Live at Georgetown Law! 59:29

Hello, and welcome to the next episode of Prosecuting Donald Trump, live at Georgetown Law. I'm Mary McCourt, and I'm here with Andrew Weissman.

We are actually, we're thrilled to be here. This is our first ever live recording of the podcast. We are so happy to be doing this in my home turf, which is why I got to do the opening, Georgetown Law. We welcome the Georgetown community here, and we are excited to be able to actually take some of your questions at the end of the podcast today. So appreciate that probably most of you, I hope, are regular listeners, and if not, you've been keeping up. We will obviously be talking about

criminal cases against the former president, Donald Trump. What else would we talk about? We're going to focus in particular today on the two cases related to the January 6th efforts and everything leading up to it to overturn the 2020 election. So that is the federal case being prosecuted just a few blocks away at the District Court for the District of Columbia.

That case, of course, was brought by the special counsel, Jack Smith. It charges only Donald Trump, and it charges him with three different conspiracies, all related to the efforts to overturn the results of the 2020 election. Now, of course, there are numerous unindicted co-conspirators in that case, all of whom we've pretty much identified, but he is the only one set to go to trial in that case.

The other January 6th related case, of course, is one that Andrew and I often call like a subset of the federal case. And that is the Fulton County, Georgia state prosecution brought by District Attorney Fannie Willis.

against not just Donald Trump, but Donald Trump and 18 co-conspirators alleging a vast RICO conspiracy. Since I only tell anecdotes, we were talking beforehand that like my ratio of substance to anecdotes is like two anecdotes to one substance. And I'm going to keep track today. So my anecdote on acronyms is Janet Napolitano when she was head of DHS.

Department of Homeland Security. Got that right. And she announced at the beginning of her tenure to her entire staff that if you make it through a meeting with her without using an acronym, she will buy you a case of beer. She won. Never had to do it. No one got through a meeting without you. It's ridiculous.

kind of impossible in this town. - Yeah, in the federal government and in Washington, DC. So, okay, in that case, in Georgia, we have 19 co-defendants all about really the efforts to, in this case, overturn the will of the Georgia voters, right, as a subset of the entire 2020 electorate.

These cases raise some common issues. The defendants in both cases have been indicating they're raising defenses of immunity, immunity from prosecution based on being the president, being a federal official, being a presidential elector. And we'll talk a little bit about that.

But they also have really pending, constant developments. We've had new motions filed in the last 24 hours. We have a hearing in Fulton County, Georgia, that will begin almost the minute that this podcast ends. I think the judge would want to be respectful of the podcast. Yes. He's scheduling this to start as we wrap up.

Yeah, they'll be perfect. So we'll talk about all of that. And what we won't really talk about because we just don't have time and because these cases are just kind of sitting in a holding pattern right now are the two other cases against Donald Trump, right? We have the New York prosecution by Manhattan District Attorney Alvin Bragg of Donald Trump for 37 different counts of falsifying business records relating to the hush money payments to Stormy Daniels. That case is set for trial in late March of 2024.

And we have, of course, the other federal charges brought in the Southern District of Florida against Mr. Trump for mishandling of classified information and other very highly top secret national defense information and against he and two of his aides for then obstructing the investigation into the mishandling of classified information. That case is scheduled for late May of twenty twenty four.

But right now, those are not the cases where there's a flurry of activity. Those cases are the January 6th related cases. So with that table setting, also a term that is used in the federal government all the time. Let me set the table. Level set. Level set. Level set. No, I just want the wave tops, Andrew. Oh. Yeah, yeah. I've been out of Washington too long. Yeah, yeah. You're forgetting these. So welcome to Georgetown. Thank you. It's great to be here. I was telling Mary about this.

yesterday, because I hadn't been back here, I think only once since 2019, when the Mueller investigation came back. And this time I could come back and I didn't feel like complete sort of like PTSD hives. But I've lived here for 10 years. The work kept on bringing me back. So I was on Enron. I came back

General counsel of the FBI. General counsel of the FBI. I then was in the halcyon days. I was the chief of the fraud section.

which is just, it was so great. Like, you don't have to worry about politics. You could just do your job. And then I spent two years on the Mueller investigation. So it just kept on sort of pulling me back. He says he's a New Yorker, but really we know better. Yeah, so that's what a friend of mine, when I remember saying to a friend of mine, I was like, you know, I'm an inveterate New Yorker. And a friend of mine from New York goes, not anymore. And I was like, okay, time to go home. So...

On the train coming down here, I was thinking about this surreal nature that's in sort of my personal journey because, you know, one, you and I never ever thought this is what we'd be doing post-government or doing this because we're talking about a former leader of the free world facing 91 felony counts and four separate indictments, which is really surreal. And

The nature of what we're about to talk about, whether it's in Georgia or in D.C. in the January so-called January six cases. You know, when I think about the Mueller investigation, that was an investigation with respect to the last election and dealing with foreign interference there.

and an effort by Russia specifically to foment dissent in this country, whether it is distrust in the government, whether it is misinformation, not believing what people say, suppressing the vote, particularly the Black vote. All of that was very, very sophisticated, but coming from

of the external to the United States inward and what these indictments about and what we're actually still living in. I mean, it's not just historical is that this has all taken root and we're dealing with it domestically. Like everything that we were focused on seems so quaint because I'm not saying that it caused where we are, but it's like almost not necessary anymore for, I mean, that's going to still continue, but...

all of those efforts. It's like the problems inside the House. Those same foreign adversaries, like we always expect election to election that they'll try to meddle. They meddle in sort of unprecedented ways, partly because of technology and because of who the candidate was and other things like that. But it was coming from

Our adversaries outside of the United States primarily. And what we've seen, what these two January 6th cases are about really is the domestic efforts right here at home. We don't even, you know, in many ways, the foreign threat is not even the most significant threat.

