Family Fraud on Trial 28:41

Hi, welcome back to another episode of Prosecuting Donald Trump. And it's Tuesday, October 3rd. I'm Andrew Weissman, and I'm here with the wonderful Mary McCord. Hi, Mary. Hi, Andrew. How are you? I'm good. Mary, I know this week we're going to do something a little bit different because we spent a lot of time talking about various aspects of the four criminal indictments against the former president. But I want to talk to you about the four criminal indictments against the former president.

But one of the notable things that's happening right here down the street in New York is his civil case, which is incredibly important. And we're going to spend some time sort of parsing that out so people understand what's going on. But that basically is a case that is likely, based on what the judge has already ruled, to threaten his business empire in New York.

And also very much strike at the identity of who he is based on findings by the court in the different counts that are subject to that civil case. Right. And I think that that may be one reason he has come on so strong. This identity he holds, he holds so dear that almost in a continuation of our topic from last week about political violence, he has continued to

to use rhetoric and propaganda and misleading information, if not outright lies, about New York Attorney General Letitia James, Judge Arthur Engelrand, you know, before, in the mornings, before the start of trial each day, at every opportunity, at every break. And all of this, it's kind of remarkable, he's doing while there is a motion pending in

in the district court in the District of Columbia in one of his criminal cases for him to be making disparaging comments about the party's witnesses, potential jurors. So it's just remarkable. Once again, shows him thinking he's above rule of law, but also scary because there is that, you know, it constantly raises the potential for violence. Yeah. And it raises the issue of, is he right? Is he sort of, at least for the moment,

not being subject to the rule of law because anyone else in the same position. But we'll get into what his new statements are. And finally, we'll talk about some motions that are being made in the Florida criminal case and in the D.C. criminal case. The D.C. one is the one where the judge has this pending motion with respect to his bail conditions.

But we'll get into those motions that basically are Donald Trump trying to get more time ultimately to put off the trial dates. And we'll talk about the merits or benefits

newsflash, lack of merit of those motions. So that'll be the sort of the third topic. But why don't we go local and talk a little bit about the civil case that is pending? And I think maybe it makes sense to do a level set. Yeah, or table setting, whatever you want to call it, because I do think there's a lot of confusion about what Judge N'Goran did last week,

That led to then the start of trial yesterday. I think it'd be a good. And what's at issue now? Because what he did last week was very significant. Absolutely. Some people are probably thinking, wait a second, wasn't there a trial already of the Trump organizations? And the answer to that is yes. Last fall, there was a criminal trial.

that was brought against two Trump organizations and against Allen Weisselberg. Allen Weisselberg pled guilty criminally, and the Trump organizations went to trial and were found guilty by a jury, that means beyond a reasonable doubt, in connection with a tax scheme.

where they for years had been essentially paying people off the books and cheating the tax authorities out of various sums of money. And that has happened and is done. Also, though, that was brought by the Manhattan District Attorney's Office. That's where Alvin Bragg is. And Alvin Bragg has a separate criminal case, the hush money case against Donald Trump.

There is now this civil case that has been pending for quite some time, which is a larger financial fraud case. And it's, as I said, it's civil. It has to do with the overvaluation of various properties in all sorts of ways, whether it's golf courses, Mar-a-Lago, Trump's own condominium in New York at Trump Tower. And as a way to defraud

both insurance companies and banks with respect to the amount of money that Donald Trump was getting from banks and the rate at which he was loaned that money. I think one of the things that Trump continues to say publicly and that his attorneys at least

