when Mr. Trump went

21:38

to the Supreme Court back in

21:40

2020 over into 2021 to challenge

21:42

the election fraud, he signed, you

21:44

know, things as candidate. I mean, it

21:47

was representative that he was in his position

21:49

as a litigator as a candidate. So these

21:51

are kind of the objective facts you would

21:53

look at. And so there were a lot of questions about

21:55

is that the right test? Is that how we should be applying

21:57

it? And very much also considering case.

21:59

Can you consider, as Justice Gorsuch

22:02

phrased it, motive, as Michael

22:04

Drieben phrased it, not motive

22:06

but intent. Right. And

22:08

purpose. And purpose, yes. And Michael

22:10

Drieben was saying that if you

22:12

are doing something using your public

22:14

office but for private gain, that

22:16

should count in the same way

22:18

as we talked about if you

22:20

are using your public office to

22:22

coerce Brad Raffensperger to do your

22:24

bidding. If you're using your public

22:27

office to coerce the Department of

22:29

Justice to say that there is a

22:31

fraud investigation, that is, of course, you

22:33

can call the Department of Justice but

22:35

you're entitled to consider what the purpose

22:37

was, what the goal was, what your

22:39

intent was. So that very

22:41

much double in the details. Can I

22:43

just add on your point about Michael

22:45

Drieben talking about, you know, you can

22:47

be using sort of the trappings of

22:49

your office for private gain. He actually

22:51

said he thinks in the government's view,

22:53

this makes it even worse, right? It's

22:56

not, it doesn't make it like more

22:58

protected as official acts. It makes it

23:00

even worse and less protected and more

23:02

criminal because you're using the trappings

23:04

of your office for private gain.

23:06

So that led to sort of

23:08

a fascinating exchange that I think

23:10

got everyone all excited in the

23:12

sort of legal analyst sphere but

23:14

I think really has people going

23:17

down the wrong rabbit hole, which

23:19

was a very good line of

23:21

questioning from Amy Coney Barrett who

23:23

sort of, I think if any

23:25

justice sort of came up surprising,

23:27

she did not seem to be

23:29

buying what Donald Trump's counsel was

23:31

advocating. And she

23:33

questioned Trump's counsel about, let me

23:35

go through some of the key

23:38

things that are alleged in the

23:40

indictment and that the government's counsel

23:42

says, our private conduct, do you

23:45

agree? And for some of

23:47

them, he did agree. That's right. And

23:50

so let's play that. And I want to know if

23:52

you agree or disagree about the characterization of these acts

23:54

as private. A petitioner

23:56

turned to a private attorney, was willing to

23:58

spread knowingly false claims of election. fraud to

24:00

spearhead his challenges to the election results.

24:02

Private? As alleged, I mean, we

24:04

dispute the allegation, but that sounds private to me. Sounds

24:07

private. Petitioner conspired with another private attorney

24:09

who caused the filing in court of

24:11

a verification signed by a petitioner that

24:13

contained false allegations to support a challenge.

24:15

That also sounds false. Three

24:17

private actors, two attorneys, including those

24:19

mentioned above, and a political consultant

24:22

helped implement a plan to submit

24:24

fraudulent plates of presidential electors to

24:26

obstruct the certification proceeding, a petitioner,

24:28

and a co-conspirator attorney directed that

24:30

effort. You write it quickly.

24:32

I believe that. Private, I don't want to... So

24:35

those acts you would not dispute. Those were

24:37

private, and you wouldn't raise a claim that they

24:39

were official. As characterized. We would say, Your Honor, if

24:41

I may, that what we would say is official is

24:43

things like meeting with the Department of Justice to deliberate

24:45

about who's going to be the acting attorney general of

24:48

the United States. Sure. Communicating with the

24:50

American public, communicating with Congress about matters of

24:52

enormous... Thank you. Thank

24:54

you. Obviously, the key there

24:56

is the concession, because the legal

24:59

principle of being able to criminally

25:01

go forward with something that is

25:03

purely private, as we pointed out,

25:05

was not

25:07

at issue. So everyone's like, Oh, this

25:09

is great. They could rule that you

25:11

can go forward on private matters. Well,

25:14

that means they'd still be precluding... It

25:16

all depends on what they view as

25:18

private versus public, and they would be

25:21

precluding, at the very least, not evidence,

25:23

but charges that are viewed as official.

