Jack Smith’s D.C. Indictment Decision: A Conversation with Judge Luttig 35:04

Hello, and welcome to another episode of Prosecuting Donald Trump. Well, it could be a very busy week as we await not only special counsel Jack Smith's decision on indicting the former president in the 2020 election probe, but we also are getting more indications of Fannie Willis becoming ready for her, quote, imminent, unquote, charges.

There's also a big question mark about exactly what's happening with the Florida case. We're going to talk about that briefly. But the main event today is something that we've had a few guests, and this guest is...

Unbelievable. I mean, just it's an amazing story. People really need to stay and listen to it. Mary, who do we have on? We have Judge Michael Ludig, a longtime federal judge on the Fourth Circuit, but also a fixture in the Reagan and Bush administrations. In his words, as you'll hear, somebody who's familiar with high politics, and he's going to tell us the story of how he

really raised the alarm bells and provided the legal justification for Vice President Pence to say, no, I do not have the authority to overturn the 2020 election. So please, please stay tuned for that. Yeah, and there's some good new

that I don't think have been reported before that he talks about. I want to make sure people understand he is somebody who politically you and I might disagree with. Many of our listeners might disagree on a political level. And it's a really good lesson for the fact that all of that is irrelevant to these issues involving the rule of law. And Nancy Pelosi said there are moments where the times call us and

And you will hear how that literally happened with him on January 4th. I also just want to note one thing that he said that I just took so to heart on a much more minor scale where he talked about

when he was asked to testify before the January 6th committee and talks about his reaction when they said, do you need a subpoena? And his view of what the role is of every American citizen. I'd heard the same thing from somebody who used to be the White House counsel saying, our job, especially as public officials, is to go and testify if called punitive.

period, the end. That's your obligation as a citizen and what you owe Congress, whatever you might think of individual people on committees. For us, Mary, it's a lot like when we show up in court and we might disagree a lot with a particular judge. It doesn't matter. It's the institution. Anyway, that's a minor part of his testimony, but it speaks volumes about who he is as a person. Anyway, that's going to be fantastic. And he'll join us in a bit, but let's maybe start

by talking about what's happening in Florida, because today,

There was supposed to be the arraignment of the new and third defendant in the documents case, Carlos de Oliveira. One of the things that it looks like happened is a repeat of what happened with Dauda, which is the local rules there require that you have a local attorney, somebody who's barred in that court. Now, there's permitted to practice in that court,

And lo and behold, he didn't have that person, so the thing couldn't go forward, meaning

delay, delay, delay. So that's not a great thing for Jack Smith because there isn't the arraignment, there isn't the attorneys there for the new defendant, and thus the issue of the trial date and whether it's going to change is not teed up for the court. And every day at this point is counting. Yeah, it's true. Although, as you and I have talked about

Mr. de Oliveira is not charged with mishandling classified documents, so I think there are some good arguments that his addition to this case really shouldn't delay things. He doesn't really need to have the same kind of access to classified documents and classified discovery. He definitely needs access to regular unclassified discovery, and that could still itself delay things, but that remains to be seen. Yeah, absolutely. He's in the same position as Walt and Ada. Those are much easier, simpler cases.

And it just wouldn't be unheard of to have Nauta and D'Oliveira, those cases being tried relatively quickly. It's a pretty simple scheme that's being charged. And let me just make one little note that I think is really interesting. Friday night,

Alvin Bragg, the Manhattan district attorney, said something that could be relevant to this issue. And what I think is an incredibly statesman-like statement that he made in a radio talk show where he was speaking, where he said, if the federal government needs to essentially use my date to

I'm not going to stand on ceremony, that I'm not going to be thinking about, well, I brought my case first. I'm going to be looking at what justice requires. So that's like a new element. And I have to tell you, I was really impressed because that's not...

what you would think just some political hack would say. Political hack might be thinking about, I want to go to trial first because I brought the case and I want that stat, etc. It's so refreshing to see somebody thinking about justice and clearly put that into the public arena to make sure people understood who he is as a person. The other thing significant about that is the

that the date currently set for the Manhattan trial is in March of 2024. We know that the date currently set for the Mar-a-Lago case is in May 2024. And now we have the possibility of another federal case, the Jack Smith expected indictment for January 6th and the efforts to overturn the election. That needs to fit in somewhere. And now we know Fannie Willis has said just in the last day or two that

that she is ready to go and will be making an announcement by September 1st. So that's the potential for four trials to get scheduled.

ideally before the election. And so it is entirely possible that March date that is Alvin Bragg's date will yield to the January 6th case because already the Mar-a-Lago case is set past that. And as you just indicated with the addition of a new defendant, Mr. D'Oliveira, and also the addition of new charges, there's certainly the possibility that trial will get pushed forward.

a little bit later as well. So there is a lot of court scheduling to be done yet in these next, what are we at now, 16 months or something. Yep, absolutely. And I thought the Fannie Willis statement was really interesting because it did push back the timeline a little bit. In other words, she said by September 1. And so that's just a slightly longer timeline.