And to me, that also, I mean, that's sort of my trajectory, yours. I mean, I'm like seeing people here from ICAP. ICAP. ICAP in the house. Right. So which is like, you know, your effort to deal with that sort of domestic issue that's that's going on here. Yeah.

I mean, some of our work is protecting against political violence, suing unlawful private militias, groups like the Oath Keepers and others, and suing fraudulent electors in Wisconsin, like we've talked about. So, yeah, the threat and, you know, that threat also, and, you know, we want to get into the cases, but...

This domestic threat is also what has caused the need for things like the Department of Justice Election Threats Task Force, which has, you know, 14 investigations and prosecutions pending against people for threatening election officials for doing their jobs, nine of which have resulted in convictions, including some pretty serious sentences when you're talking about oftentimes online threats, sentences of two and a half and three and a half years. Right.

But also threats against the judges now, grand jurors, witnesses. So this is a whole new environment that these cases are taking place in that we haven't typically experienced in the past. That's like a perfect segue to...

the Georgia case because it's a very skillful use of the threats with respect to Ruby Freeman and Shea Moss. And those, I mean, for former prosecutors, the idea that you are very forward-leaning on threats to people who are doing their job as part of the electoral process is so critical. And if there's any deterrent value, any, that's the case where you want to bring it. And I

I think, I actually think the strongest and sort of most compelling part of the Georgia case are those allegations. Because, well, all of it, whether it's the federal or state January 6th case, has something we're used to, which is an abstract victim, which is all of us in this room. Democracy is the victim that's

obviously something that people will take seriously, but then having an actual person who is victimized as a prosecutor, it brings it home. You know, obviously, Ruby Freeman and Shane Moss have a civil suit, which is advancing

These were the two election workers in Georgia that had just lies made up about them for just doing their jobs. And that caused them to be really mercilessly threatened and harassed. Yeah. So obviously, like this, the federal civil case is now just going to go to the damages portion. And then to me, there's like if I had to say like a misstep by people who were trying to overreact,

overthrow the will of the people, it's by attacking dominion, attacking Ruby Freeman and Shay Moss, people who can sue civilly.

they opened the door to those kinds of lawsuits. I mean, E. Jean Carroll, in a different context, is the judge, was it today or last night, just issued a decision for summary judgment on her second defamation claim. So that's also just going to damages.

So those are really fantastic suits. It relates a lot to what you're talking about at ICAP, which is like using the civil law to have accountability, which is huge. I mean, people care about, you know, money can have an effect. But let's turn to the criminal part in Georgia. It's like, to me, we were trying to figure out ways to say this, which don't involve curse words, but it's a little bit of a, let's just say it's a bit of a mess. And you can fill in, you know, your favorite curse word. Two words, start with S, H. But okay. Yeah.

So the way I think about Georgia, because there's just kind of too much going on because there's just too many defendants and there's federal litigation and there's state litigation. And unless you're like us, we're, you know... It's hard to keep up. Someone told me not to say this because it's like, we're nerdy. It's like, we read all this stuff. So the way I think about it is you have...

two separate tracks going on and a lot of unknowns. So on the one hand, as you just talked about, at the state level, you have Judge McAfee, who's got to decide with respect to 19 people

Who's going to go to trial and when? And the who can be, is it going to be Chesbrough who wants to go to trial quickly? Is it going to be Sidney Powell, one of the lawyers? I think I might put that in scare quotes. Yeah, who wants to go to trial quickly, but not with Chesbrough or any of the other 18 code offenders. Yes, right, exactly. Basically, Chesbrough is like, I want to go to trial, I want to go to trial quickly, but I don't want to go to trial with Mary. Yeah.

She's too crazy. And one of the things that Chesbury said is like, I don't even know her, which, by the way, is not how the law works. I mean, you know, the way RICO works is like, you know, you don't have to know all of your co-conspirators. I mean, you will know some of them, but that is just not a prerequisite.

So at the state level, you have Chesbur saying, I want to go quickly. You have Sidney Powell. Oh, yeah, I was going to say full disclosure, Sidney Powell in a prior life when I worked on Enron, she basically sued all of us. She filed disciplinary complaints against all of us repeatedly. They were all denied. And we all knew that she was, let's just say politely, not a serious person. And she kept on filing repeat disciplinary proceedings against like

all of us, all of them constantly got dismissed. And we were like, okay, the world needs to know. And then it happened. The world knows. And now she's the one facing the disciplinary...

Exactly. So she's also wants to have a fast trial. And then you have people who don't want a fast trial, namely Donald Trump. I mean, that's sort of like, you know, I'd like that never. And yeah, that's which is an unusual for most defendants and that they don't want to go to trial anytime soon. As Amy Berman Jackson, the judge in D.C., used to say about courts, it's like the place where facts and law still matter. So if you're planning on spinning the public and not dealing with facts or law, it's a

really unhelpful to be in court. So that is something that the judge at the state level has to decide. Are we going to try them all together quickly? Are we going to parcel them out? Like, how are we going to deal with this? It's unusual for a judge to say, oh, I want 19 separate trials. I mean, it's just inefficient.