25:25

So for instance, the allegations with respect

25:28

to the Department of Justice are the

25:30

ones that Michael Drieben is saying we

25:32

should be able to use, because he's

25:34

using his public office for private gain.

25:37

But that's sort of the ballgame. And

25:40

so yes, there is a way that

25:42

this case will proceed, because there's some

25:44

private matters here, unless the court just

25:46

says that they even disagree with Trump's

25:48

counsel, that they're private, but I don't

25:50

think they could go there. So that

25:52

they'd be able to proceed on the

25:54

private matters, but that still would be a

25:56

ruling with respect to public matters and how

25:59

they describe it. what is official conduct.

26:01

Or official conduct, I'd say, rather than public matters.

26:03

Yeah. Sorry. Yeah.

26:06

Bad phrasing. So to me, it's like, yes, there may be

26:08

a way to go forward with a smaller case. It

26:11

remains to be seen how much

26:13

smaller, depending on how they define

26:15

things. But that's still a ruling

26:17

that doesn't deal with the SEAL

26:19

Team Six hypothetical, the Justice Kagan

26:22

hypothetical, which is just like Judge

26:24

Pan, about what if the president's

26:26

engaging in a coup. And

26:28

obviously, something that they could use their

26:30

trappings of office. It could be described as

26:32

official conduct, unless Justice Alita is going to

26:35

say it's not, quote, plausible. Right. I

26:37

mean, that's an odd test, to say the least.

26:39

I think that is what he would say about

26:42

a coup, though. But to get back, you know,

26:44

for our listeners to know what is the ramification

26:46

of this, right? Amy Comey

26:48

Barrett specifically sort of said, couldn't you go forward

26:50

to Mr. Sauer? Couldn't the government

26:52

go forward on these private acts? And then that's

26:54

what led to her, as we just heard, going

26:56

through what private acts are. So then the question

26:59

really becomes, can the government still

27:01

use evidence of things within the

27:03

official, quote, unquote, whatever is within

27:05

the official acts of a president,

27:08

I'm going to say using the

27:10

official trappings as evidence of

27:12

knowledge and intent to prove

27:14

up the criminality of the

27:16

private acts, as opposed to,

27:18

as you just indicated, if the court were to

27:21

say certain official acts are out of bounds or

27:23

immune, he couldn't use them to establish

27:25

criminal liability as to those official acts.

27:27

But the question becomes, can you use

27:30

the official acts as evidence? And this

27:32

is where I think there really is,

27:34

I think there are

27:36

five votes for using official acts

27:38

as evidence. And I think that

27:40

primarily because of what the law

27:42

is, and also what the Chief

27:45

Justice seemed to

27:47

be pretty adamant about. And he really

27:49

pushed Mr. Sauer on this because Mr.

27:51

Sauer's view was no, you can't

27:53

have any evidence of anything that was done

27:56

as part of the official acts even come

27:58

into the trial. And this is where that word expunge. It

28:00

all has to be expunged. None of it could

28:02

come into trial. And the chief really

28:05

questioned that, and let's play that

28:07

clip of the chief. Well, if you expunge

28:09

the official part from the indictment, how do

28:11

you – I mean, that's like a one-legged

28:14

stool, right? I mean, giving somebody money

28:16

isn't bribery unless you get something in exchange.

28:18

And if what you get in exchange is

28:20

to become the ambassador to a particular country,

28:24

that is official, the appointment

28:26

that's within the president's prerogatives. The

28:28

unofficial part is I'm going to get a million dollars

28:31

for it. So if you say you have to expunge

28:34

the official part, how does that go forward? And

28:37

the example that the chief was

28:39

relying on there is that let's

28:41

assume that a president promises to

28:44

make someone an ambassador, given an ambassadorial

28:46

appointment in exchange for a bribe. A

28:48

bribe? Do you agree, Mr. Sauer, is

28:51

a private act? And Mr. Sauer agrees

28:53

that a bribe itself is unlawful and

28:55

a president can be charged with bribery.

