Live at NYU! 56:51

So it's great being here at the NYU Law Forum. So this is like the end of a little mini tour that Mary and I have done. Not so many when you think about how many miles we've traveled.

Out to Texas? That's true. I kept saying 92nd Street Y. We went all the way to the Upper East Side, which does feel like another world. So yeah, we went to the Texas Tribune Festival, and then we went to 92nd Street Y, but also we were at Georgetown, where Mary teaches. My home turf.

So anyway, so it's really great to be here at the NYU Law Forum. I think all of you probably know me, but Mary, who has come here for various panels and also has graciously come and taught...

I keep on putting the bite on you. Yes, exactly. So Mary has this glittering career. Former DOJ, was a prosecutor for many years, doing sex trafficking cases, a whole variety of everything you do in D.C. in the U.S. Attorney's Office, which is an unusual office because it's federal and state. And then did a lot of national security work. And I think that's how we really first met.

Yes, as I think I was headed. Well, actually, when I was criminal division chief and we had some pretty significant national security cases like the attack on the mission in Benghazi, Libya, pretty significant national security case. So, yeah, you were just a little at the FBI as the general counsel. And now Mary does really great work at ICAP bringing cases such as suing domestic terrorist

gangs, that's my term, not necessarily yours. Unlawful private militias, that's what I call them. Right. So, Proud Boys, Oath Keepers in a civil context and has been doing really incredible work

But we wanted to really switch to something that we started talking about actually yesterday on a podcast because we're here at NYU and like less than a mile from here, we have a civil fraud case going on with respect to the former president and two of his children.

children and some of his companies and the former chief financial officer in connection with a variety of financial fraud causes of action. The brief overview is that you have seven causes of action. The state court judge on the first cause of action granted summary judgment for

for Letitia James, the attorney general. And that is a so-called Martin Act violation. It's routinely brought in New York. And the trial is not really with respect to the liability on that first cause. It is with respect to

liability on the six other causes of action that all sound in fraud in various ways. And then there is a sort of damages component in terms of what essentially what's the remedy both on the first cause of action as to which liability is found and if liability is found on the other six

what the remedy would be. And as we discussed yesterday, and I don't want to be too repetitive of our podcast yesterday, which you should tune into, it's not really damages here, right? It's called disgorgement, because importantly, this is a case about equity. So it's not about did any of the banks or insurance companies lose money? It's did Trump and his companies benefit financially? And so the remedy is what do they disgorge

equivalent to how they benefited, not about what was the injury to the banks, if that makes sense to you. And I think he in particular and his attorneys try to confuse that and suggest that because the banks didn't lose money on him, at least according to him, there shouldn't be any

payments at all. That's sort of that no harm, no foul. No harm, no foul. In other words, that the banks were ultimately repaid. Anybody who's done sort of financial fraud cases on the criminal side, you know, you don't get to basically trick a bank into making loans or giving you a better rate in terms of the volume of the loan and then the amount you pay and then say, but don't worry,

I paid it all back. You know, that wasn't your decision to make. One of the witnesses, I think the only witness so far who's been on is somebody who was an external accountant for the Trump organizations. And I worked on the Enron case, and it just reminds me so much of what various Enron defendants said with respect to outside auditors, which was not...

There's a legitimate argument, which is we needed outside accounting help. We didn't know what the rules were. We presented all of the facts to the accountants. They told us how to structure what we were doing and we followed all of that. That would be a legitimate use of reliance on accountants. The same way you'd have reliance on lawyers if you tell them,

what all the facts are. - If you tell them all the facts. - Exactly. - Let's be clear, 'cause we're gonna be talking about attorney-client sort of advice of counsel as we get into some of these criminal cases, because for sure we expect that to come up. - So that's the legitimate use, but that's not,

what seems to be being presented. It's not what they're testifying to. Yes, exactly. David Bender's testifying. Yeah. So David Bender is the outside accountant. And what you don't get to argue if you are a defendant accused of either civil or criminal fraud is that my outside accountant didn't stop me.

And didn't catch the fraud. And so, and that's basically what's going on. When I gave fictitious and false and fantasy information to my outside accountant. Yes. Yeah. So that was a large part of some of the cross yesterday. It is true that they didn't make the outside accountant seem like the best person.

accountant in the world. That also reminded me of Enron. Part of what Enron was looking for was... We're up to two anecdotes now. I'm counting. Oh, yeah. This is like a constant thing. It's like I always tell anecdotes and Mary is like, where's the substance? Although this anecdote is related. They're substantive. They're often substantive. Yes. And sometimes they're not at all. Yeah, sometimes. But now you've interrupted my anecdote. Sorry.

