Submarine Secrets 33:29

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Hello and welcome back to another episode of Prosecuting Donald Trump. It's Monday, October 9th. I'm Andrew Weissman. I'm here with my co-host, Mary McCord. And Mary, it's so nice to be done with our little mini tour of live broadcasts. And it's just The In Me. And it's actually a really good week for that because there were sort of really big things that happened last week. So let's get to it. Yeah.

Yeah, that's right. You know, in recent episodes, I think we've focused a little bit more on the newly started trial in the civil fraud case going on in Manhattan right now. And we've been talking a lot about the D.C. January 6th related case. But there were some revelations that came out last week about sensitive nuclear information that Mr. Trump allegedly shared with

an Australian businessman back in 2021. And that's caused a lot of people to be asking questions about what impact that'll have on the Mar-a-Lago case. So, of course, we will talk about that. But also developments in D.C. that we certainly predicted. In fact, we predicted and discussed with our guest Trevor Morrison last week during a live podcast at NYU. So that's like the other

big development. So those are the two things that we're going to really spend most of our time on is what's happening in Florida, what's happening in D.C. And Mary, you kept on sort of flagging this for us because the Trump team kept on saying they're going to be filing a motion with respect to presidential immunity. It is a fascinating topic. I sort of feel like it's built for this podcast because we can really get into it a little bit more than we're able to

in our TV jobs. So the former president did file that motion claiming immunity when he takes actions within the scope of his office. And so we'll get into the pros and cons of that and what to expect.

And spoiler alert, he says every single thing alleged in Jack Smith indictment was taken within the scope of his office. Yes, exactly. So I'm going to leave the snarky comments about that for our discussion. But why don't we start with Florida? There's sort of procedural stuff. And then there's what I will call horrendous bombshell reporting that, if accurate, is what the intelligence community says.

stays awake thinking about in terms of a nightmare scenario. Big picture is the reporting is that Donald Trump had information in his head about nuclear capabilities of U.S. submarines and disclosed information about

the capabilities of those submarines, both in terms of warheads that were on them and their striking distance, how far they have to be, and gave that information orally to an Australian businessman who then in turn gave that information to scores of people. And all of this happened in Mar-a-Lago because the Australian businessman

is a member of the Mar-a-Lago Beach Club. And it raises the issue of even if you take documents and seize them and take them back from the former president, which he was not supposed to have, he has information in his head.

And so that is the nature of the allegations. So, Mary.

concerning going forward, as you're indicating about just information that's in Mr. Trump's head that you can't retrieve, is the very transactional nature of the exchange, at least according to the ABC News reporting. And this businessman, his name is Anthony Pratt, a

According to his account, as described, I guess, to ABC News by its sources, Pratt was at Mar-a-Lago telling Mr. Trump that he believed Australia should start buying its submarines from the U.S., right? And so this is like already you can see wheels turning, a transactional type of an inquiry, and that's

what, according to these sources, caused Mr. Trump to then lean toward Pratt and provide these two pieces of information, as you just indicated, supposedly the exact number of nuclear warheads that U.S. submarines carry and how close they can get to a Russian submarine without being detected. Now, it's also, I think, interesting

important to know there actually have been negotiations which were concluded, I think, either earlier this year or last year between the United States and Australia, where the U.S. did enter into a contract to provide submarines to Australia. I believe President Biden has said they don't carry nuclear warheads, but there was a submarine deal. So I flag that because certainly we and others have talked about how so many things to Mr. Trump do appear to be transactional. And even though, of course, he wasn't

president in 2021 at the time that this conversation allegedly took place, I don't think he ever stops thinking about the transactional nature of his personal and professional and business life and his political life.

And does not separate the two in the way that, Mary, you and I were part of the intelligence community. And to say that we separated the two is an understatement. Yes, goodness, yes. And the way you handle information. I think there are a lot of issues here that...

Obviously, there's just the national security issue of this information being out in the wild and the problem of essentially loose lip sync ships problem and how easy it was for this information if the reporting is accurate to get out and how easy it would be to have Donald Trump be a mark. We've talked about Mar-a-Lago being a honeypot.

for that kind of activity. I mean, that's what we do overseas. That's what foreign adversaries do. But there's also the criminal aspect. It is a crime to...