Ms. Haba was saying in court yesterday is that the banks didn't lose money on me. They made money. Yeah. No harm, no foul. Right. And part of, I think, what could be confusing to listeners and people who are following this is, you know, this is not necessarily about did the banks end up in the hole without getting repaid on loans on things like that, although I think there's some disputes about whether they've always been repaid. But this is about did he get favorable returns

rates? Did he get favorable treatment based on his overvaluation of his real estate assets? And so even though maybe they didn't lose money, maybe he got a benefit, a real financial benefit from his fraud. And I think that also leads into so much confusion about whether this is a case about classic damages, right? And we think of damages as money that it takes to compensate a victim of fraud. That's really not so much what

this is about now. This is about disgorgement, which as Judge Angoron said in his ruling last week, disgorgement is available as an equitable remedy, notwithstanding the absence of loss to individuals or in this case to banks or insurance companies or financial institutions. It's more the nature of a penalty to disgorge the benefit that the defendant received, Trump and his companies, as opposed to compensate the

losses suffered by victims, banks, insurance companies. Does that seem fair? Yep, absolutely. That's a really good segue to what is exactly at issue now, given the judge's ruling last week. There are seven causes of action that were all about different

manner and means of fraud brought by Letitia James in a very lengthy civil complaint. As I said, there's seven causes of action.

The judge last week ruled on the first cause of action under what's in New York known as the Martin Act. That's a very common charge brought both civilly and criminally here in New York. And so what the judge did is he said with respect to that first cause of action that there was no real...

factual issue, he looked at the proof and said, you know, on the one hand, I have objective, independent evaluations and proof. And on the other hand, I have fantasy and subjective statements with no proof attached to it. And so he said under that particular statute, the Martin Act, that

Letitia James was entitled to summary judgment. That is that you could rule without having a trial on that matter. But he said that was not true with respect to the other six. And there are two particular things that he noted that were different about the first cause of action than the other six. And I think it's important because

It's really easy to say, you know, Trump is a louse and he must have committed fraud. And that's where everyone sort of thinks the proof is. But that still could be something where you go, yeah, but that has to be established as a trial. That's right.

And with respect to the first count, the judge said that particular charge doesn't require two things. One, it doesn't require that there be an intent to defraud. The judge didn't have to decide whether that was one of the elements. Second, he said that it's not required that the bank or the insurance company relied on the false statements, meaning that

even though there are these false financials that the court found existed,

For the other six counts, you have to find that Trump intended them to be false, intended to defraud, and that the bank or the financial institution or the insurance company actually relied on it in some way. It was material. Yeah, that they didn't just say, you know what? I don't care about what's on that piece of paper because I'm going to do my own due diligence. So he said...

With respect to those remaining six counts, that's what he's going to hear and that's what he started hearing yesterday was the scope of the fraud, et cetera. Now, big picture, Mary, I think in some ways, yes, those six counts, it'll be interesting to see what happens.

But the remedy that he is looking at, it already exists with respect to the first count. So if you're a liturgist, James, this trial is kind of icing because she won already on the first count, subject to appeal, obviously. But the judge already found that she established the first count. And that is why you're hearing about

all of these things that Donald Trump did, that there can be essentially a pulling of his license to operate in New York. Right. And, you know, even for that count one, a lot of people might think, still, wouldn't that have to be proved at trial? Because he's arguing against some of the findings of Judge N. Goran. But Judge N. Goran said, look,

For this first count, this is really a documents case. I have documents establishing what the value is, and then I have the documents that show what you said the value is. And so, you know, that's where he gets into this fantasy. Your idea, Mr. Trump and Mr. Trump's lawyers, is that the valuation that you—

purported to supply to banks and insurance companies, et cetera, it's fantasy. You made that up because the actual documents that show value show something very, very different. And we're talking about differences between $800 million and over $2 billion in differences. We're not talking about small differences. Exactly. And the judge said, look, if these were small, reasonable minds could differ, they're

That's not going to be a fraud case. That's where there could be differences in valuation. Let me just give you two quick examples. One that's gotten a lot of attention because I think it's just so concrete is the square footage of his own residence in the Trump Tower, where it was claimed to be 30,000 or so square feet when it's actually just shy of 11,000 square feet. So a third square.

of what he claimed. Still a very big apartment, let's just be clear. Yes, very, very big, but he also was valuing it at, I think, like three times the amount that any apartment in New York had ever sold for that was even bigger and nicer. Although I'm sure Donald Trump would say, no, no, no, there's no apartment that's even bigger or nicer. But in any event, there was something just very concrete about that

statement. And also notably, in court, his counsel actually had no argument. Had to back off. Basically said, you got us. We screwed up. That's just wrong. The same thing with Mar-a-Lago. The valuation was done and says it was done based on

any use that could be made of Mar-a-Lago, like breaking it up into subdivisions and not complying with all sorts of restrictions based on things that may or may not change in the future, depending on whether they could get out of restrictions. But that's not what the lease is, and that's not what the valuation actually said it was, which was it said this is what its current value is based on current rules. Right.