Enron had to do with Enron. Yes. So a lot of times Enron would be saying, you know, I relied on accountants, but you just can't say, A, they didn't catch it, and B, they weren't very good. And that is a lot of what Enron was looking for.

they didn't want a particularly diligent outside group looking at what they were doing. The more that they could get people who were going to not be terribly exacting or not be very thorough, that was good for them. And so I suspect we're going to be hearing that argument from Letitia James. Folks may recall, right before we go on to the gag order, which I know we want to talk about before we bring our guest up, folks may recall that this accounting firm

you know, after a lot of litigation over whether its records could be subpoenaed by the attorney general and before that by the district attorney, basically disavowed later the accounting and saying, we don't stand by the materials, which we now know is because they felt like basically garbage in, garbage out, right? If you're getting bad information in, your accounting is based on that. And so they basically disavowed it, which is pretty, you know,

-Significant. -Huge. -Yeah. -It's huge. So, obviously, you all probably heard in the last 24 hours, the judge in the New York civil case issued a gag order, a limited one, because it was very focused on the statements that Donald Trump made with respect to the judge's law clerk. And the gag order was essentially, "Do not speak, do not write,

do not pass go, like don't do anything with respect to court staff. And this is my hyperbole, which is, you know what? You can run for office without attacking the judicial staff. This has nothing to do with free speech. This is about rhetoric that incites violence.

Since we're in a law school, this is not really a First Amendment issue. This deals with when you are a defendant out on bail or you're in a court proceeding here, obviously, in the civil case, it's a defendant in a civil case brought by the attorney general.

There are restrictions on what you can and cannot say. Some people would say none of this is really First Amendment protected to begin with because certain types of speech is just not First Amendment activity. But certainly in a criminal context,

There are all sorts of restrictions placed on your liberties when you are out on bail or when you're not out on bail. In other words, you can be put in jail. You can be told that you can't have a gun. You can be told that you have to report in certain places. You can be under house arrest. There are all sorts of things that happen to you.

merely because you are charged based on probable cause with a felony or sometimes even a misdemeanor found by a grand jury. And so the court has jurisdiction over you. And one thing what Mary and I were looking at is to see in the last 12 hours, what has Donald Trump been doing? And it's been kind of interesting because he so far

it has definitely been a sort of a brushback and that the things that he is talking about or posting about definitely do not run afoul of what the judge said. Which was very explicit. Don't...

attack court staff or even speak about court staff. But we were talking earlier, he's almost like a toddler now going right up to that line, right? His post this morning, again, attacked the civil case, again, attacked the Attorney General Letitia James, attacked

again, attacked the court. Proceedings as being part of political persecution. These are all things we know agitate his base, sometimes spur people in the public to take action, violent actions. And that's one of the things we talked about last week in our episode on political violence. We talked about a little bit yesterday, but he's at least smart enough

to know I'm not going to blatantly violate the judge's order. I'm going to do all these other things. And so this is, I think, is the creep that we're seeing, right? Right now there is pending a motion in the federal... No pun intended. Right. That's right. But, you know, the district court case, the federal...

district court case in D.C., criminal case involving January 6th, there is a pending motion, as I'm sure you all know, to get a limited order restricting his speech to keep him from denigrating not just court staff, but the judge, prosecutors, FBI agents, witnesses that would taint the jury pool and just affect the administration of justice. And so,

as we've said before, the chutzpah to be continuing to kind of make the statements that he's been making while he's got that motion pending, now that he's under a gag order here. I think these are things that are also going to be considered by other judges in other cases. And, you know, some of our, I think, greatest concern is that we all know that when

Mr. Trump says things that are inflammatory, there are people out there who take actions. So we know these have these impacts. And I think that's what Judge Angoron knows, too. And he's thought, no way, no how, you're not doing this on my watch. He has to protect his staff. Yeah. So my reaction was, I mean,

I know that the former president is doing this to sort of goad judges and to play the victim and is really sort of daring them to do this. But it really shouldn't take, in my view, an attack on the judges' staff. I mean, that's outrageous. But...

They're all they all should be viewed that way, whether it's an attack on Ruby Freeman and Shea Moss, whether it's an attack on witnesses, comments about Mark Milley denigrating what happened to Paul Pelosi.

It's all of a kind, and I totally understand why the judge would be protective and extremely upset about the attack on his law clerk. He had every right to be, and I think it was totally appropriate to issue that order.

new election matchup with new energy surrounding the race. There is an electricity on the ground. Join your favorite MSNBC hosts at our premiere live audience event to break down all that's at stake in this historic election. The election of 2024 was always going to be a big freaking deal. MSNBC Live Democracy 2024 Saturday, September 7th in Brooklyn, New York. Visit msnbc.com slash democracy 2024 to buy your tickets today.

All of you know our guests, and we rarely have guests. And we try and find people who are really experts in particular areas to help educate our guests.

us on some of the many, many novel issues that arise when there are criminal cases for the first time in history against the former president of the United States. We want to spend a lot of time talking about the removal issues in Georgia that raise

statutory issues about removal and also presidential immunity issues and defenses that arise in connection with those. So all of you are very aware of our next guest, who is Trevor Morrison. But for everyone who should know of him, let me give you a brief bio. So obviously he teaches here at NYU in constitutional law.

And also served for a remarkable nine years as Dean of the law school until last year. Before that he was at Columbia and before that at Cornell. He has this incredible glittering resume in addition to that of having worked in the Office of Legal Counsel, the Solicitor General's Office, the White House Counsel.

and clerked for the remarkable Justice Ruth Bader Ginsburg. So we're incredibly lucky, as you all know, to have Trevor here to talk to us about removals and presidential immunity and make us smarter. Thank you.

