Immunity Denied 41:47

Hello and welcome to another episode of Prosecuting Donald Trump. It is December 4th, and I'm here with my co-host, Mary McCord. And Mary, there's so much to talk about. It was actually, in the last couple of days, we were like trying to do triage on exactly what to cover. But there were some really big rulings that happened, like sort of one-two punch from the

D.C., both the trial court and the Court of Appeals, both dealing with presidential immunity. So we're going to cover those and talk about them. Yeah. It was kind of remarkable because literally the decisions were issued within hours and they were both big blows to Donald Trump. One saying you're not absolutely immune and

from criminal prosecution, and we'll spend quite a lot of time talking about that. And one saying, right now, you're not immune from a civil lawsuit against you for injuries caused to people on January 6th. So these are both significant decisions. I was actually on air with Alicia Menendez, who was covering for

the wonderful Nicole Wallace while she is on parental leave with baby number two. But Alicia, Ashne, so when do you think we're going to hear from Judge Chutkan? And I said, well, I think it will be imminently. And I said, I think, you know, certainly next week. But I had no idea. Like, it was basically within minutes. It was very imminently. Yeah, exactly. It was like the converse of the Fonny Willis story.

Imminence. Months later. Yeah. So we're going to do that. We're going to talk a little bit, because it's related to that, the statements made by Donald Trump's attorneys in the Georgia criminal case, because it relates to sort of presidential immunity, temporary immunity, relating to that state criminal case. So we'll cover that in connection with that discussion. Right. And then we want to

cover something that happened last week. It happened, I think, just the day after we recorded our podcast, but we never have gotten a chance to talk about it. And very few people have because there's been so much news that it really floated under the radar screen. So again, the beauty of a podcast.

Right. And this was a motion filed by Mr. Trump's attorneys in the federal January 6th related case. It was a motion to compel discovery and in particular Brady information, which we'll talk about what that is. That's information that could essentially undermine the government's case. And they took a very, very capacious view of what the government's discovery obligations are. And we'll talk about what that means. I think there are nuggets of things that are legitimate in that motion.

But there is also a lot of sort of delay tactics and parroting, frankly, Donald Trump's campaign, you know, I'm a victim type of speeches that are happening right now. I'm shocked. I'm shocked. It'll be fascinating to see our scorecard on what we thought, because I had the same reaction that there were certain things that I thought were legit, but you kind of had to parse them out of a lot of muck.

Yeah, absolutely. That's my polite term. So, Mary, I wanted to say how much fun I had this weekend.

Because I'm here in New York City, and on Saturday night, I went to a certain restaurant where a certain Mary McCord offspring was a chef. And it was so great. That's awesome. As a matter of fact, I decided that we really shouldn't make this podcast about movie reviews, but I was coming from a movie that I really, really did not like.

And I was thinking, "Oh, this whole evening is like going down the drain." And then we show up at this restaurant. It was so wonderful. And your son is such a lovely person. I shouldn't be surprised at all. He must be so proud of him. Well, I'm glad you enjoyed it. And I know he enjoyed having you there. It was great.

Okay, so these decisions were so huge. Why don't we start with the Judge Chutkan decision, which I thought there was so much to say, but it was a big, bold, magisterial decision. She essentially...

decided I'm going to find that with respect to presidential immunity claims for criminal indictments, that it does not apply. That presidential immunity

There's law about how it would apply to civil cases, but this was a sort of big, bold, magisterial decision embedded in history and democracy about why presidential immunity simply should not apply with respect to

criminal indictments that are at the federal level for former presidents. So those were some limits. Even though, even based on things done while in the office of the presidency, and that's important. Oh yeah, absolutely. Because that's why he argued that he was immune. Which is why, that's why it's not going to come up in the Mar-a-Lago case, the classified documents case, because that's based on conduct after.

