Political Violence 35:02

Hello and welcome to another episode of Prosecuting Donald Trump. It's Tuesday, September 26, and I'm Andrew Weissman. I like that it's, if it's today, it's me. And I'm here, I'm here virtually with my fabulous...

co-host Mary McCord. And if it's Tuesday, I'm happy to be Mary McCord, too. Tomorrow, I definitely want to be somebody else. You know, it's actually, it's really great that I actually started that way because I was in D.C. last night with Jen Psaki doing her first sort of official Monday show, but I teach on Tuesday mornings, so...

I took the train back and I didn't get back until 2.30 in the morning. So it's actually good to be reminded exactly who I am on this Tuesday because I'm not really sure I will remember. So here's the big picture example.

We discovered something at the Texas Tribune Festival. Mary and I were hosted by Chris Hayes. It was great. It's a bonus episode for you all to listen to if you haven't already. And it was sort of a big picture, wonderful discussion that's different than what we normally do. But Mary and I finally did.

finally have discovered a major difference between the two of us that we actually have gone to the mat on, which is we were in Texas

I like... I don't know. Maybe I shouldn't admit this. I am a fan of country music. Yeah, we were in a restaurant and a country music song started playing. I said, oh my gosh, I can't stand country music. And Andrew's like, I love country music. So there you go. It has nothing to do with law. Claimed it was more lyrical. I don't know. You know what they say about country music? Not my cup of tea. Country music is...

the last refuge of the lyric. Like, lyrics still matter in country music. Anyway, I've never... I can tell. This is one where, by the way, not only am I not going to convince you, but, you know, we get lots of comments and questions from audience members, and we're going to definitely be doing better, I hope, in dealing with those. But now I'm sure this is going to lead to a huge contretemps on country music. Oh, we're going to have a lot. Pros and cons discussed. But...

It's really nice to start actually with that light intro because the topic for today in its many manifestations is heavy. And it's,

political violence. And it's political violence specifically in the context of the Trump prosecutions, the four of them. And as you know, since I keep on saying this is Mary McCord's day job, is so much trying to play her role just as she did in the government in dealing with violence. She and her organization at ICAP is...

so admirable and the group is so admirable at trying to deal with these issues and speak about them and bring lawsuits with respect to groups that are participating. But we're going to take a sort of first and narrow look at political violence in terms of the issues before specifically the D.C. court, which has a pending motion, as we've talked about, to restrict the

what Donald Trump can say and do. And the filing was made last night by Trump's team, and we're going to talk about that. Right. You know, this was the opposition to the government's motion filed last night. And let's just say it came in hot. The introduction really, really just tries to paint Jack Smith's indictment as a

itself being done purely for political purposes and prejudicing the jury and the administration of justice. So they're trying to turn the tables and we can get into that. But we'll also talk about the interesting context of having this motion being briefed and pending right now while Trump himself is

is posting new social media posts, arguably threatening people like General Mark Milley, who's retiring at the end of the month, and this sort of bizarre episode of him visiting a gun shop and

purporting maybe to purchase a gun, but then his PR person saying, no, he definitely did not purchase a gun, which is all behavior you would not expect him to be engaging in while he's pending federal and state felony charges. So yeah, let's just jump into all this stuff. We'll talk a little bit how the broader picture fits in that the threats that people across the country have been experiencing for years now, many of them based on

So let me set the stage to remind people about the nature of the government's request to the D.C. judge. And then, Mary, I'd love your take on the opposition by Donald Trump that was filed late last night. So the government filed a motion before the D.C. judge, Judge Chutkan, saying that it's important to...

protect the jury pool and analogized this to the restrictions on lawyers under the local rule in terms of not speaking about the case, not talking about the evidence, about the participants, witnesses,

the other side, the judge, and gave lots of different examples. They didn't give the gun example. They didn't give the Mark Milley example. They didn't give some of the more recent examples with respect to the judge herself, just because those hadn't yet happened, which itself is remarkable because

That's right.

the request was basically, "Judge, there should be restrictions on what he can say and can do, and he shouldn't be giving names and identifying information about witnesses and essentially statements that could prejudice the jury." It did talk about violence, but it didn't do it in the context of saying that he has committed a crime while out on bail, as opposed to this

effect on the jury pool. That was sort of the framing of the issue. But running through the background was the issue of potential violence with respect to various participants.