So welcome. Thank you. We always do level sets. And since you've spent time in Washington, we use a lot of these sort of Washington lingos. Sure. So just to make sure everyone is up to speed, there are various removal petitions that were made in Georgia, first by Mark Meadows.

Then by former chief of staff, Jeffrey Clark, former assistant attorney general for the civil division. And for a brief moment, the acting attorney general for less than a day on January 3rd, I believe. And then there are three people who are so-called fake electors.

All of them filed petitions to remove their state criminal case in Georgia to have it go to federal court. The district judge, the federal district judge, denied petitioning.

all of them in written opinions. After hearings. After hearings. Evidentiary hearings. Exactly. Some with more evidence than others, as Mark Meadows famously testified. Jeffrey Clark did not. He tried to submit an affidavit and did submit affidavits also from Edwin Meese, former attorney general in the place to seniors. And

Those are now working their way through up to the 11th Circuit. I think the Meadows briefing is actually all done. And so I think we know who the panel will be. We don't know if they will actually have an oral argument. And I don't think they've set a date yet.

But, you know, it's not as though necessarily a decision in the Meadows case will govern the others because each one had their own arguments for why they were federal officers, why what they did was within the scope of their official duties under color of their office, as the terminology is used, and why they have federal defenses. And some of those federal defenses, I think, are what we really want to talk to Trevor about. And that's why the judge in each case

issued an opinion. And with respect to Mark Meadows and Jeffrey Clark, he said, yes, you were federal officers or you were at the time. But I don't find that what you were doing was under the color of your office. And so I'm remanding your cases back to state court. With respect to the three fraudulent electors, these were the Republican nominated presidential electors in Georgia who normally would own, well, not normally,

under law would only meet to vote on the date the electoral college meets to vote if their candidate won their state and of course their candidate did not win their state but nevertheless they went and met on the day that the electoral college meets to vote they voted and then they certified that

their electoral ballots were true and correct and sent them up to Capitol Hill to be counted. Those three, the judge made a different decision. The judge said, you're not even federal officers. Being a Republican nominated or Democrat nominated, it wouldn't matter. Presidential elector does not make you a federal officer, nor were you acting under sort of like the direction of a federal officer. So he kind of kicked those cases out at step one without even getting to step two.

So, Trevor, I have a question, which is, why is there even a removal statute? Like, what was the purpose of it? Why should somebody who's charged

criminally in state court where, you know, I think Mary and I were both raised in the idea of like, you know, the state wants to bring a criminal case, like they can do what they're going to do. I mean, they have to comply with certain constitutional limits, but the idea of removing it seems like, okay, why would we do that under a federalist system? Right. Yeah. So it's super, hey, hello. It's nice to see all of you. Ever since they hung my portion on the wall, I don't come into this room anymore. So, yeah.

It's a super unusual circumstance, but it's not new. Just to underscore the unusualness of this, if any of these removals sticks, you'll have the Fulton County District Attorney trying state criminal charges in a federal courtroom in front of a federal judge in front of a jury drawn from the federal court.

And that's actually one of the tactical reasons that one might prefer that because there's quite a difference between the relevant federal district and Fulton County, Georgia, in terms of its population and what the jury might be.

So very strange, but not new. The first federal officer removal statute was passed in 1815. This is a point when the subject matter jurisdiction of the lower federal courts was really quite limited. But they had jurisdiction to hear criminal cases in certain instances. And the idea there was there was fear. This was sort of in the aftermath of the War of 1812. There was fear in particular that New Englanders who were hostile to the trade embargo with England

would

not take kindly to federal officers who had been charged with enforcing the trade embargo in that part of the country and might try and use the weaponry of local state officials to punish them in different ways, maybe charge them criminally. And so the idea was to get a fair forum, something for law students here a little bit like what we think about when we think about diversity jurisdiction and the ability for an out-of-state defendant to move a case from state court to federal court relying on diversity jurisdiction.

Here, the idea is not that this case could have been brought in federal court in the first place. These are state criminal charges, and they can't be brought in federal court in the first place. The statute says the officer can remove if, as Mary was just saying, they show that they were a federal officer at the time, that they're being prosecuted. It also covers civil suits, actually. But here they're being prosecuted for acts taken under color of their office.

And then a third requirement, which is not in the letter of the statute, but the Supreme Court has construed as being implicit in the statute, and that's that they raise an at least colorable federal defense.

So it wouldn't be enough that you say, I'm being charged as an officer of the United States. The acts in question were taken by me under color of my office. But here's the thing. I just didn't do what I've been charged with doing. I'm just factually innocent. You don't get to remove that case. You have to add at least one colorable federal defense to remove. And so...

That's what's going on here. And it's been a possibility, as I say, there hasn't always been a removal statute. There were periods of time when it sort of lapsed and then another one was passed. But this general federal officer removal statute has been around for many, many decades. Well, it's so interesting because the protection of the federal removal statute seems so slight because you still have...

the criminal charges, you still have it under state law. You still have the same prosecutors

And so, leaving aside the jury issue, which is, you know, may or may not be different depending on where it is. And it's not obvious that it would have been different in 1815 if it was the original idea. So, what you're really getting is a different judge. That's a judge. But if the judge is following the law and they're supposed to adhere to this state law in the case, even though they're sitting as a federal judge, it just seems like a pretty slim read in terms of the protection that they were worried about.