President Trump left office. So there can't be a claim of presidential immunity. It doesn't stay with you. But she basically, though, didn't take this sort of alternative position, which is, oh, even if it applied, it shouldn't be. There are reasons it's not applicable here. She just said that presidential immunity in this circumstance where you have a federal criminal indictment

does not apply. And in fact, she quotes from the former Justice Marshall from the early 1800s in the case of United States versus Burr, that the president is elected from the mass of the people and on the expiration of the time for which he is elected, returns to the mass of the people again. I loved that quote, didn't you? Yes, and it's so fitting here. And that sentiment so imbued

what she was talking about. And I thought one of the things that was really interesting is that she has a lot of textual arguments and persuasive arguments for why this presidential immunity with respect to civil cases is more nuanced. But I thought one of her great points about that was when we're talking about

criminal cases, it is not like a civil case where the whole idea of some presidential immunity with respect to civil liability is that

You don't want presidents to worry while they're in office, "Am I going to get sued over this?" You could get sued in numerous, numerous courts by numerous people. There's no check on that. It could happen all across the nation, in federal court, in state court. It could be for lots of monetary relief. And you essentially are saying, "Look, those are the kinds of things that we need to make sure that the president and his aides or her aides are

free to give advice and take positions in the best interests in the country without worrying about all of that potential liability. But she said that's not what happens in a criminal matter because, one, because of the double jeopardy clause, it's not going to proliferate. You can only be charged federally once. For one crime. For one crime. So you don't have that issue. Two, you're dealing with a

a justice system where you need a grand jury to indict, you need proof beyond a reasonable doubt to a jury. There's a much more robust system of protections. And I thought one of her lines that was really terrific was when she was comparing criminal and civil was, this is a quote, "Every president will face difficult decisions."

whether to intentionally commit a federal crime should not be one of them. Yeah. She's basically saying it's not going to chill presidents in exercising their duties to say don't commit crimes because you could actually be prosecuted for them. Yeah, she actually said it will actually be a good thing for them to feel that they might face criminal liability, not a bad thing. Can I break in for a minute? Yeah, yeah, yeah. Okay, just to put a frame on this. Yeah. Because...

Back when we first started talking about the fact that Donald Trump would be moving to dismiss this case on the grounds of absolute presidential immunity, we even – you and I and Trevor Morrison, a law professor at NYU, we had an interesting discussion sort of assuming that something like the rules –

that apply in civil cases might apply to criminal cases, which might give immunity for conduct that is within the outer perimeters of a president's official duties. And that's because that's the only law we have. And it applied in civil cases. And we're going to talk about that because that's what the D.C. Circuit applied in this other civil case that was decided on Friday.

But what the government argued here and what Judge Chutkan held on Friday, although to be honest with you, I think her opinion was more persuasive than the government's brief.

that provides it. There's nothing in the structure, like you've just been talking about, that would say we need to protect against criminal liability for presidents. Structurally, that just doesn't make sense because it's not going to chill presidents. In fact, it would be good for them to realize they would have to face criminal liability. And there's nothing in our history that suggests that

Presidents can't be subject to criminal responsibility for crimes they commit in office. And so then she goes through text and starts with saying, look, nowhere in the text of the Constitution is there immunity for the president. And in fact, contrast that with the speech or debate clause, which provides immunity for members of Congress when they're engaged in legislative activity. And in fact, that was the basis for an entirely different ruling last week.

about Congress member Scott Perry and the government's efforts to search his cell phone. And we don't have the full opinion because it's under seal, but the court there said, you know, some things government, you can't search because he is protected by the speech or debate clause. Very, very different from presidential immunity, which as Judge Chutkan pointed out, doesn't exist in the text of the constitution. And then she rejected challenges based on the impeachment clause, which

arguments that Mr. Trump's attorneys made that, you know, you have to essentially be impeached and convicted before you can be held criminally responsible. She looked at that text, rejected that, right? Yeah, well, that was, in my view, a really frivolous argument. I agree. Yeah, Mary, I just wanted to go back to you because I wanted to quote some more passages because I just thought it was so well executed as a piece of decision making. Yeah.