And like you said, restrictions on the use of the property. So you can't just then value it based on things that you're restricted from doing. Right.

Or as anybody who's listening who is a New Yorker knows, he took property that is rent-controlled and said, oh, this is what it's worth if it weren't rent-controlled. Well, I mean... But it is rent-controlled. Exactly. I mean, that's like, you know what? The moon were made of Swiss cheese. That's where you've got the judge saying, you have hard evidence and you have fantasy. And it goes back to what Amy Berman Jackson said, and

It feels like a million years ago in the Mueller investigation, which he turned to Paul Manafort's counsel and said, you know what? This is a place, this court of law is a place where facts and law still matter. And so that's what you were getting last week with Judge Inquorn. And this week,

What we're seeing play out is the rule of law in that, you know what, Letitia James has to prove her case. And if she doesn't prove her case, then she's not going to win on counts two through seven. And that's the way it should be. And so witnesses will come in and Donald Trump and his team will be able to cross-examine them. They will be able to put on their own evidence because it's a civil case.

Either side can call Donald Trump. So he could be called by Letitia James and he would need to testify or he could take the Fifth Amendment. If he does that in a civil case, though, it can be used by the court.

And Andrew, I did just see just minutes before we started recording that apparently Donald Trump has said today that he plans to testify. He absolutely will testify and looks forward to testifying. So we'll see. I've heard that before because I remember I was on the Mueller team where he was like, I'm happy to cooperate. Yes.

until it comes to it. Yeah, how'd that go? Yeah, I'm happy to cooperate until I'm not. Right. But by the way, one thing that I think people might be curious about is why this is being tried to the judge and there's no jury here. This is what's known in the law as a bench trial. That's what it just means when you have a judge decide the case and not a jury. And there's sort of two reasons here why it's being tried to the judge. One is that

Donald Trump's legal team didn't ask for a jury. Like, they didn't say that they were entitled to one and wanted one. That's sort of one reason. The other is that this is like super arcane, but if you're seeking only something in equity, the rule is that you're not entitled to a jury.

And the judge here actually made note of both of those things yesterday as to why it was a bench trial, because he wanted to explain to the public why he's sitting there. And also in contrast to what Donald Trump said yesterday about how it seems so unfair that he isn't being tried by a jury. By the way, if there was a jury, he'd be denigrating them, too. True.

Because in the same way he did for Eugene Carroll's jury as well. But that's the reason why it's being tried to the judge. And obviously, the judge has already indicated with respect to one count what he thinks. But this is a judge. He's going to follow the rule of law, presumably. And so we'll see how he comes out once all the proof comes in. But this will be a fascinating case. Obviously, it'll be super fascinating if Donald Trump testifies. And big if there. Yes, absolutely. Absolutely.

More prosecuting Donald Trump, family fraud on trial in just a moment.

MSNBC's Lawrence O'Donnell. I grew up in the front row of the spectator section in courtrooms. My father was a Boston cop who became a lawyer, and he had me in the courtrooms all the time. And I was learning literally the rules of evidence when I was in high school. My first book was about a case that went on for seven years. And so everything that happens in courtrooms makes perfect sense to me, and my job is to try to make it make sense to an audience. The Last Word with Lawrence O'Donnell.