I agree with that, although the difference between federal judges and state judges on an issue like, you know, the blockade in the 1810s really might have been quite a significant issue. It's interesting to me that from the very beginning of the union, the Judiciary Act of 1789, there was a concern for the bias of state court systems against out of staters in particular. I don't know that any of that holds today. I don't know if Donald Trump, for example, has any reason

to have greater faith in a federal judge to whom he might try and remove his case if he tries to remove his versus state. Today, I think it's about delay, jury pool difference, and just available tactics to sort of forestall things. Although it's worth noting here, given your mention of Donald Trump, that he has not yet. Yeah, he has not. And his attorneys actually filed a paper saying he is not going to move for removal of the Georgia case.

But I think that does kind of get us to like, what are the defenses raised? And those who did try to seek removal offered as defenses because that defense is similar to what we expect Donald Trump will raise substantively in motions to dismiss in both state court and in federal court in D.C. Yeah, correct.

So, let me take that in two parts. The Meadows decision sort of refusing the removal, Judge Jones' opinion, federal judge, and effectively remanding the case to state court, and then his more recent opinion reaching the same result, but separately reasoned, as you say, in Jeffrey Clark's case, rely on the second of these three criteria that we've talked about, federal officer,

take another color of office and then colorable defense. He doesn't reach colorable defense. He doesn't reach whether there's a colorable defense based in federal law. We should talk about that because that's going to be where Trump's defenses are, both in state court in Georgia and in federal court in D.C. And there's every reason to expect, as you've said, that his defense will have a very similar shape to the kind of defense that both Meadows has.

and Clark have raised. The judge, I think, wrote very thoughtful and careful opinions in both. And I will say, I'm worried that he's wrong.

I'm worried that he's wrong in concluding that the acts in question weren't taken under color of their office. And it's a complicated and pretty long analysis, but I'll just give one part of it. There's a part of the judge's analysis that focuses on a federal statute called the Hatch Act, which is not a part of these cases. These are state charges, obviously. But the Hatch Act, in summary, basically prohibits federal officers from engaging in sort of electioneering activity, political campaign activity,

And so let's think about the phone call to Brad Raffensperger. Right. The reasoning, as I understand it from Judge Jones, is something like, OK, that was not official. That was that was electioneering. That was that was Trump as candidate calling Raffensperger and people helping his campaign in the call.

Therefore, Meadows, when he participated in that call, wasn't acting within his authority as chief of staff because he doesn't have the authority as chief of staff to do that kind of thing. Therefore, this set of acts was not undertaken under color of his office as chief of staff. So I think the judge got everything but the last thing right. If what under color of office means is, did you have the lawful authority to do that thing?

then the under color of office analysis becomes the same as do you have a colorable federal defense for it, or in at least a lot of cases it does. And that's really not the point of this language of under color of office or similar language that some of our students might know about under color of law.

42 USC 1983, the most important civil rights cause of action that enables private plaintiffs to sue to enforce their federal constitutional rights requires there that the person being sued have acted under color of law.

This is an old term. It's actually centuries old in different formulations, under color of law, under color of office. Judge Jones thought they're different. You disagree? I'm not for these purposes. There's a really terrific article written by Professor Stephen Winter in the early 90s who traces the history of this. It's an important opinion by Frankfurter and dissent about this. But it's clear that under color of office was meant to refer to things done without legal authorizations.

but using the trappings of your office. When Donald Trump calls and basically threatens to sick the DOJ on Brad Raffensperger, if that threat is credible, it's because he's bringing the trappings of his office with him. And I think the same would be true with Jeffrey Clark. One of the key things there was that he tried to get

the acting attorney general and the acting deputy attorney general to sign off on a letter that would be sent on DOJ letterhead. The whole point was it was going to be-- The force of it was that it was under color of office, that it was part of the DOJ. And of course, the acting attorney general and the deputy attorney general said, "No way, no how." Because it's a false statement. But in terms of looking at that, is it under color

I mean, to me, that's the key there. There's no question it's not that they're accused in both situations of doing something that's unlawful. Correct. But the question is whether it's under color of office or is it something so outside of

what they're doing, what their role is, say the personal act. They're effectively acting as a private citizen. Exactly. And I think the way I looked at it, because I used to do a lot of corporate criminal prosecutions, and the way that corporations are liable is that you impute

under respondent superior, the actions of an employee that is taken within essentially the color of law, which is in the color of their responsibility and employee's responsibility at the company.

Years and years ago, when responding to Speria was being challenged by corporations, they said, "Well, of course we're not responsible because these employees committed crimes." And that's not under their employee role because they're not allowed to commit crimes as part of, you know, employee of ExxonMobil or, you know, whatever, pick your company.

And the court said, "No, no, no, no, no. That's not the analysis. It's whether they were doing this as part of their employment, using the trappings of their employment, as opposed to did they just, when they went home, did they shoot somebody completely outside of their role?" And so you impute their knowledge. And so when I looked at this, I thought, well, this has sort of been worked through, at least with respect to different bodies of law.