So, Mary, what did you think of the brief that came in and your sort of take on both the brief and the posture of the case? I should note that the government will have an opportunity to submit a reply brief by September 30th, and then we'll see whether the court has a hearing on this or whether she just issues her ruling. I would expect it would be relatively soon. But let me turn it over to you, Mary. Thank you.

So I think you're right, Andrew, that a big part of the government's motion is about the law around allowing for courts to take control and issue orders that are appropriate in order to ensure that there's not...

prejudice to the administration of justice and that a jury pool is not prejudice. But the government also importantly pointed out that here they're also worried about threats to witnesses and witnesses being intimidated. And that's a little bit different from the normal situation where we see motions for restrictions on extrajudicial statements based on concerns about fairness to the defendant's rights to a fair trial. And I think that's important because

Because Mr. Trump's opposition comes in very hot, like I said up at the top, really trying to turn the tables on that, really trying to turn the tables and say it's Jack Smith through Jack Smith's 45-page speaking indictment that reads like a campaign press release who has delivered an incendiary attack on the president.

upon President Trump, and I'm selectively quoting from his introduction here, and that it's this inflammatory rhetoric which violates longstanding rules of prosecutorial ethics, which is now something that Jack Smith, according to Mr. Trump's attorneys, is trying to use to take this extraordinary step of stripping Mr. Trump from engaging in his First Amendment rights. And the opposition says that the court should reject this transparent rhetoric

gamesmanship and deny the motion entirely. So I do think after you get past the introduction of the opposition, his attorneys make some decent points, but I think in some ways they're talking past each other. Some of the points about the order that's requested,

is not narrowly tailored enough because it doesn't give Mr. Trump enough notice about exactly what will be prohibited. And so here he is in the middle of a campaign. He's got some of the people who might be potential witnesses who the government claims might be feeling intimidated or threatened are people who are actually

campaigning against him, such as the former Vice President Mike Pence. Others are out there, he says, writing books of their own. And they're not only not likely to be intimidated, but how could Mr. Trump possibly be able to respond to all the things that they're out there saying through their own campaigns and their own books?

if he's subject to this order that he thinks is too vague. He also tries to claim that it's not him that's threatening people and he shouldn't be responsible for third parties who might actually engage in acts of violence. And so he makes legal points that on their

I'd say have some validity, but they just have never been applied to a situation like this. Right. Most defendants are not Donald Trump. They don't have that bully pulpit. They don't have the ability with their words to actually cause action. And I think this opposition tries to say he's not responsible for anything.

of that. He's just exercising the rights of any defendant to try to defend themselves. And he's also a candidate and he has a right to speak. And all of this is an infringement of his First Amendment rights. But the reason it rings so hollow to me is it ignores reality. It ignores that for years now, when Mr. Trump says something through social media or at his rallies that deprecates another person, names another person, those people then get threatened

They get threatened with violence. Their families get threatened for violence. Yes. Mary, this is you saying to me and to our listeners over and over again, call and response, call and response. I mean, I've heard you say that over and over again, and I couldn't agree with you more that I thought the most dangerous part of this brief was saying, I am entitled to

That is his defense to the January 6th event.