So one of the things she said along your lines as to why she was coming out differently with respect to the presidential immunity in a criminal context is, quote, "By definition, the president's duty to take care that the laws be faithfully executed does not grant special latitude to violate them."

It seems like a truism, but we actually, in the Mueller report, said the same thing, because we were dealing with a claim by the then president that he should not be subject to punishment.

liability for obstruction of justice. And we said, you actually are under an obligation to take care that the laws be faithfully executed. That doesn't mean that you are exempt from the law. That's right. That actually is part of it. The other thing that I thought was so wonderful is she quotes from George Washington in his very famous farewell address.

And I'm going to quote her opinion, quoting from the farewell address, because it's so prescient as to the concern that George Washington had. I'm going to see if it's the same sentence that I have highlighted. I have two sentences highlighted from that. It's so funny. By the way, as Mary said, no one can ever confuse...

people into thinking that we script this. It's all live and real. And so I'm going to be really interested, but I bet you it's the same. It was so...

so moving to me when I got to that. But just to set it up, George Washington in his farewell address is voluntarily renouncing running again. He has served two terms and he is voluntarily saying it's important to the country that we have the peaceful transfer of power, that we not have kings. This is his setting a different tone

expectation and tradition for our country, breaking with the idea of nobility and their innate right, they would say, to rule in England and France and other European countries. So Judge Tutkin said, with respect to George Washington, he issued a sober warning that

"All obstructions to the execution of the laws, including group arrangements to counteract the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle." In Washington's view, such obstructions of law would prove fatal to the republic as, quote,

cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."

I wish I could show readers my copy of the opinion with yellow highlighter on what you just read, because I too was like, this is it right here. This is fundamental core principles of democracy and the rule of law that she felt to go back to your comment at the very beginning of this podcast and describing the ruling. She felt compelled the result that she came to.

So one thing I was thinking sort of big picture stepping back is we are seeing various judges really step up in terms of their role in terms of checks and balances and being one of the last bulwarks. We certainly aren't seeing it from a whole lot of members of Congress. We had not seen it from prior members of the executive branch. But

And we are seeing it from members of DOJ and they're being attacked. We're seeing it from members of the fourth estate, the media, and they're being attacked. And we are seeing judges, whether it's Judge Ngoran, whether it's Judge Chutkan, whether it's Beryl Howell, who spoke at a conference.

event last week and spoke about the importance of facts and fact-finding in the rule of law in this nation, that you see judges stepping up, understanding their responsibility, and of course being attacked by Donald Trump and his allies. And so this opinion, I think, is really

in spite of the fact that she has been the subject of numerous death threats, hate speech, understanding her duty as a judge and as an American. Yeah, absolutely. And, you know, we've seen that also, and we're going to talk about that in a minute when we talk about the D.C. Circuit decision last week. We've seen that from judges appointed by Democrats and judges appointed by Republicans. And I think that's important as well. Absolutely.

One last point I want to make about her opinion, though, is the part on history, because we've been talking a lot about the structural part and the textual part. On history, one of the things she pointed out is it's never been assumed that presidents were presidents.

immune from criminal prosecution. And she reminded people of Watergate when President Ford granted former President Nixon full, free and absolute pardon for all offenses against the United States, which he committed or may have may have committed during his time in office.

And the former president, Richard Nixon, accepted that full pardon. So, again, it wasn't litigated there, but the assumption was entirely that he could have been charged for crimes committed while he was in office related to Watergate and he was being pardoned for those crimes.

So it's going to be really interesting because, of course, this decision is going to be appealed to the D.C. Circuit and it may get appealed from there no matter which way the D.C. Circuit rules. So I think they will affirm her either on the same grounds or on different grounds. But I think she'll get affirmed.