28:58

But he did not agree

29:00

that evidence of the offer to make

29:02

an ambassadorial appointment would be immiscible. His

29:04

point was like, no, you could only

29:06

put on evidence of the president receiving

29:09

the money. And I think the chief was

29:11

rather incredulous to that. Well, how does that

29:13

– how could that be? Doesn't the government

29:15

have to be able to tell the story

29:17

of the reason for the payment of the

29:19

bribe in order to be able to go

29:22

forward with a trial? And the chief justice

29:24

is right about this, of course. And so

29:26

this is where I think to the

29:28

extent we might be able to have

29:30

a trial before the election, it's going to

29:33

come down to this. It's going to come

29:35

down to does the Supreme Court say anything

29:37

about which things are private and which things

29:39

are public, or do they completely leave that

29:42

to Judge Chukkin? With

29:44

some guidance about how she's supposed to

29:46

draw this line, and do they say

29:48

official acts could still come in as

29:50

evidence of knowledge and intent? So I

29:52

agree with you that there were at

29:54

least five votes for that. But can

29:56

I just say who disagreed with that

29:59

point that you just – made sure and that

30:01

the Chief Justice was making that

30:03

makes imminent sense. Justice Alito.

30:06

Yeah. I mean, he just came right out and said,

30:08

well, obviously, if you can't be charged with that, it

30:10

wouldn't be meaningful if you could introduce evidence about it.

30:12

Right. I mean, it was

30:14

so disheartening to hear

30:16

that. I mean, it was so

30:18

disingenuous. I can't really think of a

30:21

more favorable word. Yeah. It was shocking

30:23

because it's so obviously wrong. And so

30:26

just one thing about if it

30:28

goes back to this sort of

30:31

a hearing and a decision on

30:33

sort of official versus private, there

30:35

is a potential upside. There's no

30:37

question that this case could be

30:40

extremely delayed and that this decision

30:42

could come out at the

30:44

end of June and that they're not

30:46

going to act quickly and that Judge

30:49

Checkin, said that there

30:51

would be 81 more days to allow the

30:53

defense to prepare for a trial. Right. But

30:55

during those 81 days, she could

30:57

be having the hearing, right? Right. That's my

30:59

point. Okay. Okay. Is that if there's a

31:02

hearing, just remember, that could

31:04

be a factual hearing. If

31:06

you were deciding, that's the sort of

31:08

the rabbit out of a hat, which

31:10

is if it goes back for a

31:13

hearing on this and she thinks she

31:15

needs to have facts to understand what

31:17

is official and what is private, you

31:19

could have a hearing. And I don't

31:21

mean like a one-day hearing. I mean,

31:23

you could be telling the government that

31:25

you don't have to wait 81 days

31:27

because it's not the trial. No one's

31:29

going to jail based on this. And

31:31

you could have a hearing where facts

31:33

get into the record. And as we

31:35

know, that is exactly what Donald Trump

31:37

does not want. You can see it from

31:40

the last thing we're going to talk about

31:42

today, which is the trial in Manhattan and

31:44

David Pekker's testimony, where there is really, I

31:47

think, pretty explosive testimony about the nature

31:49

of what was going on in

31:52

2015, 16, and 17 in that

31:54

case. So one thing for people to keep

31:56

an eye out at, this maybe is my

31:58

only sliver of optimism. is that there

32:01

is this ability to potentially have a

32:03

hearing where people like Mike Pence, Bill

32:05

Barr, Eric Hirschman, others testify about the

32:07

facts that would relate to official versus

32:10

unofficial. But I do think big picture,

32:12

I just want to go back to

32:14

where I sort of started with you,

32:17

Mary, which is this idea that, oh,

32:19

but don't worry, we're letting you go

32:21

forward with respect to private acts is

32:24

a huge loss. I mean, it is

32:26

true that the definition of private versus

32:29

official is kind of the ball

32:31

game. But just remember, Michael Drieben

32:33

went in asking for immunity to only be

32:35

with respect to the core. And again, he

32:38

wouldn't call it immunity. Gorsuch said, let's just

32:40

call it immunity. And he's like, well, okay,

32:42

but it's not. I'm just doing it as

32:45

a shorthand. But I mean, he's saying whether

32:47

he calls it immunity or you can't be

32:49

criminally prosecuted because the statute couldn't reach it.

32:51

He's saying that official acts are

32:54

subject to criminal prosecution. So he would

32:57

lose the big ball of wax other

32:59

than that small core group. Yeah, if

33:01

that's where they come out. I do

33:03

think this, whether something's an immunity or

33:06

not, does have consequences though, right?