I think then she had emphasized the end, isn't that what it said? Yeah, I think she had before suggested it would be somewhere between whatever date in July and September, but we all thought it would be these first few weeks of August because she called the grand jury in for those dates and she sent the letter to the court about not having other matters and having her people work from home. So I think that's where we all got in our head that it's going to be these first few

couple of weeks of August. And I know you and I have thought, well, maybe one reason that she is saying now by September 1st is that the Georgia courts have scheduled a hearing on Mr. Trump's motion to disqualify Fannie Willis from being a prosecutor in any coming case and also to basically throw out the special grand jury's report. And so,

That hearing is scheduled for August 10th. That is just one of several challenges Trump has brought to the special grand jury in Georgia. Today, we had in one of the other cases, the judge throw out the challenge. But this August 10th hearing is in a separate case, and that will still be going forward. And by the way, no one should worry. I mean, this was something that was given to an independent judge because there was concern that

No judge sitting in the locale where she is should decide it so that there's no appearance of impropriety. But see, the Supreme Court of the United States, which doesn't seem to have the same ethics rules or any ethics rules, I couldn't help myself, Mary. But there will be that decision. I can see her saying, you know what, I don't want this sort of pending legal challenge while I'm deciding this.

And so she'll go forward as soon as that's done. I think this is more of a procedural issue. People shouldn't be worried about it. Again, I'm in the prognostication business. So I think Fannie Willis looks like she's going to go fourth and Jack will go third. But you know what? Big picture doesn't really matter which order it is. I think in short order, we're going to see two January 6th cases. More prosecuting Donald Trump. Jack Smith's D.C. indictment decision. A conversation with Judge Ludig in just a moment.

MSNBC's Lawrence O'Donnell. I have an obligation to find a way of telling this story that is fresh, that has angles that haven't been used in the course of the day, to bring my experience working in the Senate, working in journalism, to try to make sense of what has happened and help you make sense of what it means to you. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC.

I'm so delighted to introduce all of our listeners to Judge Michael Ludig. Judge Ludig was on the federal bench for the Fourth Circuit Federal Court of Appeals for 15 years. He was appointed by the first President Bush. He also served in the Reagan administration in the White House Counsel's Office and in the Office of Legal Counsel as the Assistant Attorney General during the Bush administration.

And he's been very, very vocal in speaking out against what happened with respect to the efforts to overturn the 2020 election and the attack on the Capitol on January 6th. I think most Americans became familiar with him when they heard him testify before the House Select Committee investigating January 6th. Very, very powerful testimony on live television to millions and millions of people. This is a person who...

has actually not just spoken out, but also really put his reputation and intellect in support of the rule of law at a very, very important time for this country.

When I think about what happened during the Trump administration, it's a result of people like Judge Ludig, who stood up at the right time that separated us from...

So I just could not be more honored by the fact that the judges here are speaking with us. Well, thank you, Mary. And thank you, Andrew, for that very gracious introduction. It's really my pleasure to be with the two of you here today. So I thought maybe we'd start just where Andrew and I had left off in our discussion at the top of this episode with the news that Fannie Willis has said, we're ready to go. We'll have an announcement by September 1st.

As a former judge, I mean, you were on the appellate court as opposed to the trial court, but even still had to deal with sometimes things that came up as emergencies, things that created timing issues. How do you think the judge, assuming that there is going to be an indictment imminently coming by Jack Smith, an indictment that addresses January 6th and the scheme to overturn the 2020 election,

How should the federal judge be thinking about the timing of setting a trial in that case? You know, before the election? Is that something that should be factoring into the judge's consideration? And how should the judge think about it when there are two other pending cases and looking like Fannie Willis will be bringing a state case in Georgia? Okay.