The idea, though, that two people could say, I want a really quick trial, and that means the other 17 are going to have a quick trial, to me, doesn't feel like due process for those 17. Because, you know, it's a fast time to say, I want a trial in October. I mean, you are entitled as part of our

criminal justice system to have sufficient time to prepare. And meanwhile, you have some of the co-defendants seeking removal, which we're going to come back to, right? Seeking to remove their case from state court to federal court. So all these things are in play. So let's just break this out a little bit. So

This afternoon, Judge McAfee will consider these motions to sever, Chesbrough's motion, Powell's motion to sever their cases from the other defendants. And under Georgia law, it's really in the discretion of the trial judge to decide whether all the defendants

who were jointly indicted together will go to trial together or whether it will be broken up into pieces. And as Andrew said, it would be unusual to actually have all 19 sit together, even if that was ideal, because frankly, they don't even really fit in a courtroom with all of their defense attorneys. - It's a circus. - It's a circus. Each counsel is questioning the witnesses. That's 19 different cross-examinations. And so typically in big multi-defendant cases in federal court where we both practice,

And think about like the Oath Keepers case, right? You had a big indictment with over a dozen defendants. So the judge broke that into two different trials so that it was more manageable than having all 13 of them sitting in court. So that's one reason that sometimes they get broken up. But the law generally is that when...

You know, it could be unfair to the defendants to be tried together, either because there's too many defendants. It could be too confusing to a jury about which law applies to which defendant, which counts apply to which defendant. That might be a reason. That might be their best defense for some of them. Yeah, that might be their best defense.

Then there's also the sort of like the spillover effect that it could be that evidence that's only admissible against my co-defendant would end up getting used against me, and that would be unfair. So that's another reason you can move to what's called sever your cases. And then the other is we have antagonistic defenses. What I'm going to argue in defense is inconsistent with what he's going to argue in defense, and that prejudices us both. So these are sort of the things that a court will look at when considering whether to grant that severance.

I was really surprised by Fannie Willis, not in that she charged this altogether. Years ago, I charged a mob on Wall Street case in New York and had 100 defendants. But there was no way in God's green earth that I was planning on, nor would the federal judge have allowed me to have a trial of 100 or anything even close to that. You could do it in a stadium. Yeah. I mean, it was all going to have to be for due process. I mean, the reason it's just it's just it's not good for the

government. But you can charge it that way. But then you propose to the court how you're going to sort of separate it out. And so I was surprised by Fannie Willis sort of saying, oh, yeah, we want to try all 19 together. I mean, that just isn't I mean, if she really means it, I think it's a terrible, terrible strategy. And also, if you have two people who want to go quickly, which she has been fine with, then are you really saying you want the other 17 to go with the other

true because I also think that's a, I personally think that's a due process problem. So I just don't know that she was serious about that particular idea. So I just wanted to for a moment talk about the federal component because all the thing that could just sort of gum up all of the works here. So you have McAfee sort of deciding what he wants to do. But the other piece of this is that you have the people who served in federal positions or

allegedly served in federal positions because some of the some of the federal electors have sought to remove saying that they served in federal positions. Afani Willis's brief is really good saying if you pretend to be a federal officer, you don't get to remove. It's like, you know, that can be a pretend removal, which means you're staying in state court. That was it was a really funny brief because it was just like, you've got to be kidding me. Yeah.

That's at least that's how we would have. That would have been the New York Brooklyn version of the hearing. They're getting a hearing next week. Exactly. Jones has given him their day in court. So that is a complicated issue. Meadows is obviously leading the charge. Meadows testified.

It was ugly. So we don't know what the removal decision will be. We do want to talk about one really interesting aspect of the question the judge asked, which was really good and serious. I don't think the judge bought for a nanosecond Mark Meadows' views or testimony. I mean, I think reading the transcript, I mean, you could be wrong, but I think I thought Meadows just...

There's no polite way to say it. He lied. He lied. Right. So... Maybe he just forgot. In the course of telling his lie about the fake electors, he also managed to also undermine the removal because he said, I was doing this for the campaign. So the whole point of the removal is that it has to be part of your...

office as chief of staff. If you say you're doing it as part of the campaign, well, guess what? Under the Hatch Act, that's not to be separate. So by hour three, he'd sort of forgotten the script, and he just announces that he did this for the campaign. And it's like, OK, game over. But if the removal is granted,

then it's unclear who gets removed. There's conflict. There's not a lot of law on this, but like one idea is that everybody gets removed, which is a little weird because like that's sort of a happenstance. And we've just talked about Chesbro wanting a speedy trial and he's entitled to that under Georgia law and Powell wanting a speedy trial. So do they get removed along with him? I think highly unlikely. Me too. Like this is what I would call like our gut.

check, which is, yeah, but which is like, it just doesn't make any sense that that would, even though there is some conflicting case law, it just seems unlikely that if there was a removal. And one line, there's a couple, there's several ways it could be split. But one, one line is like, not all of these co-defendants were federal officers. They don't even they wouldn't have any federal officer removal, sort of right under law to begin with. So why make why have

them go along. That's like a little pendant, right? Exactly. So I wanted to ask you about the appellate process and like what happens if the judge grants it or denies it, like what happens on appeal. Before I do that, let me just give you quickly the question that Judge Jones, the federal district judge asked, which I thought was really good. And I think nobody has really picked up on it. It's not in the briefs and responding to it. The judge said that

What do I do? What's the position of the parties if I think one, but not all, of the overt acts charged in the indictment is within the official role of a chief of staff? Meaning, remember, if it's campaign work, then no removal. But if it's chief of staff work,

there is removal. And he said, but what if there's a little piece? What would the import of that be? Is that enough for me to say the whole thing should be removed? As you can imagine, Fannie Willis said, well, first, it's all campaign, but I'm not going to fight your hypothetical. If your hypothetical is I find one, it shouldn't matter saying that the gravamen of the case doesn't involve overdox. I actually disagree with her in part for the reason I'll get to. Do you want me to just spell that out a little bit? Her point is he's charged with a conspiracy.