That's right. This is just a repeat over and over again of ignoring something that is at this point, even if you could find a moment in time where it was true, you know that's going to happen. You know then that this is something that will happen in response to what you're saying. And we'll turn a moment to the Mark Milley social post. To me, that was the most flagrantly true.

problematic of things that he said. I, by the way, had the same reaction, which is this was so much like what we saw in the Mueller investigation, which was there were some legally valid points about reminding the judge about the legal standard, about the case law, about being careful to restrict people

First Amendment activities, even though this isn't a pure First Amendment case because he's out on bail on four separate criminal cases. So it's just about bail restrictions in the same way that lawyers have restrictions on what they can say. But, you know, mixed in with that was

not just a healthy dose, but I would say an inappropriate measure of political speech and venom that obviously was not addressed to the court, that was addressed to very different people. I know, Mary, you had a comment about that because you noticed something I thought very interesting about the government's motion and Donald Trump's position with respect to it. Yeah, it appears, now I don't have 100% verification of this, but

The listeners may recall a few weeks ago, the government sought to file a motion under seal, meaning not public. They weren't hiding it from the defense. They were sharing it with the defense, but they wanted to file it in front of the judge and have the defense see it and be able to argue it that way. And the defense opposed the government having filed it under seal and actually asked the judge who had granted that motion, asked the judge to undo, vacate its order granting that motion and give them a chance to appeal.

oppose it. It appears that that was likely this very motion, the government's motion for restrictions. And, you know, that motion now, which when it was finally made public, has redactions in it. And I think the reason the government had originally sought to file it under seal is because it did have so many examples that named names of actual people who have been the victim of Mr. Trump's vitriol and attacks and who, because of him,

lying about those people and spreading, you know, really dangerous information about those people. Think of people like Ruby Freeman and Shea Moss, right? And his own head of cybersecurity and infrastructure who said that the election hadn't been stolen and it was very secure. And, you know, then he got threatened and he got attacked. It named names of multiple people which are still redacted. And so it seems to me like part of the reason that

the Trump attorneys opposed that motion being filed under seal is they wanted to have this argument in the public. They wanted to be able to, like you say, write their opposition as, in many ways, a statement to the people, a political statement, not just a legal opposition filed in court. You would not need the kind of

introduction that I was referring to with those really just political statements, if you're just trying to make an argument based on the law and the facts. So it's interesting to me. I actually do think that this is a debate that probably should be public. And I don't necessarily think that the government intended for the entire time for their motion to be under seal, but because it did have

I think they were just exercising caution and thought, let's go in front of the court, let's get this hashed out, and then we can unseal things and just redact as necessary. Because I do think it's important that the public sees it.

sees and hears what is going on right now in this particular motion and how it's being briefed. But it's interesting to me just the strategy here of the Trump attorneys. We want everyone to see, essentially, to see a repeat of all the threats. Yeah. So one, I think that is a brilliant point, and I hadn't thought about it. And I think that is very much what's going on. Obviously, as you said, we don't know for sure, but I think that is a really good

Let me just say, procedurally, I could imagine the government doing what we did in the Mueller investigation, which is a lot of times we would file a brief under seal. And we would also, after speaking to the defense, file a proposed under seal.

unredacted version, but with certain pieces blocked out. And if there was a disagreement between the sides, we would flag that for the judge. So that would be sort of a standard way to proceed where you have this concern about

personal identifying information about witnesses. We've seen already that all of the judges in both criminal and civil cases, and even in the Colorado 14th Amendment case, are taking those precautions, not just because of Donald Trump, but because of third parties who may feel like they want to take the law into their own hands. This is probably a really good segue to the Mark Milley social media post. And

It falls so much into the category of this sort of plausible deniability statements by Donald Trump, which at this point, I actually, as I've said, I don't think it's plausible deniability. I think it's implausible deniability, where I think that Donald Trump has learned not to say, you know,