give out information orally that you know to be national defense information. Just to be clear, it is not only a crime to give out documents that you knowingly understand are national defense information and you knowingly retain them. It's a crime if you knowingly disseminate them to people who aren't allowed to have them. But that's true with information as well. Just to be clear, the very same statute that the indictment charges, 32 counts,

of mishandling national defense information all relate to documents. But as you indicated, the statute lists all the kind of like documents and writings and code books and things like that, that you cannot

can't mishandle, you can't transmit to somebody else, etc., communicate to somebody else, or even retain. It also explicitly lists or information relating to the national defense, which the possessor has reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation. So that's what we're talking about here. And it makes sense. I mean, imagine, you know, if you have a document and you know it's classified, they

the point of the criminal statute is to say, don't disseminate it, whether it's giving the document or giving the information. So that is an ongoing problem with respect to Donald Trump. It does raise the issue of, again, assuming the reporting is accurate, of sort of the timing of it, why it wasn't charged, could it still be used in evidence in some way? So this is all going to be speculation, but with

You know, our criminal backgrounds and our national security backgrounds that are what I would call educated speculation. I think first the issue of why it wasn't charged. I mean, there could be a whole variety of reasons. I have to say one of my favorite reasons for why things have been happening is I think people need to really understand why.

the time pressure on the special counsel. He was appointed in November, and he has done this amazing amount of work. And

If you just look at the Florida case, there has already been a superseding indictment. They added a count about Bedminster. They added the additional obstruction. So it's clear this isn't like you have oodles of time, all your ducks in a row, and then you make a considered one-time decision because you've scoured the earth. I think it is quite possible that this is just information that was developing.

And they're still pursuing this as part of the national security spill investigation. This is the kind of thing that could come up. And so it has criminal aspects to it. So it is just possible this is a matter of timing. The other is that this is an and or, but it could be timing and it also could be

that it's information that's so sensitive that the government doesn't want to use at a trial. And we've talked about that, which is that the difficult part of these types of cases is that you don't want to charge information or documents that are so sensitive that the information would get out in the wild just by bringing the case. It's been referred to as the Goldilocks approach, which is you want it to be

important enough that the jury understands why you're bringing the case, but you don't want the information to be so sensitive that you're giving up nuclear secrets. That's right. And I would note on that that there are two documents charged in the Mar-a-Lago indictment that do relate to nuclear capabilities. One is a formally restricted document, but the other is a top secret document. This is count five,

It says concerning the nuclear capabilities of a foreign country. And it is so sensitive that even the code words for the designation of its classified nature, its sensitive nature, are redacted. That's how sensitive it is. And so if this information is true, it could be information that the Department of Energy, because if we're talking about nuclear power,

We're talking about classification under the Atomic Energy Act, which is sort of different than the classification procedures for most of the other documents that are charged. And that is what we're more familiar with, normal classification procedures. This is a whole separate thing.

law around classification under the Atomic Energy Act. The other possibility too, Andrew, is it's wrong. What he provided is just not true. So that would mean it's not actually national defense information under the criminal code. And so it couldn't be prosecuted because he just was wrong.

In terms of the details of what he provided. The other is assuming that it is information that is accurate and the government wants to use, it can come into the criminal trial. It obviously could be relevant to sentencing if he is convicted and it can be brought before the judge to talk about this case.

additional risk. But even at trial, it could come in as essentially it's called 404B evidence. Sorry for the nerd quality, but it's a rule of evidence that allows for what's called other crimes. And it goes to motive,

intent, lack of mistake. It also can rebut a defense. If a defense is that I'm very, very careful with documents, I'm very careful with information, I always follow what my lawyers say. I mean, all sorts of things that may come up, you can respond to it, either side. Whoever makes an argument, it opens the door to other evidence. So there are ways that this could

come into evidence, but it's not automatic that it would come in because it is not charged. We talked about this when Count 32 was added about Bedminster, that that made it something that the tape recording of what happened in Bedminster would now come in and you don't have to rely on other crimes. But Mary, I wanted to ask you about something else that happened in case there wasn't enough Florida news. And this was obviously the big thing, but there's a bunch of back and forth and skirmishing about the trial date because there

Donald Trump has asked to have the trial put off for, as you know, he keeps on asking like every defendant to put the trial off. But I think now he's asking to have it for November. Yeah.

which would be at the time of the election. And the government has objected to that. But what's the skinny? What's going on here? Well, there's actually quite a few. Like what I think they're trying to do, Trump's team, is to try to inject a lot of complexities and confusion into the SEPA process. That's the Classified Information Procedures Act, which we've also talked about before, which sort of governs how discovery is handled online.