And so we didn't even have to allege that Mark Meadows committed a single overt act. Our conspiracy is about he joined this agreement to violate Georgia law in a number of ways, knowing and intending for those results. And that included things like, you know, the

the fraudulent electors scheme and pressuring Secretary of State Brad Raffensperger to find 11,780 votes. So her point is, we didn't even have to have any overdecks. - Exactly. - So if there's one that was within the scope of your duties, it doesn't matter. - It's like surplusage. - Yeah. - Right, and Meadows, of course, said,

that you should remove it. Imagine a situation where there were 99 overdocs where they were within official scope and there was one that was campaigned. Is it really going to be the case that that doesn't get removed? In other words, let's talk about ratios here. And so that was like a pretty good

I mean, it's somewhat counterfactual because it's not going to be 99 to 1. And the judge was sort of saying it's more like 1 to 99. But I think the reason Fannie Willis

slightly off was, and this is like super technical, that under Georgia law, RICO does require the jury to find one overt act. As Mary said, it doesn't have to be an overt act by Mark Meadows. It could be any overt act that's charged and they could have none as to Mark Meadows and somebody else as part of the conspiracy committed an overt act. Not each conspirator has to commit an overt act and it's not required. But sitting here today,

We don't know what the jury will find, right? So if the jury is told, here are the 100 overt acts, and among those overt acts is the one that the judge says is the one that Mark Meadows committed that the judge thinks is within his official duties, we don't know what the jury will find. So the jury could...

be finding its verdict based on that overt act. And if that's true, then that would be something that needs to be removed or should have been removed. So I would have dropped a footnote. Is everyone with me so far? And let me interject with one thing. The reason for it,

entitling him to removal, something we talked about on the podcast last week, is because he might then have a defense, an immunity defense, that I can't even be tried for this crime because I was acting within my official responsibilities as a federal official doing what was necessary and proper to carry out those responsibilities. So from his perspective, if the jury decided on that one overt act, his rights have been violated. So if I were Fannie Willis, I would have dropped a footnote that said,

Yes, as we said, we think all of it is campaign related. But judge, if you disagree, whatever overt act as to Mark Meadows, you think is official, an act or acts, plural, we will not rely on that when we get to the

trial phase. In other words, we will not submit that one to the jury. So you will know that the jury cannot be finding guilt based on that. And that sort of cuts it out and carves it out. And the reason I think she needed to do that, it's not clear what Judge Jones wanted.

will do on his own, because Judge Jones could take the view, which is he could propose that and say, you know, if it's not cut out, if it's not this, then I'm going to do that. Are you willing to strike it? Or I'll strike it. And so he sort of cures it that way. But he could also say, look, I've got an indictment. This is the indictment. I've been asked to decide whether it's removed. There's an overreact here that's alleged that could be the basis. I'm just going to

deal with what's before me. My job is not to cure, not cure. I'm just ruling out what's before him. And he hasn't accepted the case yet, really, right? So it wouldn't be his job to order it so much stricken, but they should be offering, if you find one of these within his official duties, we'll strike it and we won't offer evidence.

So it'll be interesting. I mean, obviously, this could come down any day now. I mean, we're sort of waiting. Maybe while we're talking. Let me segue, because I know we want to get to questions. Because we've been talking about immunity for Mark Meadows, remembering his role of chief of staff, and coming up next week is a hearing on

Clark's motion, Clark, who was the former acting assistant attorney general, who the president wanted to make the acting attorney general so that he did for a day, part of a day. It seems to have done it for part of a day. He also has filed a removal motion, as have these three presidential electors. And so those will get argued next week. But

This immunity question leads us back to the January 6th case pending here in federal court right down the street, because one of the things that happened last Monday at the hearing before Judge Chutkin, Judge Tanya Chutkin, who has this case, when they were discussing the scheduling of a trial date, one of the things that Mr. Lara, who's Mr. Trump's attorney, said is,

There's going to be so many motions, Your Honor. There's no way this case can go to trial when the government wants or even when the court ends up ultimately setting it. There's going to be so many motions and we'll be filing this week or next. So here we are in the middle of next week, an executive immunity motion, meaning the former president is immune from being tried for any of these charges that he's been indicted on because he was

performing them in his role as the president of the United States. These are within what's called the outer bounds of his outer perimeter, outer perimeter of his official responsibilities. And we will have a whole nother podcast where we dive into whether we think that some of the things he did are actually within the scope of what a president of the United States is

expected to and authorized to do under Article 2 of the Constitution. I was going to say something totally like glib and superficial, which is the outer perimeter that works if the outer perimeter goes to Mars. Well, right. Or beyond. Is that qualifies glib and superficial? No, no, that's actually good legal argument. Yeah. Okay. I was trained in Brooklyn. You're more like the appellate serious lawyer here. I'm here for embroidery.

By the way, I have a really interesting fact that I learned this morning. It's about the Tanya Chukin March 4th date that she picked for the trial. You know, she heard both sides. She had lots of argument and briefing on it before she picked that date. So do you, this was, I'll give you the question. Do you know the significance of March 4th? I know it's the day before Super Tuesday. Okay.

Interesting. Nope. But there's another significance, but I forgot what it was. Yeah, it's historical significance of March 4th. Anybody? It's the inauguration day.