Weeknights at 10 p.m. Eastern on MSNBC. One thing we know that Donald Trump is still doing is he's still talking a lot, whether he actually ever testifies officially in court or not. It's every time he...

goes to court, which is somewhat surprising in and of itself. It's worth a pause there for a moment. He did not have to show up. This is a civil case. He does not have to be there. And he came and he spent all day there yesterday. And he spent at least this morning on Tuesday there. And I think part of that comes to what the heck is he doing? What is he using this trial for? And we've certainly seen that each opportunity as he comes to court, he's using to make statements outside

the courtroom to reporters and others who are gathered there. He's on every break making those kind of statements. Every morning, like before the trial started, he put out a very political statement, essentially saying that this entire trial was political persecution, denigrating the judge, denigrating Letitia James, saying that it was a fraud, fraudulent

Frankly, reaching out fairly explicitly for support. And I don't mean just like thoughts and prayers. I mean, financial support to his campaign. And he's using this, I think, to campaign on. And in doing it, he's also doing exactly what we talked about last week. He is

saying things about people that are so disparaging and untrue, but that are likely to get people injured. So that's, of course, the perfect segue to essentially the political violence that we talked about last week. I do think that a lot of what he's doing, because this so goes to

findings that could come from the judge more from this trial and from the evidence that go to the heart of sort of who he portrays himself to be. And so I think this is a lot of counter-programming by Donald Trump so that he is the story and not the evidence that is coming out. So I think that's one. He's a master at publicity. And so I think that's part of what he's doing by being here is to try and pull evidence

the attention away from the actual evidence. But the other, and the one that I'd be fascinated to know, Mary, what you think about what Judge Chutkan and what, frankly, the other three judges overseeing these cases should do, because I, again, had this horrible pit in my stomach when he said, the attorney general in New York needs to be stopped. That's the quote, needs to be stopped. That's not subtle.

That's the kind of language that causes people to be harmed. We already had Fannie Willis talk about the threats that she is getting, about violence, about the racist threats against her. I think when you have these threats to...

Yeah. I think that's right. And, you know, the government, since we spoke last week, the government filed its reply brief. Last week, we spoke about Trump's opposition. Now we're switching gears here to the District of Columbia criminal case involving January 6th and the fraud related to Trump.

the efforts to overrule the results of the election. Last week, we talked about Trump's opposition to the government's motion for a limited ruling restricting his ability to disparage and basically intimidate parties and witnesses and jurors and to really affect the administration of justice by tainting the jury poll.

And the government filed its reply. I think it was on Friday night and the judge right away then set a hearing. And as you said, actually two weeks from now, October 16th, which is kind of a long time. It may just be the judge's calendar is really booked up. I think she may be in some other criminal trials, actually, you know, for those who think that,

She had all of her cases taken away when she got this case. That is not true. She has a full docket of other cases, including cases that she has to preside over trials. But the government came in and really did respond to all of the arguments that Mr. Trump made and said, we have showed the causation between the things that he says and real world harm. In fact, we showed that in our indictment with respect to January 6th.

And they criticize Mr. Trump for proposing sort of like the wrong legal analysis. And then they add a whole bunch of new statements that Trump has made, a lot of which we talked about last week, including the statements about Mark Milley deserving to be executed for treason and also about this weird president.

purchase, non-purchase of a Glock at a gun store in South Carolina. These are all things that the government under Jack Smith raises with respect to whether there should be an order limiting what Mr. Trump can say about people, the prosecutors, witnesses, jurors, the judge.

And I think that you're right, that it really is just gotten way out of hand. I'm looking at the remarks that Trump prepared for yesterday morning before his trials start. And, you know, he talks about the founding fathers would be rolling in their graves if they could see what

in his view, his political opponents are doing. So he has cast every case brought by different prosecutors with the exception of the two federal cases, which are both brought by the U.S. Department of Justice under Jack Smith.