In 1983, it's been worked through in a big way. I was just going to say, for students, a lot of you may be interested in police excessive force cases. So these issues come up all the time. Is the police doing it in their uniform? Like while they're out on patrol, does that make it under color of law? Maybe so. Does that mean they're going to be immune?

Maybe not. And we could spend a whole entire episode on qualified immunity. But I think that does get us to prong three. So I wonder if you would say that Judge Jones, a lot of what he said about the second

-Criteria, right? -Plies to the third. Really should have shifted over to the third, which is, do you have a defense that you are immune from prosecution for this because it really was within your official duties? Exactly right. So I think that when I read his opinion, like a very high fraction of the under color of office analysis applies really to the third. And I think that means that the 11th Circuit could well affirm

the remand, but just on the alternative ground, on a different ground than the one he relied upon, which is that the acts that Meadows and Clark are accused of are not acts for which they have a colorable federal defense. So what would be the colorable federal defense? And here it may be easiest to start with Trump and then to work back to Meadows and Clark.

Maybe even before that, I'll say, in a kind of ordinary federal officer removal case, what's the colorable federal defense you would typically see?

I first got to know all of this stuff in the course of writing a law review article with my former boss, Seth Waxman, relating to a case called Horiyuchi from the 1990s. And this is a case arising out of a sort of standoff between federal law enforcement and some separatists in Ruby Ridge, Idaho. And there was a shooting and an FBI sniper accidentally shot and killed an unarmed person on this compound. There were lots of armed and dangerous separatists. This person was unarmed.

He was charged with a state felony by the local DA, removed the case to federal court, and then there was a long litigation. Ultimately, the charges were dismissed. But his federal defense, his colorable federal defense, was that he had authority to use deadly force in certain circumstances from a combination of the federal statutes that create federal law enforcement agencies, the regulations, and then even the sort of rules of engagement that he was operating under.

So we don't have any of that here. And that kind of immunity usually travels under the rubric, which people will be hearing about some, of supremacy clause immunity. Supremacy clause of the Constitution makes the federal constitution and laws supreme. Anything to the contrary in any state constitutional law is notwithstanding. So supreme federal law trumps state law, no pun intended. I know.

I've tried to excise that verb from my vocabulary, but sometimes you just have to use it.

Here, if Trump in D.C. is liable to say, I was acting as president, I was acting within my authority as president, he can't point to some statute giving him a role in the administration of elections, which is really a state thing, even today.

when it's for federal office. He can't point to any provision of the Constitution specifically giving him a role in that, nor can he point to any statute giving him a role in that. Nor can he point to anything in the Constitution that gives the president absolute immunity at any rate, right? Correct. So here's where we're going to pivot from Supremacy Clause immunity to an immunity that's been worked out by the Supreme Court in a case called Nixon versus Fitzgerald. And this is where...

former President Nixon was sued civilly years after leaving office for things he's alleged to have done while in office.

And the Supreme Court said presidents and former presidents are absolutely immune from civil liability for actions taken within the scope of their official duties. The outer perimeters, right? Even the outer perimeter of their official duties. So he's going to say, well, the same must be true for criminal liability. And when I was calling Brad Raffensperger, I was acting somewhere within the outer perimeter of my official authority as president.

And then Meadows is going to say, and my job was to serve the president. And so I have the immunity that he has there because I was helping him do his job. And Clark is roughly going to say the same. So that's nonsense. This conduct was not commonplace.

colorably, arguably within the outer boundaries of the president's official duties. He has no official duties with respect to trying to win the election by threatening state election officials to come up with the right number of votes and only the right number of votes for the outcome of his election to change.

He will say that there is a kind of general federal interest in election integrity across the country. He will say that parts of the Justice Department can bring federal actions if they determine there was some kind of certain kinds of illegality in the administration of elections, even at the state level. That's true. It's just that there's no plausible connection between those federal interests and the things he is alleged to have done

Same for Clark, I think, although Clark is going to say, well, I had a particular view of the law and that's what I wanted to express in this letter. But I think it's just tendentious. I think at the end of the day, it's not a colorable federal defense. So to me, I mean, the language of the second versus third is like the judge is sort of right, but got there the wrong way. Yeah, I agree. Because he had much stronger language in ground three than for ground two. Very true.

By the way, we in the Mueller report were dealing with the same issue because we had to deal with there was going to be some sort of claim of immunity. And we actually, as opposed to just looking at it in terms of, is there anything in the Constitution that would have permitted this? Our point was, Michael Dreeben and his team, and actually the current Solicitor General of the United States was on our team, was that it actually is a violation of immunity.

your oath of office under the Constitution to be doing this. So far from being authorized, it's actually a violation. So, I mean, I think that, I think it's going to be a very hard argument to make. And just to remind people, obviously there was no prosecution of Donald Trump brought as a result of the Mueller investigation, but that was in really because the Department of Justice has taken the position for decades that you cannot indict a sitting president. And

By policy.

You can't indict a sitting president. Now, I will just say before we move on, he did then go on to write many, many, many pages about all of the evidence that would arguably support every element of a number of different various crimes. So there you have it. That's true. Yes. Yeah. Underappreciated. Yes. Yes.