Mary, I don't think any of the possible judges here will concern themselves one whit with the politics of this. And of course, this is high politics. But the judiciary just doesn't think about the politics, even though it's aware of the politics. I have been convinced long before anyone else even suggested it that at least the federal courts are

would have this trial of the former president with respect to either or both the classified documents case and the January 6th case before the election. The courts have almost exclusive authority over that timing question. And I believe, of course, I don't know, that the courts will try to hold evidence

trials for the former president before the election. Judge, do you think that, based on your experience, that that can be done while also

honoring the due process rights of any defendant who's charged, whether it's Donald Trump or Walt Nata or anyone else? In other words, that it can be done consistent with their ability to prepare an adequate defense? I do, Andrew. That's obviously the concern and the issue. But the way I think of it is that many, if not most, of the defenses that the former president would in both trials—

have been vetted and decided in the federal courts long before now. Most of them in connection with the January 6th committee subpoenas. And of course, you both know this, the big defenses of executive privilege, for instance, they've been decided now by the federal courts. Of course, his lawyers will raise those again, but they would not hold up the federal courts long, if at all.

Judge, I know that you've spoken about this in the past, but I thought it'd be useful for people who haven't heard either your congressional testimony or some of the interviews you gave to maybe bring us back to your actual active involvement in what I view as a critical juncture that was facing the vice president of the United States prior to the January 6th insurrection. I was wondering if you could

Walk us through how you got involved. How did you get the call? Had you had a relationship with the vice president that led you to giving advice at his request with respect to what powers he had, what powers he did not have? Andrew, I got the first of two calls on the night of January 4th.

That night, my wife and I were out at our home in Colorado. We were having dinner. And so it was evening for sure on the East Coast. And I got a call from my longtime and dear friend, Richard Cullen. Richard was at the time and had been for several years outside counsel to Vice President Pence. He was very close to the vice president.

So that night, the phone rang and Richard and I are very close. And we had been talking literally every day for the past two years. So the fact that he called was no moment. But I picked up the phone and he said, hey, Judge, do you know John Eastman? I said, yes. John clerked for me about 20 or 25 years ago.

And he said, so what do you think of him? And I said, well, John is a constitutional scholar of the highest order. He's very, very smart. He graduated top of his class from the University of Chicago Law School, and is just a wonderful human being. Why do you ask? And Richard said, you don't know, do you? And I said, no, I have no idea. And he says, John has advised the

president of the United States and the vice president of the United States this afternoon in the Oval Office that the vice president could effectively overturn the election day after tomorrow. And I said, well, you can tell the vice president that I said he has no such authority or power whatsoever. And Richard said, I've told him that he knows that.

And I said, well, okay, there's nothing else I can do, but I'll be glad to help out if there's any way that I can. And we hung up. At that, my wife said something like, oh my God, what was that?

I told her, and she said, you have to stop this. Judge Ludwig, were you shocked when you heard this from your good friend? Mary, no, I wasn't shocked. You know, I've had the great privilege to live in this world of high politics my entire life, beginning so long ago in the Gerald Ford White House in 1976. So

Nothing shocks me or surprises me anymore. But to Andrew's suggestion, I understood the gravity of the moment without any question. So to continue, my wife of 42 years, just the rest of the night, pled with me to do something and to stop this, asking rhetorically, don't you understand what this will mean for America? And I said, I do, hon, but there's nothing I can do. I have no

part, no role. And there's just nothing I can do. And we went to bed that night with her pleading with me to stop this. I get up very early in the mornings around 4.30. So I was up at 4.30 that next morning, January 5th, just having my coffee. And Richard called again. He said, we have to do something immediately.

And I said, well, what do you mean, Richard? And he said, well, I don't really know. And very seriously, I said to him, well, if you don't know what you're talking about, how am I supposed to know what you're talking about? And he said, we have to get your voice out across the country immediately.

I said, Richard, I'm out here at our summer home and I'm retired. I don't have a job anymore. I don't have a platform. I don't even have a box of stationery. I said, and no one cares what I think about anything at all anymore. And he said, you have to do something immediately. And I said, well, Richard, I just don't even know what you're talking about. And he said, I'll call you back in five minutes.

And I said, okay. So we hung up and I continued drinking my cup of coffee, kind of thinking about things. And he called back in five minutes and said, have you thought of anything yet?

And I said, well, no. And he says, you do understand the importance of this moment, don't you? And I said, yes. He said, I'll call you back in five more minutes. So he was really leaving it up to you to decide the next course of action. Well, yes, Mary, but he didn't know. Right. Nobody knew. And no one knew. So he calls me back in five more minutes and he said, have you thought of anything? And I said, well...

Well, I just had one thought, Richard. I said, I just opened a Twitter account a couple of weeks ago, but I don't know how to tweet. And he said, perfect. This is absolutely perfect. Do it right now. So I go downstairs to my office there in Colorado. And by this time, I had typed out on my iPhone what I would say. In fact, the exact words that I did say.