I'm directing violence at somebody, but to do it in a way where he knows it's going to get picked up in the same way that we've seen repeatedly. Because anyone who didn't want violence wouldn't be saying any of this and would be saying, "Don't commit violence." I mean, just all you have to really think about is what any other person would do if they didn't want it. And with Mark Milley, who is a war hero and in many ways

is, I think, a sort of unsung hero in terms of keeping the military on the straight and narrow in connection with what was happening on January 6th, where I think one of the big untold stories is the effort to, as anybody who's authoritarian wants to have the military on their side, and I think that Mark Milley and the Department of Defense really, because they have so much rule of law

instilled in them, including that you don't just blindly follow orders if you think they're unconstitutional. And so Mark Milley, of all people who has really put his life on the line in terms of his military service for this country, the idea that you would say something to the effect of, you know, in prior times, people would get the death penalty for what he did is

To me, it's hard to describe that as anything but intentionally provocative if you add to the fact that what he supposedly intentionally did was wrong in the sense that what Donald Trump was saying he did is incorrect.

which was that he somehow was just giving secrets to the Chinese. And Defense Secretary Esper has been on air now saying that he actually had told him to do this. There was nothing unauthorized about this, that it's just totally wrong. And so if something were to happen now to Mark Milley, that's sort of the thought experiment is it's

that at some point, as sure as we are sitting here, something's going to happen. We saw it with respect to Nancy Pelosi's husband. We've seen it with respect to the threats of so many people, that the prosecutors on the case are under protection. Something's going to happen.

Just to make sure everyone's tracking on what you're referring to with respect to China, you know, Trump's true social post makes a suggestion that he was having improper contacts with China. And this related to some assurances that Mark Milley was making to other governments that, you know,

It's OK. Things are under control here. Don't be too concerned. These are things that, like you were saying, Secretary Esper directed him to do. And that's what Trump was referring to when he said this was an act so egregious that in times gone by, the penalty would have been death. And like you said, these are so typical of Mr. Trump.

Right. Say something super inflammatory, super disparaging about a named person. And then the next thing you know, there is a threat on that person and an attempted act of violence on that person. I mean, we can just talk about Judge Chuck Kent. Right.

Mr. Trump came out with several social media posts calling her a Trump-hating judge. He could never get a fair trial there, etc. And what do you know? A woman makes some phone calls with very, very explicit threats to kill Judge Chutkan. She's then, of course, arrested and facing charges now. So how can there not be?

be a cause and effect there, a call and response. But yet in the opposition to the government's motion for this limited restrictive order, Mr. Trump's attorneys actually say the prosecution offers no evidence of any causal connection between his speeched

and the alleged unlawful acts of others to support their meritless claims. And we can just give example after example after example, as did the government in its initial motion, as the government no doubt will in its reply. Example after example of Trump says something, some other person does something. And like you said earlier, that is in fact what January 6th was. He said a whole bunch of somethings, like the election was rigged,

And be there, be wild, and got out there on the morning of January 6th and said, we fight like hell, and people did it. And look, your only argument for it not being intentional is that you are unaware of the actual violent response and the threats, and that's preposterous. I mean, this is somebody who lives and dies by the media. More prosecuting Donald Trump. Political violence 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.

The sort of other piece to this, in addition to the threats, is something that you really can't make up. It's so preposterous. But yesterday, Donald Trump visited South Carolina to a gun store. It's a gun store that actually had sold a gun that was used in a horrendous crime of violence. Political violence, hate crimes, white supremacist hate crimes in Jacksonville, Florida. Not just a generic crime, not that any crimes of violence are generic, but I think it's

Absolutely. To me, it reminded me of Donald Trump embracing the January 6th defendants. I mean, this idea that it's like, I'm not cowed in any way. I'm actually running to the hatred.

I'm embracing it. So this is of all places at the store that was chosen. And there's pictures and some video. And his press officer says that he purchased a gun. It was then pointed out that it is illegal for a store to sell a gun to somebody who was under felony indictment.