MSNBC's Lawrence O'Donnell. When I was working in the Senate, I didn't realize that it's the perfect training for the job that I have now. Covering government, covering politics, the complexity of it all. Mastering the detail is crucial to being able to present anything.

that happens in Senate buildings or any of the other news centers that we have to focus on every day. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC.

When news breaks, go beyond the headlines with the MSNBC app. We begin with breaking news from Washington, D.C. Watch your favorite shows live. It can feel difficult to wrap your head around all of the news that will just not stop unfolding. Get real-time analysis from live blogs to in-depth essays and the latest updates on the 2024 election. A point or two could be all it takes to sway the outcome. Go beyond the what to understand the why.

Download the app now at msnbc.com slash app.

On the MSNBC podcast, How to Win 2024, former Senator Claire McCaskill is joined by fellow political experts and insiders to examine the campaign strategies unfolding in this all-important election. We have emerged with the teacher, the coach, the veteran, the governor, Tim Walz. I always think it's better to have somebody on the ticket that has actually won in a state that's hard. Search for How to Win 2024 wherever you get your podcasts and follow. New episodes every Thursday.

So we're going to turn to the questions. So we have various questions. I think we have three. So one for each of us that we're going to turn to. So Trevor, this is a question for you. And it deals with

Something that Judge Ludig has talked about, Lawrence Tribe has talked about. It's gotten a fair amount of play. But since we have you here, we can get your views on it, which is this issue of does Section 3 of the 14th Amendment apply to enable the requisite state official to bar President Trump from the ballot for the presidency?

So, as you know, this is sort of wending its way through various courts. Various courts. And various people have weighed in one way or the other. Trevor, what's your view? Well...

I'm going to read. I know you all have your own copies of the Constitution. I love this. There's one in my backpack. So you can read along and you're a copy, but I'll for the folks. Just so everyone knows, since this is a podcast, is that Trevor has pulled out his handy dandy pocket sized Constitution. This is what you get when you have the former dean of NYU Law School here.

Don't leave home without it. So here's what Section 3 says. Section 3 of the 14th Amendment. No person shall be a senator or representative of Congress or elector of president and vice president or hold any office, civil or military, under the United States or under any state.

So, you can't hold any of those offices if having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution, you have engaged in insurrection or rebellion against the Constitution or given aid or comfort to the enemies thereof. But then it says Congress can excuse this with a two-thirds vote of each House.

So there are at least three questions that are raised here, I think. The first general one is, is Section 3 of the 14th Amendment what we would call self-executing? Does it require an act of Congress in order to implement this? Or is it directly enforceable in litigation either in state court or federal court?

There's no, like, totally clear answer from the Supreme Court to that question. There is a case called Henry Griffin, I think, that suggests that implementing legislation might be needed. But I think you mentioned some of the people who've weighed in on this publicly. Actually, the sort of longest piece of writing on this was...

was a law review article posted over the summer by two quite well-known, very smart, very conservative law professors named Will Bode and Michael Stokes Paulson. And they argued to me quite persuasively that the section does not require implementing legislation and that it is directly enforceable by the courts. But one could take different positions on that, but that strikes me as the right answer. And even just briefly, you know, even if it doesn't,

require it, there still is that question about what would be the process that is due, right? Correct. So if there's going to be a judicial proceeding, is this a criminal trial? Is it a civil trial? What is it? Those are hard answers that are going to be worked out in the litigation that's going to be brought, which will be over, you know, let's say trying to enjoin state officials from even listing candidate Trump on the ballot because of an allegation of ineligibility. That's one. Second is,

Does it apply to someone who served as president who is seeking the presidency? Now, you might think, well, it must apply to someone who previously served as president and seeking the presidency. If there's anyone you would want to render ineligible because they've engaged in insurrection or rebellion against the Constitution of the United States, I mean, isn't literally the first person you would list? Start at the top. Yeah. Right.

But there is a bit of a problem there, which is president is not explicitly enumerated here. If it's covered, it would be on the idea that the president is an officer of the United States. And that one turns out to be trickier than you might think. Here, I disagree with folks like Professor Tribe, who's a friend whom I admire greatly. It is not as bonkers as it might seem to suggest that the president is not an officer of the United States. For at least some purposes, it's quite clear he is not.

Article 1 and Article 2 together refer to the process by which officers of the United States are appointed. The president nominates them, and they are, if they're not inferior officers but superior officers, they're subject to senatorial confirmation.

Well, that's not how you get a president of the United States. Presidents and vice presidents are elected. And in part for that reason, there's a long line of OLC precedents, Office of Legal Counsel opinions, saying that at least for purposes of those clauses, Antonin Scalia in the early 70s wrote an opinion saying the president and the vice president are not officers of the United States. But don't worry, because we have a federal officer removal statute. Is the president...

an officer of the United States under that statute? I think we would say yes, which is to say the same word can mean something different in different contexts. And this list is so comprehensive. The idea that, like, it was intentional to leave the president out of this list

I think defies common sense and Bode and Paulson argue there's no real evidence from the framing of this provision that there was any intent to exclude the president, which leaves us with, did the president engage in insurrection or give aid and comfort to those who did? That's the hard factual question about January 6th. That's the question that Jack Smith's charges have avoided so that it won't be part of Trump's trial in Washington. I think you can make a very good argument that the answer is yes.