Exactly. So I want to repeat that because I don't know if she'd have been picked up for the podcast. Used to be the inauguration days as one of our guests. Exactly. And so March 4th, before it was changed, and we had January 20th, and the first day that Congress would sit was March 4th. And so just given the nature of what this is about, I just can't imagine that

that was lost and to check in that that was the date. I do not think back to the fact that Super Tuesday is the next day. I don't think that had anything to do. And I don't think she probably even was aware of it at the time she set the date. But very quickly before we transition to questions,

This immunity argument, when it comes, one of the things that's interesting about this, and this also applies to removal, is if that is denied, this is something that would, I think, be appealable. The Supreme Court has never directly ruled on that because we haven't had a former president be charged with a crime where he... Thank God. Thank God. Hopefully it'll never happen again. But in other contexts that are so analogous, these are things that are appealable, but

interlocutorily, which means before you've come to the end of the case. In criminal prosecutions, generally, defendants have to wait till their case is completed, then they can appeal and they can allege all the different things they think that the court did wrong. But there are a few times when you can appeal even before you go to trial. And one is when you are arguing that

going to trial would violate your constitutional right not to be put in jeopardy twice. So double jeopardy. And the idea there is that's a right not to even have the burden of going to trial twice. So if you had to wait till after you've gone to trial a second time before you could appeal it, you would already have had your constitutional rights infringed on. The speech or...

debate clause, Congress members have been able to successfully appeal interlocutorily to say if they were denied the right to immunity based on the speech or debate clause to say, again, because of that immunity, they shouldn't

even have to suffer the burden of trial. So there's no reason to think that executive immunity, other than the fact that it doesn't appear explicitly in the Constitution the way that speech or debate does or double jeopardy, there's no reason to believe that that also wouldn't be something that's appealable, particularly because the Supreme Court has recognized the appealability of

absolute immunity for a president in civil cases. And here we're talking about a criminal case where liberty is at stake. So, Mary, does that mean just to make sure everyone understands the...

important of what you're saying is that not only is it appealable, but the Supreme Court, if it does, if it takes its sweet time, that even though March 4th is the date that Judge Chuckin picked, that if this is appealed, which there's no reason it wouldn't be, that the court could stay, either the appellate court, which I assume is going to act very quickly given its history. And the

That's a real-life example. But the Supreme Court, you know, it could act relatively quickly, but it could also stay the case, getting briefs, etc. So then there would be out of judge's way. Yeah.

And we can talk a lot more about this. And similarly, the removal motions, if these are denied, if they're denied, if these are based on immunity, those under by law are appeared. On the other hand, the removal, the statute- Does not stay the underlying case. The federal removal in Georgia does not stay the underlying case. So that you could have a lot of that litigation, but that's going to proceed at pace. You just can't have like a final verdict until the removal piece is over. So there's lots of concern in Georgia about-

But the Supreme Court won, and Mary's right to sort of keep your eye out for the Supreme Court, whether there are enough votes to issue a stay. More prosecuting Donald Trump, live at Georgetown Law in just a moment.

MSNBC Live Democracy 2024 Saturday, September 7th in Brooklyn, New York. Join your favorite MSNBC hosts at our premier live audience event. Visit msnbc.com slash democracy 2024 to buy your tickets today.

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.

A U.S. senator destroyed by blackmail. He was not bound by the truth or by facts. The country's most outrageous political demagogue ascending toward the peak of American power. Millions upon millions of devoted followers. This is a story of heroes willing to face down tyranny and the risk to the country if they fail. Rachel Maddow presents Ultra, season two of the chart-topping original podcast. All episodes available now.

So we have like a bunch of people who had submitted questions before and we selected some. There were really fantastic questions. We tried to pick ones that we thought would be of general interest. And then we'll try and get through those and then turn it over to any questions that you just have in general.

Hi there. My name is Jesse and I'm a fresh new first year law student here at Georgetown. I just moved from Brooklyn where I had been watching, reading, listening to your analyses for years. I'm wondering about jury selection. If you were questioning prospective jurors, how would your questions differ among DC, Fulton County, and Southern Florida jury pools? And what qualities in prospective jurors would you hope to determine with your questions?

That is a really interesting question. You know, so it sort of depends on the defense versus the prosecution. I've picked a lot of juries in all sorts of locations. So just thinking of special counsel Mueller and the cases we did there, the defense basically wants to know, and at times has even asked the judge, who did you vote for? I mean, and so that's not allowed. I mean, I'd be shocked if a judge allowed that. But then all the questions the defense asks are basically just a proxy for that.

So it's like, don't tell me who you voted for, but just tell me what your views are of Hillary Clinton. You know, it's like, you know, and then compare that to your views of Donald Trump. I mean, so like it all becomes just a proxy game on the defense side. For the prosecution, I think there are different views of like different prosecutors have different views of what they're looking for. I always have this view, which is like I brought the case because I think I'm right. Otherwise, I wouldn't have brought the case.

And if I think I'm right, I want the smartest jury possible.

to understand the proof and the arguments that are made and to not get fooled or confused. And I don't mean that in a bad way for the defense lawyers. The defense lawyers have a job to do. I've been a defense lawyer. Their job is to make it confusing and complicated and gray. And gray is not good for the government and it's good for the defense. So I always want the smartest jury possible. So that's something I usually look for. The biggest issue is,

for both sides in terms of what they're looking for, regardless of jurisdiction.

is the government is going to want a jury where people will follow their oaths and they will actually make up their minds based on the facts in court and the law is given to them by the judge. And the defense, depending on the strength of the case, is usually that's the last thing they want. They're looking for the one person

holdout juror. They're looking for, is there, you want as many sort of erratic people as you can find to be on the jury because you only need one. It

It's very hard in these cases for me to think that there's going to be a full-out acquittal. An acquittal, you need to have 12 unanimous jurors who find that there was not proof beyond a reasonable doubt. It has to be unanimous to have an acquittal or a conviction. But for the defense, it's always viewed as a huge win to have a hung jury, which is there's no verdict, but you only need one.