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So Mary, you've been talking about the D.C. decision in the criminal case by Judge Chutkan. Let's turn to a really similar issue that was addressed by the D.C. Circuit in a civil case. Do you want to outline for us what was going on there? So this is a case brought by Capitol Police officers and members of Congress against former President Trump, really for his role

in the incitement of the insurrection that resulted in physical and emotional, psychological injuries to many Capitol Police officers and even members of Congress. And so this was also the subject of a motion to dismiss that Mr. Trump's lawyers filed saying,

These were all things done within the outer perimeter of my official responsibilities, and therefore I'm immune from the civil suit. That's the same test we were just talking about earlier, contrasting that test about civil liability with criminal liability. And the three judges, Chief Judge

of the D.C. Circuit, Sri Srinivasan, wrote for the panel, but it was a unanimous decision, including two other judges, Judge Rogers, who was appointed by a Democrat president years ago, and Judge Katsas, who not only was appointed by President Trump when he was president, but also served in the White House Counsel's Office under the former president. So,

So again, back to the point of we have judges, regardless of the president who appointed them, who I think are taking their jobs very seriously. This opinion, though, was very interesting to me because it rejected both the arguments of Mr. Trump and

the arguments of the plaintiffs, and even arguments that they had sought the opinion of the U.S. government through the Solicitor General to file a brief. The U.S. government's not a party in this case, right? It's a civil litigation. But they sought those opinions, and they rejected sort of the way everyone was trying to apply this rule about what's within the outer perimeter of your official responsibilities. Instead, basically said, what you look at is what's

What is the capacity with which the former president was making the statements that were at issue here? Because at issue, and I should have said this, is Mr. Trump argued, anytime as president that I was commenting on issues of public concern, that was necessarily within the outer perimeter of my official responsibilities as president, and therefore I'm immune. And what the D.C. Circuit did is reject that and basically said, when a first-term president

So...

Basically, if you're campaigning out of office to seek office, that is not an official act. And when you are in office, but you're campaigning to stay in office, that is not an official act. You're acting as a campaign agent.

to gain office. It doesn't matter whether you're in the office or whether you're like the current former president now seeking office. I think that analogy is so important because one thing the court says is, imagine this, right? You would otherwise have a statement that, you know, a president who is campaigning would be immune from saying, let's say, inciting violence, but someone who's not currently the president and campaigning and says the same thing could be liable for inciting violence.

Right. It's a complicated decision. And I think there's some weaknesses and some of the reasoning that I'm pretty sure we're going to have Trevor back on at some point and we'll get more into the weeds. That'll definitely be law school back in session. But it is a much more nuanced decision.

decision because it's dealing with specific facts and you have to parse specific facts. And so that was the other way that Judge Chutkan could have gone. And she makes a note at the end of her decision saying, I'm not getting into that because I've decided it just categorically doesn't apply. So I don't have to get into whether it was official or unofficial statements, etc.,

So when her decision gets appealed, it will be on those grounds that, you know, whether it's categorical or whether there's a way to affirm her on a sort of more nuanced statement-by-statement sort of view in terms of what was he doing at any particular moment. So that'll be sort of one of the battlegrounds on appeal.

But I think one of the things that is interesting is how this relates to timing. And we saw a little piece of this in the argument last week by Donald Trump's lawyer in the Georgia criminal case, where the judge said, well, if the state criminal case were to go forward and get scheduled, but then Donald Trump were to become the president, what would happen? And Donald Trump's lawyer said, well, then it will be stayed forever.

for the entire time that he is president, meaning that if you don't have the trial

before January 20th, and it's not completed by that point, the whole proceeding will be stayed and it won't go for another four years. I actually think there is some really strong support for that position. I agree. Because you just don't want every state being able to bring a criminal case and then disrupt the presidency. But you do have the former president saying that, and that clearly is his strategy in this race against the clock.