I think the real question is, what will the Supreme Court say about this? The Supreme Court's easiest out would be to say Congress has to pass implementing legislation. And if I had to predict, I would say the court, which is going to answer this question inevitably, is going to basically duck it by saying it needs implementing legislation. But I don't think that's the right answer.

Would that be true if somebody who is 34 ran for office? Would they be able to say, well, there's no implementing legislation? I think not. In the case of members of Congress anyway, there's the famous case of Powell versus McCormick involving Adam Clayton Powell. And

His objection when he was unseated from Congress is that the House had effectively added a qualification beyond the ones that are enumerated in the Constitution for who can be qualified to serve in the House.

The court took that to be justiciable and took the addition of a qualification there to be something that it could say was illegitimate. So I don't think the court would say you need implementing legislation in that context. But here, in part for questions of what kind of judicial proceeding are you even supposed to have, I could see the court, again, I don't want to say that that's the right outcome, but I think a kind of political desire of the court not to be the one to say he's ineligible.

It feels likely to me that that's where a majority of this court would go. I don't think they want to do that. And age is also just an objective fact, unless, you know, you were an orphan and lost your birth certificate. Well, that's true. Like, when does it start? Yeah, okay. Good. Fair point. All right. Here's one for you, Andrew. What can be done to address the repeated and ongoing attempt by individuals such as Mr. Trump to characterize their prosecution as political witch hunts,

which seems to be a very persuasive to their political supporters. Can or should the Justice Department or media or the executive branch or judges in these cases be doing more?

So I think we've spent a lot of time today and yesterday talking about the so-called gag order, but I'm going to focus on the part about could DOJ be doing more or state prosecutors? And my view is yes. And I think it's sort of interesting to see what Merrick Garland is doing because Merrick Garland has said that

that we speak where it's standard line, which is we speak through our filings, we speak in court, and that's it. And that is definitely one model for the Department of Justice. And it leads to this very...

different imbalance because you have the defense speaking and you have the government not speaking outside to sort of mold public perception. But you did notice that one, Merrick Garland has, even at the time that he gave press statements that did go a little bit further than the actual charges, even if it was just to defend the Department of Justice or to talk about who made the decision to bring charges or to do a search. So he did

give some gloss. And then most recently, he was on 60 Minutes talking about sort of the role of the department and a variety of other issues about sort of principles and what the importance of the rule of law is. And so he has been stepping out a little bit of this sort of traditional role.

Obviously, I was trained a lot by Robert Mueller at the FBI. And so that's sort of the very, you know, you live by the press, you die by the press. It's like you don't you just don't do press at all. And the other model, which I think is one that works.

people should be following more is the Archibald Cox model. You obviously do not want prosecutors to start talking about why a defendant is guilty and the specific facts of the case. Like that is- Boosting the credibility of witnesses, those kinds of things. Exactly. That is off limits for all the reasons that like you and I have talked about our reaction to James Comey when he talked about his personal views with respect to Hillary Clinton and

as he was recommending that she not be charged. I mean, that's just so outside of what the Department of Justice and prosecutors should be doing.

But it's a different matter to talk about the rule of law, to talk about why charges are consistent with how the department has handled other cases that are similar. And so there is an educational function that can be brought to bear. And I think if you look on YouTube, you can still get the Archibald Cox very famous press conference where he explained to the public

why he was still seeking the Nixon tapes. Obviously, he could have just filed a brief in the Supreme Court and it would have been

very turgid and legalistic and wouldn't have gotten the same play and it wouldn't have been as accessible. Instead, he explained in plain English why this was so important to do and gave an admonition that he wasn't going to talk about the guilt of Nixon or anyone else and he was limited in what he could say. One of the things that he did in addition to speaking about the substance,

is it allowed the public to see the person and to get a read on who this person is and to take a measure of the man or woman and why they're doing it. I thought with Merrick Garland, whatever you think about Merrick Garland in terms of his decision-making, if you think he should have been too aggressive or not aggressive enough,

there was just no question, in my view, of his credibility and good faith and that he was really trying to uphold the rule of law. And so that's just a very useful thing for the public to see. Transparency, really, I think is a good term to put, you know, some transparency is in what is the process the department goes through? What are the

principles of federal prosecution that govern these decisions. And, you know, why is it so important to have independence from the White House? All of these are things that not everybody just knows. I mean, those of us who grew up in the Department of Justice, we know these like, you know, it's like the Bible or something, but like it's not common parlance among the public. And, you know, those are things that if he doesn't get up there and talk about it, well, then it's just left to people like you and me, the three of us to talk about it. Yeah.

Which we do, of course. Exactly. It's just with a little bit more weight when it comes from the sitting attorney general. So here's a question, Mary, which is going to be this good because we've saved the hardest one for you, which is, would you say the most straightforward prosecution is that of Trump and his election interference call to Georgia Secretary of State Brad Raffensperger, the call that Trevor was talking about?

If not, which of the indictments would take the least amount of time to prosecute and sentence? Yeah. Yeah. So as my kids, who are now grown, always ask me, like, what's the best or what's your favorite? I'm like, I don't have favorites. I get, you know, pros and cons to everything. And that's really my answer here. Like,

So certainly that's a strong charge. And it's not just, you know, the basis for some individual charges in the Georgia indictment. It's also part and parcel of the entire RICO conspiracy. It's also part and parcel of the three conspiracies that are charged in the federal indictment in District of Columbia.