when you have a lot of classified information, right? So you've got to have protective orders before the government can provide any classified discovery. You've got to have all the attorneys cleared at a certain high top secret level. Discovery can only be viewed in a

sensitive compartmented information facility or SCIF. And then there's all these procedures for the government to, if it thinks that it has things that needs to turn over, but needs to redact portions of it or create substitutions for portions of it, it can go into court and seek that. And then after the defendant gets discovery, has to respond with

what it intends to use that's classified in its defense, and then there are hearings about whether that stuff is admissible, etc. So it's all about trying to make sure there's no surprise at trial when the defense suddenly tries to inject classified information that it didn't give the government notice of and about the government being able to ensure that defendants' rights are respected, their due process rights, without revealing secrets. So interestingly,

One of the things Trump wants to do, and this is partly why the motion for the delay, is it wants to really challenge the government going into court with its Section 4 motion saying, here's all the discovery that we think we have to provide to Mr. Trump, but here's some of the places where we think it's too sensitive and we would like permission to redact things or use

substitutes instead of the original document or other things like that. And Mr. Trump doesn't want that to be an ex parte filing. He doesn't want that to be something that the government files just with the court and addresses the court. He wants the chance to argue against that ex parte filing. Now, I think, you know, it doesn't take a lot of logic thinking this through to think, well, if government thinks something is too sensitive to just

provide without seeking a redaction or a substitution, then obviously having the defense see it in order to argue against the redactions and substitutions kind of defeats the entire purpose of the Section 4 motion. Yeah. So my take is this is an example of where Judge Cannon, leaving aside anything about viewing this more nefariously, just shows a lack of experience. This is very standard. And the idea that she's getting hung up and delayed on this is

It's not a good sign. This is relatively routine. This kind of thing happens, I won't say all the time, but if it's not in a SIPA context, it happens in the grand jury context. It happens in all sorts of ways. And so what she did, just to be clear, sorry, because I didn't say this part, is she said there's this whole big motion for a revised scheduling order so that they can do this. She said, right now, I'm going to stay resolution of this whole big scheduling order while the

We hash out the dispute over Section 4. Now, contrast that to what Judge Chutkan did, because Judge Chutkan in the D.C. case, right? Experienced? Not experienced. Mr. Trump filed a similar motion. She said, look, we're going to keep on going ahead with all of our SEPA filings. And hey, if you want to in parallel debate.

Donald Trump file a motion about why there shouldn't be ex parte Section 4 proceedings, knock yourself out. Go ahead and file it, but we're going to keep going. Yes, exactly, which is exactly what you do. And so, you know, this is where the fact that Judge Chuck can put her trial before the Florida case is so important because she's not hostage to these kinds of delays that are going to happen and probably continue to happen in

Judge Cannon's case. What Judge Shutkin said was really great. She goes, "Hey, you want to make this motion and tell me why the language of the statute and clear DC Circuit precedent does not apply here? Go ahead." She's not delaying what's happening because of that. So that was like the first sign of her being touch—I won't say snarky because she sort of is essentially saying,

you better address those things because the language of the statute's clear, as is D.C. precedent. More prosecuting Donald Trump. Submarine Secrets in just a moment.

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Really good segue, Mary, to DC, because I actually...

found the big issue that's happening there is that finally former President Trump filed his motion saying that presidential immunity should apply to this case, this criminal case. And I think that the big picture, before we get into the merits of this, is that this argument of presidential immunity, which has not been decided before by the Supreme Court,

will likely go to the Supreme Court. And if there's anything that could derail the March trial date, I think it would be this. As Mary, you've talked about, this is the kind of issue that would get decided before the trial, and everything can happen very quickly to get it all the way up to the Supreme Court, but there's no guarantee as to the timing of that. How fast they'll move, yeah. And so...

that that's one of the imports practically is that this is the thing, the big picture for everyone to keep their eye on, because it's the thing that could derail the March date, because Judge Shutkin seems pretty committed to that date. And as you just said, Mary, moving things along. But I think the more interesting thing is really the merits of it. And just big background before I ask you, Mary, sort of like what your take was, is the Supreme Court

has ruled on the issue about presidential immunity in the civil context, where President Nixon was sued by an employee saying that he was improperly fired as a whistleblower and wanted damages and sought damages against the former President Nixon. And the court decided that in this civil context, and they kept on talking about civilly, the rule is

that we don't want the president distracted from all of these civil lawsuits and monetary damages and in weighing the nature of the government's interest in having these kinds of civil cases brought and the presidential's unique role in our system, that the president is absolutely immune for conduct

taken that are within the outer perimeter, that's the term of art, the outer perimeter of the president's powers in a civil case. So what they have not decided is what to do in a criminal case. So that is where it comes up. And so there's sort of this issue of what's the rule in a criminal case? And

Is the conduct even something that's within the outer perimeter? Because if it's not within the outer perimeter, you wouldn't even have civil immunity. So both of those are sort of the issues for the court. What's the nature of the allegations? Are they within the outer perimeter? And second, would the Nixon v. Fitzgerald standard for civil liability even apply here when you've got a criminal case? So I think I've teed that up.