We have then two separate state prosecutors, Alvin Bragg in Manhattan, Bonnie Willis in Georgia, who've brought independent cases. We have the Attorney General Letitia James in New York having brought this civil case and also the previous criminal case against Trump. He lumps these all together as being essentially part of one big plot plan conspiracy against him. And in fact, yesterday, he suggested that the New York case

civil case had been directed by the U.S. Department of Justice. So in doing this, it's just constantly fomenting

Trying to agitate people to take some sort of action to save him, the victim of a political prosecution. And, you know, I mentioned in the opening, he's actually not monetizing it. The last paragraph of his remarks prepared by President, he's not the president, Donald J. Trump, before his trial started was, please make a contribution of any amount, even one dollar, to show how much support we had from the American people as the left forces.

forced me to stand trial as an innocent man. That's what he's doing with these cases. And as you said, it's suddenly, we're supposed to believe that all of these people are just part of some witch hunt. And I guess it includes E. Jean Carroll and everyone who's ever stood up to him is suddenly subject to epithets and adjectives and adverbs with an absence of proof. Yep.

So obviously, we're going to cover and stay very keenly focused on what happens in the D.C. case where it's going to be dealing with his bail restrictions. But I think that is just such an important motion, probably, I think, the most important in terms of dealing with the prospect of imminent violence. But turning to D.C. And speaking of motions...

Yes, exactly. Speaking of motions, there are a couple different motions, actually three, but they all sort of relate to each other in that Donald Trump has asked for different types of relief, but essentially putting off Trump.

Yep.

the trial dates. Remember, these are trial dates that Donald Trump opposed. He essentially was, people will, of course, will remember, he was like, you know, I've got a trial date, 2026. Or that would be, how about like a minute before never? So this is obviously something the defense lawyers do a lot, which is, you know, trying to delay things. That's not unusual. And the government,

They're doing their job, which is to make sure that there's a public and speedy trial. And the court has an obligation to the public that there be a speedy trial within the rights of the defendant to due process. I found one thing a little bit beyond the pale, Mary, which was in the D.C. case.

One of the grounds was the defense saying, although one of my lawyers has clearance and can see things, not all of them have clearance. And so I'd like to put things off until all of my lawyers have clearance. And by the way, something I'm not telling you, but the government pointed out, not all of those lawyers have even finished their paperwork yet.

seeking clearance. So meaning, I'd like you to put it off until all of my lawyers have clearance. And by the way, they're never going to apply for clearance. They've been foot-dragging. Talk about chutzpah. And that motion that you're referring to relates to them seeking to put off some of the SEPA proceedings, the Classified Informations Procedures Act proceedings. And they filed a similar motion in Florida in the Mar-a-Lago case. Now, it's a

Particularly interesting in the D.C. case because the SEPA aspect is so such a tiny little minimal thing. And that's one of the things the government says, look, SEPA here, there's such a small number of documents. You've got cleared counsel. Let's get moving on it. The other motion in D.C. was just, you know what, that date you set for filing motions, October 9th, we've got a lot of them and it's really hard and we have to do a lot of legal research and we need 60 more days to do it. And

And among the motions that they need 60 more days to file are things that they told the court at the very, very first status conference. We're going to be filing these things in some cases within a week or two. And that was in particular the executive immunity motion. Mary, you kept on saying that. You kept on saying, oh, let's cover this. Let's cover this because it's coming. It's coming imminently. And it still has not come. Apparently, they meant imminently in a way that Fannie Willis had used the term imminently. Months and months away. Exactly.

They're just using that for more delay. But I think those are likely to be denied, certainly in D.C. And in Florida, you know, we'll wait and see. Obviously, the judge there is very different. We'll see if she gives time and how much time she gives, if any. But I don't think in D.C. that the motion struck me as pretty close to frivolous, if not. I mean,

There may be individual – Actually frivolous. There may be, as the government says, there may be individual things, disputes you have to seek a few days extra time on. Fine. But like right now what they say, look, if you blanketly put off all motion – pretrial motions for two months, then they won't even be ripe for the court to decide until we're well into January. There's no way the trial can start on March 4th. And that's exactly what they're trying to do is make the trial not start on March 4th.

Yeah. So, Mary, really nice to talk to you. Same. But it's going to be even nicer to see you tomorrow at NYU, where I look forward to hosting you at NYU Law. Absolutely. Looking forward to it. And we'll talk about this idea of executive immunity, although unfortunately, we still are not going to have a motion in front of us. Yes, true. Okay. See you tomorrow. Okay. Bye. 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 later this week with much more. The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes.

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