And it is a form of presidential immunity because it is temporary presidential immunity. I dealt with that in the Mueller investigation where just according to DOJ policy, just DOJ policy, a sitting president has this sort of temporary immunity because we were not allowed in the Department of Justice and the special counsel, we were part of that. We could not charge him. But as your colleague and my friend Neil Kochel says,

The former president is basically saying, OK, couldn't be charged while I was president. Right. Can't be charged after. And you can't charge me while I'm thinking of becoming president. You can't charge me ever. I mean, that's really the bottom line. Right, exactly. Never will be too soon. Yeah. And he argues in Georgia, as he is arguing in D.C., that essentially these prosecutions are actually election interference also, which isn't different from presidential immunity, of course, but like it's a

Absolutely.

as alleged in the complaint by the plaintiffs. And so they're not making their own factual findings. And they allowed for the fact that Trump could, on remand to the district court, try to make an argument that his speech was

was within the outer perimeter of his official duties in a different way than the argument he made before, which is that it's on matter of public concern, the end, I win. They rejected that, but did suggest he could try to establish that some of the things he's being charged with were actually within the outer perimeter. So we'll see. We'll see what happens. I mean, this is like, again, super in the weeds on civil cases, but that's the difference between a motion to dismiss, meaning saying something's

on its face, you can't win. Exactly. Versus after discovery. So that was a procedurally correct thing for the court. No matter whether you agree or disagree, they're ruling that procedurally is right. After discovery, you get an opportunity to sort of be heard based on the facts that have been put together.

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That's a really good segue, I think, to the Brady motion that was made by Donald Trump. This, like, law school back in session, we're now dealing with sort of the second part of criminal procedure called bail to jail, euphemistically. And it deals with the due process clause in the Constitution requires a prosecutor to turn over

All evidence, pretrial. And even information. Doesn't even have to be things that would be admissible as evidence, right? All information. That's right. And whether it's written down or not, information that is unknown to the defense that would tend to exculpate or impeach...

So, exculpate the defendant with respect to the charged crimes, impeach any government witnesses or the investigation, or mitigate the sentencing. So, it's very broad, and it goes to the dual role that a prosecutor has, which is, yes, you have an obligation to seek justice, to prove the case, but you have

also an obligation under the due process clause to turn over information that fits this category. Essentially, information that could be helpful to defense. I mean, in lay terms, that's basically what it means. Yeah, absolutely. And it is really like one of the things that I know, Mary, you must have done this too, is like I used to give the lecture when I was criminal chief in the Eastern District of New York, I used to give the lecture every year to incoming

And the reason I did it as criminal chief is I wanted them to understand how important it was. And because this is a self-policing, to a large extent, obligation, because the defense isn't there to see exactly what the information is and what's being turned over. So it's really important to impress on prosecutors that they need to stop and take stock of all

all the different ways that there could be information that was helpful to the defense and turn it over and to not play games. That's right. And it's so funny because I was actually our office's official Brady trainer myself for many years when I was in the U.S. Attorney's Office. But it's not just like whatever happens to be in your files that might be helpful to the defense, you have to turn over. You actually have a duty to search.

And that comes into play in this motion that Mr. Trump filed. You have a duty to search all the holdings of the prosecution team, right? So all members of the government who might have been involved in the investigation to find and locate and turn over to the defense any Brady or the other category is called Giglio, either Brady information, information that tends to exculpate the defendant, or Giglio, which is information that tends to impeach any of the government's evidence or the government's witnesses.

So, Mary, the issue of scope of the prosecution team is one of the issues that Donald Trump raises. And this is an area where I thought he had a point. And I'll be interested to see how the government responds.

And that is, who is the prosecution team? So here's the issue. The prosecution team is not generally responsible for any information, known or unknown, to the prosecution team that is anywhere in the United States holdings of hundreds of thousands of people who work for the government or even potentially the state government. In other words, there has to be some...

connection to the prosecution team. Or to the investigation and the prosecution, yeah. Otherwise, every case would be ground to a halt. There's no way that if you're doing a case in New York, you're thinking, "Oh, let me see what Los Angeles was doing 40 years ago." There has to be some connection, some part in which they've helped the case. And different courts have had different interpretations about what a prosecution team is. An example:

In Enron, the Department of Justice was working closely with the SEC, and a court said for purposes of the prosecution team, they're going to view DOJ and the SEC as one for purposes of turning over Brady and Giglio information, meaning we had to make sure that we had all the information in the SEC's possession when we were turning over information to the

defendants. So that's one of the issues here that Donald Trump raised, which is like exactly what is the scope that you, prosecution team, are looking at. If you've coordinated, for instance, with the postal inspectors and the FBI, then you can't just look at the FBI. You also have to look at what the postal inspectors have. And similarly, if you've worked very closely with

intelligence agencies, maybe they are. So I think that was a legitimate thing to ask for, to know what is the scope that you are viewing as part of the prosecution team. But I wanted to, Mary, I wanted to just quickly outline for people the nature of what Donald Trump asked for, because there's a lot that's like overkill. And before we get to that, just he also, for him, he basically is saying, and it's because of what he's trying to compel Discovery of, he's saying,

The entire Department of Justice, not just the special counsel's office, is part of the prosecution team. The Department of Homeland Security, because they were part of investigating January 6th, right? The intelligence community, because they were part of investigating January 6th, right? So he goes very, very broad on who's part of the prosecution team because of the arguments he wants to make about what he's entitled to do.

under the due process clause as it's been interpreted by cases like Brady and Giglio. And I notice I say Giglio and you say Giglio. We'll have to come back to that someday. Okay, I'm going to tell you my anecdote. When I was...

a young lawyer. I was before Judge Nickerson. And I'm talking about Giglio or Giglio and the defense lawyer, James La Rosa, trying to get under my skin, which he did very successfully. He knew how to push the buttons of a young prosecutor. He goes, well, Judge, I'd like the record to reflect that it's Giglio.

Okay. All right. Okay. And I was, of course, thinking, how does he know that? And he goes, because he was my client. And I argued the case, he said, in the Supreme Court. And, you know, for once, I thought... But no one calls it that. No one does. No one. No judges. Of course. Exactly. So he goes, it's Giglio. And...

He says, "I want the record to reflect that." And for once, I actually had a good retort, because usually you think of retorts like, you know, a year later. By the way, the French have an expression for that. It's called dans l'escalier, which means in the staircase. And the idea is that you think of the expression after you've left and you're in the staircase.

For once, I didn't have it in the staircase. I had it on the spot because this was at a time when there was only a written transcript and there's a court reporter there. So I said, exactly how the record's going to reflect that is a little unclear to me, which at least got a laugh from the judge. Because the record reflected Giglio, Giglio, Giglio. It didn't matter. Right. No one knew how it's pronounced. Right. Exactly. Exactly.

Anyway, the kinds of things that Donald Trump asked for was all information about election interference in the 2020 election. Including by foreign governments, foreign adversaries, right? Oh, you're coming to that. Okay. Oh, Mary, that did not escape me. Do you know anything about election interference by foreign governments? Yeah, because Mary, it wasn't just the 2020 election interference. It also was the 2016 election interference.

Whether there were cooperating informants, undercover agents, whether there was requests... On January 6th, right? Yes. Whether there were requests for security on January 6th, all information about voter fraud that would support that there was actually voter fraud, any coordination with the White House in bringing this information

criminal case, all instances of abuse of the FISA process. In other words, what information was obtained in the course of the investigation, all sort of abuse issues, all impeachment information about Mike Pence, including about

All of his classified documents and what happened there because saying that he would have a motive to curry favor with the government. He was under investigation, right, by a special counsel for his having classified documents where he wasn't entitled to have them. And the theory is he then had a motive to curry favor with Jack Smith's team when he testified in the grand jury in order to avoid imprisonment.

his own prosecution is a legitimate argument. I don't think he needs the entire case file of the investigation against mice Pence to be able to raise in front of the jury. Mr. Pence, weren't you being investigated by the government at the very same time that you cooperated with Jack Smith? And didn't that impact your level of cooperation? They can ask that without seeing the entire case file. Yeah, absolutely. Obviously, uh,

I don't fault the defense from going big and asking for a lot of information as long as there's a rational, good faith basis. Some of this was clearly far afield. By focusing a lot on classified information they want, there was a certain graymail problem of we want to get as much classified information. There also was a problem of data that would only be relevant if Donald Trump knew it. Right.