Mary, what do you think? Well, you know, I do want to say one thing before we get into the merits, which is that since we've just been talking about Mar-a-Lago, I think it's important to recognize, again, it can only be within the outer perimeter of your official duties if you were president at the time of the acts alleged. And so with respect to Mar-a-Lago, the reason we haven't seen this same kind of motion is because, of course –

The allegations in the Mar-a-Lago indictment are all after Mr. Trump was no longer president. And same thing for New York, because the New York hush money payments, primarily the scheme happened before he was president. Now, he is alleged to have signed checks, but those are certainly in a personal capacity, not within his presidential. He made an argument they were. Yeah. Good luck. Yeah, right. So this is one that's really going to be affecting everyone.

the D.C. case and the Georgia case as to whether he's immune. So what do you think? That's right. So I think one of the things that's the most remarkable, and I'm not surprised about it, but as soon as you start reading the motion, you see what the tactic here is, which is to put

Each sort of segment of the scheme, the conspiratorial scheme that Jack Smith charged – remember, he's charged a whole series of things, putting pressure on state legislators and state election officials, conspiring to have the fraudulent elector scheme by which –

the electors for President Trump, even though he had not won in the swing states, having those electors meet and send their ballots to the vice president to be counted on January 6th, the pressure on Vice President Pence, all of these different phases of the conspiratorial scheme. Mr. Trump, in his motion, puts these at the highest level of generality. So he's basically saying everything is within my official acts.

public statements and tweets about a federal election and its certification. Obviously, at the time I was president, I care about the administration of our federal election. So of course, it was within my official acts to make public statements about the integrity of our official elections. Of course, it's within my official acts to communicate with the Department of Justice. Think

Jeffrey Clark, the assistant attorney general for the civil division about investigating election crimes. Of course, that's within my official acts. Of course, it was in my official acts to communicate with state officials about the federal election that I have such an interest in, you know, separate and apart from whether I was a candidate or not, right? I have such an interest. Communication with the vice president and members of Congress and even organizing slates of electors as a

He's saying this is all clearly within my official acts and then makes the argument. And he has some statements from case law that he bases this on. The law doesn't look behind that. It doesn't look behind that to see what your motive is, what your intent is. Can I disagree with you on something? OK. I totally agree with you on motive.

that he makes that argument, but intent is where I don't think he addressed that. My view is he elided the issue of motive and intent. And he kept on saying, oh, there's all these cases that say motive doesn't matter. He elided motive and intent and wanted to keep on saying you don't look at motive. That's true. But he then completely ignored intent. That's charged throughout the interrogation

indictment. And that, Mary, I totally agree with you. What he basically did by ignoring intent, he could be saying, there's nothing wrong with having meetings. There's nothing wrong with communicating. I have to say, I thought it was childish that to try and get around this outer perimeter problem, he had to say, I know the law is that you have to accept the charge

for the purposes of the motion, but then he didn't. And he didn't talk in any way about any of the language in the indictment that this was intentional fraud, intentional conduct. That's right. He didn't in any way address at any point that he lost all of these cases about fraud, didn't bring that up. Just all of that was cut out. A good example is

the DOJ letter. He talks about it as if it's just writing some letter. He leaves out that the content was that it's fraudulent. He talks about making phone calls without talking about that the allegation is that he knew it was intentionally lying to people. He talks about the electors, but ignores that the scheme is about fake electors, not what he turns contingent electors, which is the whole ballgame. So in order to make the argument, he

really just ignored the allegations. And to be clear, the law is that

in the court assessing this claim, they have to take the allegations in the indictment as true for the purposes of analyzing the claim of immunity. It obviously remains to be seen whether a jury finds that. But in terms of how the court assesses it, the court doesn't make its own factual determinations. It takes the allegations as true. And I think the key thing that you've hit on, Mary, is that that's not what the brief does. The brief

isn't taking those allegations is true. And so even if he were to win... It's really ignoring the heart of the allegations, right? Because by taking up to this level of generality of communications about federal elections, it's ignoring the actual heart of them. And so even if he were to win on saying Nixon v. Fitzgerald should apply in the criminal context, which is a

huge, huge if, because I don't think it should. But even if he were, he's going to, I think, lose on this outer perimeter argument, because factually, that's not the scenario that we're in. So I know a lot of this, by the way, big picture is this is like the law gets to a common sense conclusion, but it's sort of interesting to talk through like how it gets to it. Yeah. And I think that one of the other...

among a lot of interesting things about this motion. One of the other things that

What was notable to me is how much Trump is really loving to rely, I should say Trump, it's his lawyers, is loving relying on a brief that the United States filed in a civil case brought by officers and others against Mr. Trump, people who were injured in the January 6th insurrection. They brought a civil case for damages against Mr. Trump.