And the biggest problem for the government in a high profile case, and I've seen this in Enron, is you have somebody who wants to get on a jury. Most people are sitting there not waking up in the morning going, I can't wait to do jury service. But in a high profile matter, that's the problem is somebody who wants to get on the jury and is not candid.

In one of our trials in Enron, the jury didn't come back for 10 days because juror number one decided he was going to write a book about the case. And so all of the exhibits that were brought into the jury room, he was copying them down.

because he wanted to write a book. This, by the way, could never happen in New York, because I think there would have been a murder case to go along with our case, because the other lemon jurors would be like, "Okay, we have a solution for this." Because that's just not going to happen. But this was in Houston. People are much more polite. So they just waited for him to write things down. I was curled up in a fetal position in my hotel room waiting for the jury to come back.

And then when he was finished copying down the things he voted to convict, we were lucky because he voted to convict and we were in the prosecution. But that's what you're worried about is the erratic person from both sides for different reasons. So it's particularly concerning, you know, for the government here, because, you know, it takes time.

unanimous jury to convict, but it only takes one juror to hang a trial. And that doesn't mean acquittal. In fact, far, far from it. It could be just one juror is unwilling to follow the rules. But in a case like this, that would be portrayed by Mr. Trump as a win, as a victory. And so it's a referendum. I mean, I remember when the first Manafort case went, Bob Mueller was like, you know, you have

to win. Yeah, right. Because it was going to be a referendum on the prosecution. Absolutely. So, okay, to move on. Thank you. Hi, my name is Ethan. I'm a 2L here at Georgetown. I guess to set the table for my question is that there seems to be a real possibility that Mr. Trump wins the 2024 election and is then subsequently found guilty of one or more of his charges.

So my question is, what happens in that situation? Can he be removed? Who would enforce that removal? And as a sitting president, what would his legal defenses be? We don't have any real answers to those questions. They're great questions. I think we have a lot of things we can analogize to. So certainly there would be arguments if the trial did not even start until after he was sworn in as president. He would make arguments that under Article 2, his

obligations and responsibilities as a president of the United States and as a commander in chief were completely incompatible with having to sit in a trial and that any trial should be delayed until after his time in office. And certainly there's some precedent for some delay of things while a president is sitting in office. And he could make that argument with respect to, for instance, the

state case. That's right. The Georgia case, he could be like, delay it because I'm currently the president and we can do that. We can do this trial. We can do it later. That's right. He also, to your point of let's assume the trial did go forward, let's assume he was convicted, could he be removed? I think the only basis, I mean, there's no basis right now in law for that type of removal other than impeachment. And, you know, that's been tried twice before unsuccessfully.

But it's possible, depending on what the convictions were for, there could be an argument under the 14th Amendment, Article 3, that he engaged in insurrection or rebellion against the United States and therefore is ineligible to serve. Now, as we've talked a little bit about on the podcast, and probably many of you are just tracking because it's been

the subject of a lot of discussion in the media and some scholarship written by some conservative law professors and other great commentary by other conservatives, including former Judge Michael Ludig, that he's disqualified right now, that we don't need criminal convictions for anything. It doesn't have to be a conviction for insurrection. It doesn't have to be conviction for sedition, that his

actions that we know of because they're publicly documented already disqualify him from office. That is something that we are already starting to see litigation. I just had an email that I haven't even opened yet. I just saw the first phrase of it right before I walked in this room today, that the first case is being brought in Colorado. So this is an issue that may get up through the courts before the election, but that

doesn't mean that there couldn't be a different way of thinking about it, you know, after the election, if he were to be convicted of things that somehow fell within that. And then there's also the question of, you know, we've talked before about if he were convicted before and were sentenced to some sort of prison time, could he still be president from prison? I mean,

The technical legal answer is there's not a bar to that. The practical answer is you can't really be the leader of the United States of America from prison. It's not practical. And so... Mary, you're just out on a limb there. Yeah, yeah. So, you know, I think all kinds of unprecedented discussions and arguments that we've just never, ever had to deal with would be made to the courts. One quick note is with respect to the federal...

Oh, right. So with respect to Mar-a-Lago, the Florida case, and the D.C. case, the federal level, if...

Donald Trump or an ally were to become president, they can simply have the Department of Justice end the case. If it hadn't gone to trial, they can just dismiss it, even if it's gone to trial. So think of Michael Flynn. He had pled guilty, and Attorney General Barr made a motion to basically sit in support of the idea that he should just get his plea back and the case should go away.

And, you know, it's interesting because, you know, technically you need the judge's approval right to dismiss. But that case involving Michael Flynn got argued to the judge, even went up on appeal on this issue of could a judge really deny that when the government says we're not going to prosecute? And, you know, worse comes to worse, the president pardons himself, pardons others or his ally pardons him. Right.

Pardoning himself raises another set of legal issues for another time. Okay. More prosecuting Donald Trump live at Georgetown Law in just a moment. 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 correctly.

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. Go beyond the headlines with the MSNBC app. Watch your favorite shows live. Get analysis from live blogs to in-depth essays and the latest updates on the 2024 election. Visit msnbc.com slash app to download. ♪

Hi, my name is Bill. I actually work with Mary at ICAP. So it's wonderful to have you guys here. My question also deals to some extent with timing. There's been a lot of discussion, including already today, about when the trials of Donald Trump might go forward. But of course, even after a trial, there'll be subsequent appeals and other things.