So there was sort of a lack of the prerequisite, which was information that went to his motive and why he believed things. By definition, that would mean he had known about it. So there needs to, I think, be at the very least, there would need to be like an affidavit from him saying, I was aware of this and this. I want corroboration so they can't say I'm lying about it. But

the judge might say, well, you need to tell me that you really knew about this and what you knew at the time to make it relevant. So there was that sort of chicken and egg problem. But I'm going to give you what I thought was potentially fair, because there was so much here that you could just say that's ridiculous. I think that all evidence...

about voter fraud would need to be turned over. I'm confident the government has done that. I don't think there's going to be a lot and certainly nothing material. I think that the information that could be used to impeach Mike Pence, including that he was under investigation, would need to be turned over. But I don't think all of the details or all

all that relevant. But that should be pretty easy for them to turn over. And I suspect that they're not going to fight that in terms, there may be arguments about scope. Right, like the entire investigative file. But because what's important is he was under investigation at the same time. Exactly. And obviously, if there was something that

the more serious it was, like, you know, if there was something that would give him some real concern about his liability, but I don't think there will be. And then I do think that coordination with the White House, to the extent that they, because you want to show was there sort of an improper motive in terms of bringing this, but I do think that that's a little tricky because, you know,

I'm not sure that's admissible at a trial. I know that's not the standard for Brady, but there's a separate discovery rule and process for bringing selective prosecution or vindictive prosecution. Which we talked about last week. Exactly. And I don't think this rises to that level. And so that is a little tricky, but it does potentially go to that issue. Did you have other issues or did you disagree with Bond? No.

No, I had a similar take. And that's why I mentioned earlier, you know, the Mike Pence stuff, because I think it's legit to question about that. I think, you know, and some of the things to your point about lacking sort of a connection here about what Mr. Trump knew just for listeners, like when he's talking about he wants all information of, let's say, foreign attempts to interfere with our election. His rationale is that we had people in government who

in the FBI and elsewhere saying we've got Russia attempting to interfere, we've got China attempting to interfere. That all potentially supports my argument that there was fraud that would have changed the outcome. So I'm entitled to all of that. But never did he make the connection you were pointing out, which is that I was briefed on this or that on the other thing about this massive fraud by the FBI or by the Department of Human Services or by one of our intelligence agencies.

He never says, I was briefed on that. That's why I was briefed.

saying to the world that there was fraud in the election. So I think that he's kind of going really big. In part, there's some kernels, I think, of legitimacy. But I think in part, this is another delay tactic, right? Let me make the prosecution team be almost the whole federal government. Let me argue that I'm entitled to discovery across this huge wide swath of information, much of which will be classified so that we can then delay, delay, litigate. So

So one thing, just in conclusion, is there's no question that DOJ is going to be on top of this in terms of their discovery obligations. They'll file their response. But because of all of the January 6 cases, they will have amassed all of the discovery that needs to be turned over.

really don't expect that they're going to play games here. And I think that the brief that we get from the government is going to say we've basically turned over a huge amount of this already. But as we said, I think this is one where it's important to remember that a defendant is entitled to this, to Brady and

or "jilio" information. And so this is part of the process. I think, you know, to be continued when we see the government's brief, and we'll give you our assessment at that point as to whether we, you know, think they've been fair. I really suspect in this case, knowing Jack Smith, that it's going to be ample. Mary, so nice to talk to you.

Such weighty, important issues today, too. It's like really kind of, I mean, you know, this is kind of what we live for. Exactly. Although I wish it was not. I wish it was not. I wish it was theoretical. I know. And it's like, this is it. Once again, it's like prosecuting Donald Trump, colon, two nerds talking. Yeah, absolutely. Anyway, talk to you next week. Okay.

If you've got questions, you can leave us voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more. The senior producer for this show is Alicia Conley.

Jessica Schrecker and Ivy Green are segment producers. Our head of audio production is Bryson Barnes. Paul Robert Mounsey is our audio engineer. Jim Maris Perez is the associate producer. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.