33:08

Because if it's couch as immunity, there's

33:10

the opportunity for another appeal. Like Judge

33:12

Chuck Ken Rules here, these things are

33:14

unofficial, private, these things are official

33:18

and you're immune. He can take that up

33:20

and say she drew the line

33:22

wrong. If it's really all about

33:24

an as applied challenge to a

33:26

criminal statute being applied to the

33:29

president in circumstances where it would

33:31

infringe on his explicit constitutional responsibilities,

33:33

that's not necessarily something that gets

33:36

you an interlocutory appeal. That is

33:38

something that you could appeal at

33:40

the end of a trial. So

33:42

this label, notwithstanding that Justice Gorsuch

33:45

wanted to just call everything immunity,

33:47

the label I think does have

33:49

some consequences. And that's why to

33:51

your point, there could be this hearing on

33:53

these things. It could be that however Judge

33:55

Chuck Ken Rules is something that Mr. Trump

33:57

would take up again, which means there's no

33:59

change. of getting to trial before the

34:01

election. But the hearing itself would expose a

34:03

lot of facts to the public if there

34:06

was that type of factual hearing. And I'm not

34:08

100% certain that that's the kind of hearing it

34:10

would be, but it's certainly one possible

34:12

option. If the government were to say,

34:14

we're only going to go to trial

34:16

on the things that Mr. Trump has

34:18

conceded our private acts and we're going

34:20

to put in official conduct as evidence

34:23

of knowledge and intent, that's one path

34:25

to possible trial before the election. But

34:27

again, he's only conceding a few

34:30

narrow things our private acts. And so if

34:32

Judge Chukkin went further than that and said

34:34

more things than that are private, he's going

34:36

to at least make an effort to appeal

34:38

that, I think. I agree. It

34:40

remains to be seen. I'd say the

34:42

only other point on this is for

34:44

everyone to keep their eyes out for

34:46

what the Chief Justice is going to

34:48

do because people were pretty vocal and

34:51

pretty clear about where they were coming

34:53

out. You never know from an oral

34:55

argument what's going on. But

34:58

to the case at large or even certain

35:00

of the justices, I mean, some were absolutely

35:02

clear. But Chief

35:04

Justice Roberts was surprisingly

35:07

quiet, I think, on

35:10

where his leanings were other than the point

35:12

that you are making merry. So it'll be

35:14

interesting to see where he comes out. One

35:17

thing we didn't briefly discuss is something

35:19

called the clear statement rule, which was

35:21

there was a whole back and forth

35:23

about whether there's a way to decide

35:26

this case because the charges couldn't essentially

35:28

be brought against the

35:30

president because the congressional statute

35:32

didn't specifically say, and this

35:34

applies to the president. Only

35:36

two statutes say that. That's

35:39

Amy Cootie Barrett's, like, that would be,

35:41

that's only two out of, like, thousands

35:43

of statutes. She's, like, essentially, this has

35:45

been paraphrasing, she's, like, that's absurd. I

35:47

mean, it was very interesting. I mean,

35:49

she displayed, I thought, just a ton

35:51

of common sense. I thought she had

35:53

great questions, really important questions. Yes, I

35:55

totally agree. And, yeah, I was very

35:57

impressed with her yesterday. Yeah. I

36:00

also thought once again, Katanji Brown

36:02

Jackson, the newest justice, I just,

36:05

I find almost like every single thing

36:07

that came out of her mouth, I

36:09

was just like, okay, that's brilliant and

36:12

grounded in law. The other

36:14

thing we haven't talked about is, you know,

36:16

this argument that if there's anything within official

36:18

acts that a president could be prosecuted for,

36:20

it has to be only after impeachment and

36:22

conviction by the Senate, right? Remember that's his

36:25

core argument. It sort of defeats a lot

36:27

of his arguments about immunity, but whatever we,

36:29

you know, but this

36:31

is another place where Justice Barrett I thought

36:33

was very good. And we do have that

36:36

clip as well. Okay, so there

36:38

are many other people who are

36:40

subject to impeachment, including the nine sitting

36:42

on this bench. And I don't think

36:44

anyone has ever suggested that impeachment would

36:46

have to be the gateway to criminal

36:49

prosecution for any of the many other

36:51

officers subject to impeachment. So why is

36:53

the president different when the impeachment clause

36:56

doesn't say so? So

36:58

with that, let's go to break and we'll

37:00

come back and talk about some other things happening

37:02

yesterday and over the last few days, because this

37:05

was not the only thing. At

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now wherever you're listening. So