So what do you think is the probability that Donald Trump will spend one or more days in prison on or before next November 5th election day? And do you agree with me that it's probably zero? You know, in each case, he faces significant prison time, less so in the New York case, but the federal cases for sure.

Certainly the statutes and the guidelines call for prison time. But can I just say we have the data. You have a March 4th D.C. federal case. You have at least currently a.

late March Manhattan case. A little unclear because Judge Shutkin talked to that judge about whether it was okay for her to take the March 4th date, so it's unclear whether that date will stick. And then we have a May trial date in Florida. So those are sort of the three... And then the Georgia one's got a slot in there somewhere. -Yes, somehow. -Yeah. Right. So assuming one of these gets to trial, and I think one should be

should get to trial, whether more than one gets to trial, I'm a lot less confident of. And assuming there's a conviction, as those who have either practiced or studied criminal law knows, you don't go to sentencing the day you're convicted. There's a period of time where the pre-sentence report writer writes a report. Your attorneys make arguments about the sentence. We've just seen that, you know, over the last few months in the Proud Boys trial and the Oath Keepers trial, and it happens all the time. Minimum 60 days, right?

But of course, Mr. Thompson... Unless there's a waiver by the defense, which there won't be. Yeah, right, exactly. He's not going to be rushing to sentencing. And so again, this would be another thing that he wants to delay. Unless the court were to find that he is a risk of flight or a danger to the community, he would be released pending sentencing. That's typical and ordinary in cases that don't involve sort of violence or risk of flight. Or obstruction.

Yes, yes. That's true. Just throwing it out there. Yes, yes. And then... I remember Manafort was remanded because he obstructed while out on bail. While out, yeah. And so that's a possibility that he could write his own... I just wanted to give something positive. Yes, yes, that's right, that's right. It's not all bad news. Yeah, yeah. And then even once sentenced, even assuming that prison time is part of a sentence, he could appeal his conviction at that point after sentencing, and he could seek to recalibrate

remain out on bail pending his appeal. And the statute, when you read it, you would think that he wouldn't be able to do that if found guilty. And certainly as prosecutors, we've argued plenty of times the presumption now is that you will start serving your sentence. And if you eventually get your conviction reversed, then we'll deal with things at that time.

But the reality is, particularly in white collar cases, that oftentimes judges will say, well, there's a legal issue here and we will let the person stay out of prison on bond while this appeal takes place, even though the standard should be that the legal issue is likely to result in a reversal. And, you know, in many cases, I don't think the judges actually think that, but they're hesitant often to incarcerate. Because the idea is like, should the...

where I'm sending the person in jail and there's some chance that if the court reverses, then they've actually done jail time when they shouldn't have. Steve Bannon is a good example because he was convicted. He,

Just down the street. And he's out pending appeal. One thing that, just to put a gloss on the question, is you could have a situation where Judge Chutkan has her trial on around March 4th, that you have a verdict, and assuming it's a guilty verdict, and that you have a sentencing before...

even the Republican convention, but certainly before the general election. So you may not have him going to jail, but you could have a sentence from Judge Chutkan. And I do think... Of jail time, potentially. And potentially of jail time. My own view, just looking at the Enrique Tarrio decision by Judge Kelly,

conservative federal district judge, again, right down the road, where the highest sentence so far of 22 years is, I think that's just enormous pressure for the rule of law that Donald Trump would go to jail, would be sentenced to prison time. I mean, you have the leader of the Oath Keepers going to jail for a significant time, the leader of the Proud Boys, the idea that the leader of those leaders

would not do jail time. And remember, Rico Tarrio was not there on January 6th. And actually, he was less there than Donald Trump was. That's right. So I just think it's important, especially we're in Georgetown, where people are so close to... We can see the Capitol from here. The district judges who are deciding this are right down the road. They're dealing with scores and scores and scores of people who they are sentencing to jail for what happened. And whether...

appointed by Donald Trump or any other judge, they've been very uniform in being quite vocal and poignant about what happened that day. And Mr. Trump's role in what happened. Exactly. Not as an excuse, and people are being held accountable, but they recognize that the people who are being held accountable did this

because Mr. Trump asked them to. Yeah. So I just think for Judge Chutkan, she'll make her mind if there's a guilty verdict. But I just think the idea that she would not sentence him to jail, I personally think is remote. She strikes me as an extremely good judge. You obviously know her a lot better than I do. So that's like one thing that could happen is even if he doesn't serve a day, that you actually have this

I think, very important pronouncement from a jury and from a judge. All right. Good afternoon. How are you? I'm Emmett. I'm an LLM here. And my question is, to what extent are the obstruction findings from the actual Mueller report of evidentiary weight or help establish a pattern of practice in the current obstruction charges?

I think I'm going to take that. You better take that one, Andrew. It's got your name all over it. This might sound a little boring, but it's like, we'll start with the rules of evidence. So the report itself and findings in the report are not admissible under the rules of evidence. You need to have sort of non-hearsay evidence. So I'm going to take that question as more

If you wanted to put on proof of that obstruction, so for instance, if you wanted to call Don McGahn just to take the most notorious or salacious or damning of the pieces of evidence in volume two of the Mueller report, Don McGahn, I'm just going to give you the...

which is, he said, "I was asked by the former president to say that I was never told by the former president to fire Robert Mueller and that I should write an affidavit, a statement to that effect, and I should give it to Donald Trump so he can put it in his safe to hold it over my head." And he said, "I'm not doing that because that's not what happened." And he came in and told the Mueller team,

this is what the former president asked me to do. That would then be competent evidence because you'd have a firsthand, percipient witness talking about what the defendant did. Now that's rules of evidence A. Now you get rules of evidence B. You didn't think you were going to go to law school, did you? But you are. So if you're taking evidence, this is like a little crash course. So it's called 404B evidence, which is sort of

other crime evidence. So you have what's in the indictment, but a lot of times the prosecution says, but there's context that we want to give the jury to what happened here. And you can't put that evidence to show that somebody acted out of a propensity to commit crime, but you can show it for all sorts of reasons, like absence of mistake,

Here's a really good... Motive, intent. Right. So here's a good example of how it could, I think, come up.