Mr. Trump, pursuant to Nixon v. Fitzgerald, because this was a civil case, has argued that he was absolutely immune for the civil damages. That case was – that immunity was denied at the trial court level. This was also a D.C. case. Judge Mehta denied that mostly. There were a couple of things that he didn't deny, but denied most of that, saying, no, these things that you're alleged to have done are outside the outer perimeter of your official acts.

The case was actually appealed, argued to the D.C. Circuit, and after argument,

the circuit asked for the views of the United States. And the United States filed what's called an amicus brief, a friend of the court brief, saying, quoting a lot of things from Nixon v. Fitzgerald about how capacious the responsibilities of a president under this official acts are, how much they cover, but specifically arguing that incitement to imminent prosecution

private violence would never, you know, would not be within the outer perimeter of the office of the president of the United States. But since that's the only thing that the U.S. definitively said was outside, I think that Mr. Trump's attorneys feel like they can get some mileage out of that government brief in that case. And so it was interesting to me. And I went and read that government brief over the weekend because they had relied on it so heavily. Yeah, you sent it to me and I read it too.

Yeah. Yeah. So just in case you wonder what Mary and I do for fun. Right. On the weekend. So, Mary, I think we're running out of time, but there is something there. Like, this is amazing because there was so much news last week. But there's one other thing. Judge Chuckin denied the motion by Donald Trump to recuse herself, to take herself off the case. There were some language.

Language from two prior cases she had in the January 6th matters, which she said showed that she couldn't be fair or didn't have the appearance of being fair. There were just two quick things I wanted to say about it. One, I thought she did a good job of talking about the judge's role at sentencing and what these

prior defendants had been arguing and how she had an obligation as a judge to address those. And that all of these sort of challenged statements, one, that it's her job to address and to identify what the defendant's saying and then to discuss whether she accepted it or not and why she wasn't.

So I thought it really helped put in context. In each case, the defendant was saying, I should get leniency because I was only doing what the former president was telling me to do. Exactly. And he has not been charged and I have. Exactly. Absolutely. And the other is she said,

You know, I didn't even say what you said. This is one of the statements she wrote. Right, you took me out of context. Yeah, she goes, "At the outset, it bears noting that the court has never taken the position the defense ascribes to it, that former, quote, 'President Trump should be prosecuted and imprisoned,' and the defense does not cite any instance of the court ever uttering those words or anything similar.

So that was her just being very categorical to both put it in context and say, what you are saying I said, I did not do, and you have no support for it. So this is, to me, bulletproof.

No, absolutely. And I think a couple of things are notable. We just hadn't had an opportunity to talk about this. She did it a couple of weeks ago. But here now that she's going to be the one ruling on the motion to dismiss for presidential immunity, we wanted to make sure people realize, yeah, it's going to be her because she denied the motion for recusal. And to the extent people are saying, well, what about an appeal? This is not an appealable order in what we've talked about before, an interlocutory appeal, appeal that you can take before the end of the case after a trial. Right.

This is something that has been held, no, not to be a final order. It's interlocutory. You can't take an appeal of this. Now, of course, if Mr. Trump is convicted after going through a full trial, he can argue on appeal that she should have recused herself. But I see there being, you know, next to zero chance that an appellate court would think that there was an appearance of impartiality that was so grave that he could not get a fair trial based on the record here. And she really established that record recently.

really well in her opinion. So Mary, there is so much to talk about this week and there's so much going on. I mean, the civil case in New York is still going on. The matters that we just talked about in D.C. are going to get fully briefed in the next couple of weeks and then the judge will have a hearing and decide it.

There'll be appeals of that one way or the other. We'll be following what's going on in the Florida case. Just lots to do. And then we have a trial coming up in Georgia of Mr. Chesbrough and Ms. Powell. So lots and lots to cover. In like two weeks. I know. I'll see you really soon. Keep sending me briefs. Absolutely.

If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at nbcuni.com. Thanks so much for listening. We'll be back next week with much more.

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