And under 18 U.S.C. 922N, it is illegal for somebody who is under indictment for a felony to receive, that's the word, to receive...

a gun that has traveled in interstate or foreign commerce. Don't worry about the interstate or foreign commerce because it's a Glock. They're made either overseas or in Georgia. So at some point, it had traveled in interstate or foreign commerce because this is happening in South Carolina where the Glock is. That's just a jurisdictional thing for federal jurisdiction. The fact that he's under indictment for a felony is something that obviously he knows. So that element of

is satisfied. And the third element is that he's receiving it.

Now, I am not saying that he should be prosecuted for this. I actually thought just not to bring up Hunter Biden. But when you look at these sort of gun violations, they're ones that are routinely prosecuted and they're ones that are not. This is one which would not be. I'm not saying it should or should not be, but there should be comparability. But here, the remarkable thing is that this is happening while he is out on bail on four criminal cases that

And while there is a motion pending to have his bail conditions rethought by one of the judges, and it is, I'm not going to just say technical, it is a violation of law. I'm not saying, by the way, that the remedy for this one is that he goes to jail. I think that's the issue of what's the reaction to it is one for the court.

But the idea that it just displays such contempt for the law and a cavalier approach to whether something is or is not with the idea that I am...

I am above the law. I do not think about whether something is or is not legal. Essentially, there are no ties or holds on my behavior. The civil law hasn't bound me, the criminal law shouldn't bind me, and Congress hasn't bound me. It just connotes a...

contempt that is not what happens to somebody who is out on bail on one criminal case, let alone four criminal cases. I mean, right now, of course, if he didn't buy it, then he didn't receive it. And it's not actually a violation of law, although technically I wonder about even just holding it and posing with it is actually you think you think that's enough holding it and posing with it?

I think that buy is not a prerequisite to receiving. It's not the word in the statute, that's for sure. I think that receive, it's obviously different than possession, which has been used in the statute, and buying has been used. I don't think that's a prerequisite. But you know what? Again, I'm not saying that there should be a criminal case about the receipt of the gun. I'm saying that it is relevant as a factor for...

a court considering his bail conditions, especially because this whole idea that he did it and then he didn't do it. I mean, come on. His press officer was touting the fact that he did it because he wants to be like, I'm Mr. Second Amendment rights. I mean, that's the whole idea. This reminds me of our discussion with Chris Hayes, because part of that is when you're somebody like Donald Trump, you just have the position. And sometimes other wealthy people take this, but he's in a whole different category, not just wealth, but

power, has this following, has this, to go back to my term, bully pulpit. He has never thought the rule of law applied to him. He's just thought he's outside of it completely. And I think this is more of it. I also want to make sure folks understand that when you're talking about him being out on bail, that's because this motion for restrictions on

his speech, what he can say about witnesses and disparaging comments and intimidating comments, the motion that the government is seeking here is because in the context of a pretrial proceeding where someone is at liberty who is facing trial for felony criminal violations, this would essentially be another condition of his release, right? That you cannot make these statements. If the judge does in fact issue an order, that becomes a condition of his release,

that if he violates, he could potentially forfeit release or face other additional restrictions, which actually reminds me to one other thing I do want to say about this motion before we move on to some of the bigger picture threats we've alluded to. One of the arguments his attorneys make is that

To restrict First Amendment rights, you have to, as I said before, narrowly tailor any restriction and make sure that they're justified by compelling government interests. I think the government here has compelling interests. But one of the arguments that his attorneys make is you have to consider whether any alternatives would be sufficient to address the government's interests. And here, these alternatives just play right into the things that Trump has wanted all along. They include things like

A change of trial venue to a place less exposed to intense publicity. Well, where would that be? Patagonia? Like, where would that be in the United States of America? And I love this one. Postponement of the trial to allow public attention to subside. Oh, till maybe like April 2026? Is that when?

By the way, Mary, I love that, which is because I'm fomenting so much negative publicity and so many issues, the remedy for my conduct is to put the trial off. That's right. I mean, you could be sure the government's going to be raising that. Exactly. That is like running, leaping, jumping chutzpah. There's no question. I mean, I understand that there's a second audience that they were addressing this to, but it just was not addressed to the court from just a legal perspective.