38:20

Mary, lots of other things going on,

38:22

although obviously the Supreme Court was so

38:24

lion-share of our attention because of what

38:26

it means for the country, not just

38:28

for Donald Trump. So we're going to

38:30

focus on two things about New York,

38:32

what happened in the trial, some not

38:35

trying to do a TikTok of everything

38:37

that happened, but just some key

38:39

points. Focus on a new gag

38:41

order motion and then turn to

38:43

Arizona where Mary, I'm going to

38:45

be fascinated to hear your take

38:47

because you've been so steeped in

38:49

fake electors and looking into that

38:51

issue. So David Pecker was on

38:53

the stand again yesterday for direct

38:55

and the cross-examination started. And

38:57

the key sort of big picture

38:59

is David Pecker clearly was presented

39:02

by the DA as a principal

39:04

who had an agreement with

39:06

the other principal who is the

39:08

defendant in the case, Donald Trump, very

39:11

much making Michael Cohen sort of a

39:13

manuensis, a staffer as Nicole Wallace said,

39:15

carrying out the work of the two

39:18

principals. David Pecker also sort of explained

39:20

essentially why Michael Cohen and Donald

39:22

Trump had to take on a different

39:24

role with respect to Stormy Daniels. And

39:27

that is that with respect to the

39:29

sort of catch and kill scheme and

39:31

denigrating opponents, they continue to denigrate opponents,

39:34

the National Enquirer did, but with the

39:36

catch and kill scheme, it's a couple of

39:38

things. But basically National Enquirer kept

39:40

on laying out money. And even with

39:43

Karen McDougal, they laid out money, but

39:45

they didn't get reimbursed. They didn't get

39:47

reimbursed, not because Donald Trump is cheap,

39:49

but it's clear one, they

39:51

were concerned about campaign finance violations. Exactly.

39:53

He basically said it's so clear at

39:56

some point he's like, I went and

39:58

talked to our lawyer. And

40:01

then I came out and we decided we

40:03

weren't going to do this anymore. He also said,

40:05

I know about campaign finance violations because

40:07

I did a similar scheme for Arnold

40:10

Schwarzenegger back when he was running

40:12

for office. Exactly. And then

40:14

I heard from, you know, oh, this could be

40:16

a campaign violation. You couldn't say what the conversation

40:18

was with counsel because of a turning-light and privilege,

40:20

but it's clear. It's like we were planning on

40:23

getting reimbursed, then we weren't. It's clear that a

40:25

lawyer is like, what the heck? Yeah, that's right.

40:27

You're going to feel like a national choir. It

40:29

might have been a slightly stronger word. It might

40:31

have been, yeah. So anyway, that sort of explains

40:33

why David Picker then turns to Michael Cohen and

40:36

says, we're not doing this anymore. Like, we're not

40:38

going to be a bank for paying out. They

40:40

were almost $200,000 in by that time, right? Right.

40:43

$154 Karen McDougall, $34 Dino

40:45

Sajudin, the doorman. So that's a lot

40:47

of money. And he said this is way

40:50

more than they normally pay to kill

40:52

a story. So this is why Michael

40:54

Cohen had to take out the home

40:56

equity loan because the national choir was

40:58

no longer the bank for this. And

41:00

so that's why there was this different

41:02

way the scheme had to operate. The

41:05

other parts of the scheme, national inquire

41:07

being the eyes and ears, looking for

41:09

bad stories, denigrating opponents, all of that was

41:11

still going on. Yes. This is

41:13

just the financial component of the catch and kill.

41:16

The cross-examination, this is where it helps

41:18

that you and I have done so

41:20

many trials because there was

41:23

a lot of reporting on air that

41:25

I just violently disagreed with. And

41:28

that's because this is the look over

41:30

here school of cross-examination, which by the

41:32

way, I've been a defense lawyer. That's

41:34

a totally valid type of cross-examination.

41:36

But the job of the prosecutors, also the

41:38

job of the public, and I think our

41:41

job is to be analytical

41:43

about what is happening. So

41:45

the two sort of key

41:48

cross avenues on this so

41:50

far were, one, didn't

41:52

you engage in this kind of

41:54

scheme essentially with other people like

41:56

Arnold Schwarzenegger? Well that's not a

41:58

defense. that you may

42:00

have committed an election fraud scheme with

42:02

somebody else is not a defense to

42:04

committing an election fraud scheme with a

42:07

second person. That's like saying, well, didn't

42:09

you commit a bank robbery before? Yeah.