If Donald Trump says, I was just following the advice of my counsel, like I'm a law abiding person and my lawyers tell me to do this. And that's what I do, because when lawyers tell me to do something, I stay within straight and narrow. So let's say that's what he wants to argue. You might want to say, but see Evan Corcoran, the lawyer who he lied to, allegedly to obstruct in the Mar-a-Lago case.

And that's where, if he would just say, "I follow the rule of law and I follow what lawyers tell me to do, and lawyers tell me about the elector scheme," you might want to go, "Hmm, let's see. Let me think of an example where that's not true."

The White House counsel, you directly asked him to obstruct justice, both by firing Mueller and then lying about it. So that would be a way to put it in, not for propensity, that's the improper reason, but to rebut Mueller.

the claim of I am a law abiding person who follows what my lawyers say. So it could play a role. There's no question that the prosecution team is going to be aware of all of that and is going to be thinking about all of the evidence outside of the four corners of the indictment in order to make their case.

Hi, my name is Ashi. I'm a 1L here. Thank you for putting this event on. I really appreciate your insight on this matter. My question pertains televising the trials. So considering that these trials are starting up soon, or they already have, should they be televised? Can they be televised? And if so, what is the impact that that would have on this country and in our democracy as a whole? Thank you.

When I start out and then I'll get your views. So the federal rules right now prohibit live broadcasting of trials. And so that's not something that Judge Chuck can or even Judge Cannon in Florida can say, oh, I'm just going to violate those federal rules and we're going to let cameras in the courtroom. So that would take a change to the rules, which the rules get approved by the U.S. Supreme Court. And so that would take sort of a big deal change that I don't particularly expect to happen.

Georgia rules, as we know, Georgia does allow for live broadcasting of trials and other criminal proceedings. And in fact, at one o'clock today, we can watch this motions hearing in front of the Georgia judge. So, you know, one advantage to the Georgia case going to trial is it would be televised. All of America and all of the world would get to see how our criminal justice system works, how defendants are afforded their rights to due process. They'd get to see the evidence.

presented against the former president, they'd get to make their own assessments of his culpability and whether he should really be president of the United States again. And that's all, I think, a good thing. And my general position on cameras in the courtroom is, I think, that for transparency and so that the American public can better understand how our criminal justice system operates, we should have criminal trials presented

generally be televised, with some exceptions for particularly vulnerable victims and witnesses, children, etc., things like that, some exceptions. As a former prosecutor, I'm very sensitive to that. But the one hesitation I have with this is

is unlike 99.9% of defendants who face trials, Mr. Trump will capitalize on a televised trial. He is already using the four indictments to raise money. The data show he's been pretty successful at raising money. Each time there's a new indictment or a new ruling, he makes

bank. Now he's spending a lot on or his PACs are spending a lot on legal counsel. But still, he is using and he's as much as said before the Georgia indictment, if there's a fourth indictment, you know, I'm running on that. And and so in a way, it's just feeding that because imagine every day of trial, him basically using social media to post a

how persecuted he is, how weaponized the Department of Justice is, or how weaponized the Georgia district attorney is. And so I do have some reluctance here to hand that to him, to give him the ability to raise money and campaign on what really should be just the execution of the rule of law in the United States. So we famously agree on everything. So we're still working on coming up with something to disagree on.

to make this a little bit more entertaining. There's no question it's not an unmitigated yes. I mean, there are some downsides to the televised, but I think it's, I think by far worth it. And I sort of view it as,

through my personal lens of thinking about the Mueller report versus the January 6th committee. And people take in their information differently. And it's no longer the case that... We read lots and say, we're like, oh, a 400-page dense, turgid... Some would say turgid report. Great. That's what I... Bring me a cocktail and let's go. Right. But the January 6th committee...

You did such amazing work and brought it to life and was so much more... They had a report, but they also, I won't say spoon-fed it, but they thought of different ways to make it accessible to people. And I just think with somebody who is dealing with spin all the time and just believe what I say...

I think that it is useful to have the January 6th committee hearings. I'm old enough to remember the Watergate hearings. I just think there's a group of people who that will still affect you and you're not going to affect everybody all the time. And I just feel like it's the right thing to do, even if it gets abused and even with some of the downsides as a result.

I think there's a reason, for instance, that certain people want to remove the Georgia case to federal court. And one of them is that it would prevent cameras from being in the courtroom. Certainly Mark Meadows does not want his trial to be televised. So I just want to...

thank everyone here for coming at Georgetown, the whole Georgetown community, everyone at Georgetown who helped set up here today from technical assistance, IT, events people, everyone from MSNBC for traveling down here from New York City to visit the capital of the United States of America, and my good friend and colleague Andrew for joining me here today.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Fernando Arruda, Harry Colhane, and Katherine Anderson are our audio engineers. Janmaris Perez is the associate producer. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the executive producer for MSNBC Audio.

is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series. I think my day job is now going to be usurped and done. That's it. Thanks, everyone.

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.