That's not how you write a brief to advocate to a judge. There were some perfectly fine legal points to raise, as you noted, and it could have been done in a much more high-toned way. It does not suggest that

counsel is able to exert any control to extend their doing that. I mean, we have no idea what's going on between the counsel and the client, but clearly something like this is, let's just say, Mary, there's a reason that you and I have not been in that position. I just don't know that I, I shouldn't say I don't know.

I know that I just couldn't sign something like that. No, same here. And, you know, there's no recognition anywhere. And I think this kind of transitions to our little bit broader point. There's no recognition anywhere in this opposition, 25 pages worth, that even acknowledges the people who have been so harmed by Mr. Trump's conduct. The New York Times reported in the last couple of days that Jack Smith's

office is going to be spending something like $8 to $10 million for security for him, his family, his top staff, and their families. Reports of threats are up 300% against FBI. They have a whole new unit addressing these threats that they have never had to have before. I mean, yes, they get threats sometimes, but not in these numbers. Their people now need security. The judge needs security 24-7. The other judges and prosecutors in the other cases are

need security and they are the lucky ones who get security. I'm out here in New Mexico right now while we're recording because ICAP, back to my day job, we are holding a series. We've done two of these in the past. We've got two more scheduled of

political violence regional convenings. So we've got local, state, federal officials and community organizers and members coming here for two days to talk about the threats to our democracy and the political violence. We have people coming tomorrow and the next day, and these are

closed to the press. So sorry, press, you don't get to come listen in. This is like a safe space for people to talk about what they've been experiencing and what are the legal options and the policy options and the public education options to respond. But we have people coming, Republicans as well as Democrats who've been so threatened, election officials and election workers, secretaries of states,

people who serve in all kinds of elected positions and unelected positions, people who advocate for LGBTQ rights. Just yesterday, a bomb threat at a bookstore in Salt Lake City, Utah, before a drag show was another type of political violence. Now, I'm not going to tie that one directly to Mr. Trump, but a lot of the people who are out there constantly sort of acting on the things that Mr. Trump says are the same people who have been responsible for things like

heightened anti-Semitism and anti-Semitic violence, heightened anti-LGBTQ violence, et cetera, et cetera. So this is a real problem. Real people are impacted. Real people's lives are impacted on a daily basis, and they don't all get the kind of security that the judge and the prosecutors and the FBI get. And those threats to the

actual violence and the actual violence that results are there for a political purpose. And you only need to look at January 6th

or to the reports from Senator Mitt Romney about senators who wanted to vote to convict Donald Trump in the impeachment, but did not because of fear for themselves and their families and it not being worth fear. And it's pointed and it works. And you would think that there would be a bipartisan effort. Mary, though, that you couldn't end on a better note

note than the work that you're doing. And you truly are somebody who did God's work in the government and you're doing God's work now. And it's really, it's so great to be able to live with it just by podcast companion. It

and to see it through that sort of osmosis. It's a small effort and it takes a whole lot of us, but a lot of lawyers and other people out there are really trying to support democracy and support those who've been subjected to these kind of threats. So we're just going to keep on fighting. Perfect, perfect ending. Mary, I look forward to seeing you in person.

next week on the 4th. And this time I'll be hosting you at NYU the way you hosted me at Georgetown. And because of our brilliant, dedicated team here, that'll likely be out on the 5th after they clean up all of my ums and ahs. And we have a really great special guest, the former dean, Trevor Morrison, who is an expert on presidential immunity and a number of the

legal issues that are coming up. So I'm really looking forward to his being able to share that with you all because he's just a wonderful person and he's also deeply smart. Yes, this is going to be a really great episode. I've been looking forward to this one for a while. And of course, I love coming to NYU. Thanks, Mary. Thank you.

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.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Jamaris 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.

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