42:11

Okay. Great. That's

42:13

true. The

42:15

second was to say, oh, there's

42:17

nothing wrong with just generally

42:19

doing catch and kill for celebrities. And

42:22

then there was this sort of salacious

42:24

list of people who I'm not going

42:26

to name here. I'm not

42:28

saying if any of that was public until yesterday. Yeah. I

42:31

mean, that was basically, oh, we just sort of do this

42:33

in general for people. But that's

42:35

not the charge here. That's like

42:37

apples and oranges. The reason we're

42:40

here is because of the false

42:42

business records with the intent to

42:44

commit a campaign violation. It might

42:46

be sleazy and disgusting and politically

42:48

small pee bad. It might open

42:51

you up if you're admitting on

42:53

the stand that you're deliberately defaming

42:55

people who are political opponents. That

42:57

might open you up to civil

42:59

lawsuits, which by the way, I was

43:01

sitting there thinking on my behalf. I

43:04

know. I was thinking about

43:06

that too. The National Choir has to

43:08

be like, we just have the head

43:10

of the organization saying we did this

43:12

deliberately and these were fake stories. But

43:14

just saying that you did a non-criminal

43:16

version of this and we're sleazy, it's

43:18

just irrelevant to this. Yeah. That

43:21

they want to make it sound like, oh, it's just business as usual. Business

43:23

as usual. That's not the crime.