The facts, you know, if you listen to the tape of the call, all 102 minutes, I think it is, which I did listen to, although it's been a long time. I mean, it's pretty stark. It's pretty dramatic. I mean, the secretary of state says multiple times over and over and over again, we've done audits, we've done recounts. There is no evidence of any significant fraud that would have changed the outcome. Yet the former president persists.

persists in saying, I just need you to find 11,000, what is it, 780? 780, I think. 780 votes. How could I forget that number? And basically just one more, right, than the other side, which is interesting, right? Like not find the real legit votes, find me exactly the amount I need to win, which sort of betrays, you know, his feigning that he really thinks there's fraud in the election. He also pointedly

suggests that Raffensperger may himself be committing crimes if he does not find these 11,780 boats. That's the abuse of his office, right? That's the abuse of his office. So I think the facts are very strong on this count. Yet, you know, one of the defenses, of course, is

If Mr. Trump honestly and truly, despite all of the evidence to the contrary, honestly and truly believed that he had won the election and that there was fraud, can't he try his best to convince the secretary of state to go back and take another look? Now, we've talked on the podcast and many other people have talked about, you know, there are definitely intent as part of

almost every criminal offense, including offenses that have been charged against Mr. Trump. But even if you honestly believe something, that doesn't mean you can go commit crimes to do it. And there's been all kinds of examples like this. You honestly believe that the bank miscalculated the interest on your savings account, all 0.02% or whatever it is. You don't get to go rob the bank because you honestly and truly believe that they miscalculated the interest. So

I mean, that's one of the responses to not just these particular charges related to the Raffensperger count, but to so many other things in the charges. Like, you may have an honest belief that it does not entitle you to solicit somebody to violate their oath of office. Who is telling you, I cannot do that?

or to solicit electors to meet and cast their ballots and then send them up to the vice president, even when there are no longer any outstanding legal battles to be decided about the validity of the election in the particular state.

So I guess my longish answer is I think that's really strong, but I think it is part and parcel of, you know, a bigger offense, a bigger conspiracy. And in both the Georgia indictment and the federal indictment about January 6th, it is one piece. And I do think it would be missing something to sort of isolate that piece. Like had Fannie Willis decided we're just going to charge that in a freestanding indictment and we're going to like quickly go to trial. I think particularly

where you're talking about an indictment of a former president, that might be a shorter trial for sure. But you'd be missing a lot of the big picture, a lot of the story, the context. Jack Smith, of course, indicted only Mr. Trump. Wide-ranging conspiracy, but only Mr. Trump and not all the other co-conspirators the way Fannie Willis did in order, I think, to streamline that trial some, but still tell the whole story. So I, you know...

as a somewhat, well, I'm not a betting person, but Andrew and I have talked about this a lot. I do think. I'm a really bad influence on Mary. I like, I like, I like speculating. I still have too much prosecutor in me to be like, yeah. Um, so I, I do think the case that's the most likely to get to trial and, and get finished before the election is the federal January six related case. I mean, we have that trial date and on March 4th and, uh,

The judge there does have a very rigorous schedule. Now, Mr. Trump has come in and sought to delay that. And, you know, we'll see what the judge does with his request for delay. I don't think he's going to get the delay he wants.

And so I think there's a good chance it'll get through trial, but it could also be delayed. And we've talked about this before. If, in fact, Mr. Trump does what we are almost certain he's going to do, his attorney has been promising it now for a month, but still hasn't filed it, which is that he will file a motion to have the case dismissed on the grounds that he is immune because he was doing things within the outer perimeter of his official acts.

let's assume he loses at the trial court. He will appeal it to the court of appeals. Let's assume he loses there. He will go to the Supreme Court. And you may say, well, wait a minute. Wouldn't he have to wait and do the appeal after his trial? But when you're talking about immunity, that means you are immune from even having to go to trial. And so that is something that I think would be immediately appealable and appealable up to the Supreme Court. And then we'll see whether the Supreme Court would

take that, reject that, or what they would do. But more importantly, how long would that take? Because that's the kind of delay that could push off the March date and could get us dangerously close to the election. Assuming they act expeditiously, which there is precedent for in the Trump v. Thompson litigation over House Select Committee's request for presidential records, that moved very fast. I know about that because my organization was co-counsel in that case, and we briefed over every single holiday at the end of

of 2021. And so for you litigators out there, holidays, forget it. If you're litigating, we had Thanksgiving. Something to look forward to. Christmas, New Year's, yeah. Anyway, so they know how to move fast when they want to move fast. So we will see. It's probably not a coincidence that that motion hasn't been filed yet, right? Right. Why file it early when you're trying to do it? The very last day. This is all about the clock. It is. Trevor, thank you so much for joining us. Thank you for having me. Great.

And we'll see the rest of you on campus. Thanks so much for listening. The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Bye.

Bob Mallory, Paul Mouncey, Fernando Arruda, and Harry Culhane are the audio engineers. Janmaris 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.