43:25

That's when we talked about it on our

43:27

last episode with opening statements about why you

43:29

and I looked for smart jurors because that's where

43:31

you want to be able, just like we're doing

43:33

now, you want to be able to just

43:35

say, okay, that doesn't make any sense. Here's

43:37

the reasons. By the way, this is what

43:39

you're going to hear in closing is why

43:41

that's not logically true. Yeah. I

43:44

get it why they did it, right? Because

43:46

they're working with the facts and they wanted

43:48

to go back that you guys have had this relationship,

43:50

you and Trump since 1998 or something like that. This

43:55

is just the same thing. And we'll see the

43:57

government come back and rebut that. I

44:00

wasn't trying in any way to say the

44:02

difference. This is the defense's job. My point

44:04

is that our job is to think critically

44:06

about those arguments and just to be fair

44:08

to them, they then pointed out places where

44:10

like with every witness, David Pecker didn't remember

44:13

everything completely clearly. That's totally

44:15

fair game and that's that you should

44:17

be crossed on that. So this is

44:19

less about the defense lawyers job. I

44:21

think you and I both really respect

44:23

that when it's done within the rules,

44:25

it's absolutely necessary to our system. But

44:27

our job is to think about critically

44:30

just those arguments make sense. Okay,

44:32

there's a motion that was filed

44:34

with respect to more gag order

44:36

violations. It's going to be heard

44:38

on Wednesday. The court has issued an

44:40

order requiring Donald Trump to respond

44:42

and to be present for that

44:44

because he continues to allegedly violate

44:46

the gag order. And some of

44:48

these new claims that the DA is

44:50

making involve things that Mr. Trump

44:52

has said like right there in

44:54

the courthouse in the hallway during

44:56

the trial or right after the

44:58

trial, during a trial day. Now Mary,

45:01

Arizona, so just remind people everyone should

45:03

know like you're very steeped in the

45:05

fake electors because of your civil work

45:07

for ICAP. Right. So

45:10

what did you make of all that? Yeah, so we

45:12

spent an episode back I guess

45:14

right at the end of February, beginning

45:16

of March talking about the fact that

45:18

we had resolved our case in Wisconsin

45:20

brought against the fraudulent electors there and

45:22

two Trump attorneys, James Troopis and Kenneth

45:24

Chesbro. That was a civil case. So

45:26

nobody's going to jail. And in doing

45:29

so, we got commitments for them not

45:31

to participate in a scheme like this

45:33

again, but also and more importantly, troves

45:35

and troves of emails and text messages

45:37

that really show the genesis of the

45:39

scheme. So when I saw this indictment

45:41

come out on Wednesday, boy did

45:43

it read very familiarly to the story

45:46

we'd been able to tell through all

45:48

of the documents that we had obtained

45:50

as well as of course documents that

45:52

the House Select Committee had obtained and

45:54

other information that's come out about this

45:57

scheme. So what we're seeing now here

45:59

is criminal charges for

46:01

different types of fraudulent conducts,

46:04

conspiracy, fraudulent schemes and artifices,

46:06

fraudulent schemes and practices, and

46:08

forgery against not only all

46:11

of the Arizona fake electors,

46:13

but also another one, two,

46:16

three, four, five, six, seven, as

46:18

yet not officially named defendants. Now

46:20

there's been speculation by the Washington

46:23

Post and others about who those

46:25

defendants are. And I could tell

46:27

when I quickly skimmed the indictment

46:29

who some of those other defendants

46:31

are, but I think what's important

46:33

here is they're going beyond the

46:35

fake electors into some of the

46:37

puppet masters, those who were pulling

46:39

the strings, those who were involved

46:41

in creating the scheme. That would

46:43

include people in the campaign, people

46:45

associated with Donald Trump, people like

46:47

Boris Epstein, people like Mike Roman.

46:49

And so this is again about accountability.

46:52

Now what's missing here, we do not

46:54

have Donald Trump on the other side

46:56

of the V. He is not a

46:58

defendant. He is unindicted co-conspirator number one.

47:00

And another person who

47:03

is involved in this indictment and is called

47:05

co-conspirator number four is Kenneth Chesprow. It's quite

47:07

obvious from the allegations that's who it is.

47:09

He of course was one of our defendants.

47:12

He of course was the source of many,

47:14

many of the documents that we made public

47:16

as well as documents that had already been

47:18

public. He is the one who originally came

47:21

up with the idea for the scheme, wrote

47:23

the legal memos supporting the scheme. This

47:25

cause was later taken up by John

47:27

Eastman of course, who was very close

47:29

to the president and really ran with

47:31

it. But he's the one who came

47:34

up with the idea. James Troopas, the

47:36

Wisconsin Trump campaign attorney is the one

47:38

who introduced Chesprow to Trump campaign officials

47:40

who were like, this is a great

47:42

idea. And I saw throughout the indictment

47:44

references to James Troopas as well,

47:47

not by name, but by the

47:49

fact that this Wisconsin Trump attorney

47:51

made these connections with the campaign,

47:53

then asked, can you guys do this

47:55

for all of the swing states? That was

47:57

Boris Epstein who asked that and Chesprow. said,

48:00

yes, we can. Now, what do I take

48:02

from Chesbrough bringing an unidentified conspirator number four?

48:04

So that was going to be my question

48:06

too, exactly, which is, I actually had two

48:08

questions for you. One is obviously speculation, but

48:10

why do you think Chesbrough was not charged?

48:12

And the second obviously is why do you

48:14

think Donald Trump was not

48:16

charged? Yeah. Chesbrough, you know, it's been

48:19

widely reported that he met with the

48:21

Arizona Attorney General as well as other

48:23

attorneys general and supplied them information and

48:25

documents, any of the documents and emails

48:28

and texts that are references here are

48:30

things that we also obtained from Kenneth

48:32

Chesbrough. So my strong suspicion is that

48:34

in return for his cooperation, he is

48:37

not being charged. Donald Trump, that's

48:39

a different question. Can I set you

48:41

on transfer? Do you think he's

48:44

fully, fully cooperating or do you

48:46

think he cooperated enough so

48:48

that they didn't charge him? So

48:50

my suspicion is that he came and met

48:52

with them, maybe went in the grand jury,

48:54

maybe not, I'm not entirely sure, provided

48:57

lots of texts and emails. And my guess

48:59

is the cooperation would also include testimony

49:01

at a trial because certainly if

49:03

I were the AG, I wouldn't want

49:06

that, right? Well, if you were there,

49:08

I definitely know the

49:10

answer because you're going to be like,

49:12

you know what, you're either fish or

49:14

you're foul. That's right. You know, you're

49:16

either a conspirator or you're a cooperator.

49:18

There's no... No halfway. No one

49:20

leg in, one leg out. Right.

49:22

You know, one leg in stools here. Yeah, right.

49:25

But you know, all of this is us. We

49:27

don't know this. Yeah. You know,

49:29

officially we're just speculating. And then

49:31

as to Mr. Trump, you know, I'm

49:33

speculating on that as well. I mean, certainly

49:35

they painted a broad conspiracy here that, I

49:37

mean, he's called an unindicted co-conspirator. Right. And

49:39

it's all for him. I mean, it's not...

49:41

Yeah, and it's all for him. And he

49:44

certainly had knowledge, not necessarily of every single

49:46

step of the way, but he had knowledge

49:48

of what was happening. He embraced it. He

49:50

pushed it. He was advised of it at

49:52

White House meetings, which are in here, etc.

49:54

That's also things we revealed through our case.

49:56

So I don't know if they just didn't

49:58

want to get by. down, frankly, with

50:01

yet another case against Mr. Trump in

50:03

this year where there are four criminal

50:05

cases against Mr. Trump and they want

50:07

to be able to get some accountability,

50:09

move this case along. It could

50:11

be also they're thinking of that down the

50:13

road, but I think some of it could

50:15

just be for political reasons, and that's like

50:18

little peak political and resource reasons. Can I

50:20

give you a question about it's on pages

50:22

44 and 45 of the charges, which is

50:24

there's sort

50:26

of a reference to internal White House

50:28

lawyers saying, I'm just sort of paraphrasing,

50:31

but we don't really know what the

50:33

lawyers, Rudy and Eastman, who are conspirators

50:35

according to the Arizona AG, what they're

50:37

telling Donald Trump. Now, there

50:40

is whether there's an issue about

50:42

whether he knows they're fake electors

50:44

versus contingent electors. Now, they may

50:46

have very good reason to think that he

50:49

knew that these were fake and not contingent.

50:51

That's sort of the line between legal and

50:53

illegal. Contingent being the is okay, fake being

50:56

not okay. And I wonder if they just

50:58

thought we're not yet at the point of

51:00

having proof beyond a reasonable doubt. That

51:03

could be, I think there is other

51:05

evidence, you know, including the meeting at

51:07

the White House. I mean, certainly their evidence

51:09

is not as strong on this, at least

51:11

according to the indictment with respect to Mr.

51:13

Trump as it is with some of the

51:15

others. So, Mary, this

51:18

has been fascinating. It was an

51:20

interesting day yesterday. So to be

51:22

continued, obviously, there's

51:24

the trial that's continuing today. We will

51:27

have another gag order hearing next week.

51:29

Next week, I have actually

51:31

some thoughts about alternatives that we can

51:33

talk about next week as to what

51:35

the judge might do in addition to

51:37

just finding that could be useful. Right.

51:40

Once again, Professor Ryan Goodman came up

51:42

with a good idea. I know our

51:44

friend, mutual friend Neil Cottrell also had

51:46

an idea. So we can talk about

51:48

those as we talk about the gag

51:50

order. It'll be fascinating to see the

51:52

continuation of the trial. And, you know,

51:54

Mary, as hard as it is to

51:56

do all of the TV work, and

51:58

now we're doing not one. one, but

52:00

two podcasts a week. It really, I

52:03

have to say the sanity of this

52:05

is getting to spend time talking with

52:08

you and having my blood pressure go

52:10

down and listening to sober,

52:12

clear analysis that's dispassionate. So, thank you.

52:14

Well, I appreciate that. If this is

52:16

where our blood pressure goes down, I

52:18

can't even imagine where it started, but

52:20

okay. And I just want to also

52:23

say we really do intend to get

52:25

to listener questions. We just had so

52:27

much today. We didn't do it. We're

52:29

going to commit to that next week

52:31

and look forward to talking with everyone

52:33

again on Tuesday. So,

52:37

as the trial continues in New York, Mary and

52:39

I will bring you new episodes twice a

52:41

week to keep you up to speed. And we

52:43

want to answer some of your questions as Mary

52:45

noted to keep them coming. We really, really will

52:48

get to them if the news ever stops breaking.

52:50

But to send us questions, you can leave

52:52

us a voicemail at 917-342-2934 or you can email

52:59

us at prosecutingtrumpquestions at

53:01

nbcuni.com. And just so

53:03

you know, we really

53:05

do read these. So, thank

53:07

you very much for those who have sent them

53:09

and thank you in advance for those who do

53:11

send them. So, thanks so much for listening. We'll

53:13

be back next week. This

53:15

show is produced by Vicki

53:18

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