But I had no earthly idea how to transpose that into a tweet. It was the technical problem. So I called my son, who is a tech person, and I said, I have to tweet something long, very important right now. Tell me how to do it. And just like all other millennials, he said, Dad, I don't have time for this. You and Mom, I've been telling you, you're going to have to learn this sooner or later because I'm busy.

And I said something like, you either tell me how to do this right now or I'll cut you out of the will, you know. And he said, open your email. I just sent you the Twitter instructions for a thread or whatever. And so I hung up with him, opened my email. And sure enough, it was the official Twitter instructions for a thread. And then the short of the long story is that I just worked my way through all of that by

First, copying my iPhone message into a Word document because that's the only thing I knew how to do.

and then separated the entire thing into whatever, 140 character tweets. Characters. And then eventually put those into Twitter and reread them very carefully. I was not nervous, but Andrew, I mean, I knew that I was doing something significant, but I really didn't know what it was. But I was going to give it everything I had is the point. And finally, I tweeted it and it went.

not knowing literally whether anyone in the world would ever see it. And Richard called back in about five minutes, and he said, your tweet's on the front page of the New York Times. And that was just a little bit too much for me. And I said, Richard, just leave me alone. And I hung up. And your conclusion there was pretty clear, wasn't it? Yeah, it was, Mary. I should have said that I had been following this for...

probably a couple months or at least six to seven weeks, beginning when others began to say that the former president would never leave the White House. My wife came to me then and said, he's not going to leave.

And I said, I dismissed that and said, well, that's just not even an option. You know, if he loses the election and he did, then he's got to leave. That's what I said to her every day until about two weeks before January 6th. And then she came to me and said, he's not leaving. You have to do something.

And I said, you may be right, but I had begun to think about in the deepest ways that I'm capable of and actually researching literally all of the issues raised by January 6th. So when January 5th came for me to tweet what I did, I had my arms around every single issue. And

Do you know that this was something that turned out to be pretty important to the vice president, your legal opinion that he had no authority to reject the electoral college ballots from the swing states or send back the electoral college ballots to those states in some sort of effort to have the state legislatures propose different ballots, the ballots for President Trump? I didn't know that. As you could tell from the story, I didn't know anything. I...

of course, assumed that it was important to him for some reason and in some way. But I literally didn't know that he had ever seen it or would have ever seen it until January 6th

when he left the White House for the Capitol and released his letter to the nation saying that he would not overturn the election as the former president had demanded that he do. And then in that letter, he cited me and a Supreme Court justice of early years in support of his decision.

As to that, I would have never known that either. But as soon as he released the letter, I got two emails from two different of my former clerks. Each of them said, you know, very curtly and sarcastically, Judge, what are you doing? And I wrote them each separately back and said, nothing. I'm just out here in Colorado with Elizabeth.

And they both wrote back and said, don't give us that. What are you doing? And I said, guys, I don't even know what you're talking about. And they said, the vice president's on his way to the Capitol, and he just released his letter, and he cited you. That was the first I had any knowledge of anything, frankly. On, I believe, January 5th, the former president issued a statement where he said that

towards the effect that the vice president agrees with him that the vice president has authority to essentially reject the votes, the will of the people. At the time, were you aware of the former president's statement about the vice president and his views?

I was, Andrew. Beginning January 5th, as you probably know, I literally spent seven days a week on nothing but all of this, every minute detail of it. But I don't want to get into much of the discussion, but I saw that statement by the former president almost immediately upon his issuance of the statement. I called someone up.

And said, I want to know if this is true. And I want the confirmation that it's not true immediately. And I got that confirmation back within five minutes. And we should probably just note, Judge, that one of the reasons for your being careful is that if there is a January 6th

indictment, part of at least what we're discussing may become relevant to a jury. So we're not going to press you on certain details. As the public knows now, I was interviewed at length by the January 6th committee prior to the hearings and, of course, told them everything I knew. I was asked right away whether I would refuse to testify to the January 6th committee and would I require a subpoena. And

I mean, I was shocked. I said, of course not. I said, there is no American citizen who should ever resist a congressional subpoena.

to testify as to something that that person has knowledge of. It was the farthest thing from my mind. Of course, everyone else was defying Congress and refusing to honor the subpoena and actually taking it to court. But

I just wanted to make that point because that's the last thing in this world that I would ever, ever do under any circumstances, frankly, even if I were the target. I appreciate that recognition, too, of just the significance of that investigation and people's responsibility to

to do their civic duty when they're asked, especially when it's something as critical as that investigation. I think that's a great segue really to where we are now in this moment. Jack Smith has sent a target letter to Donald Trump in his investigation of the efforts to overturn the 2020 election. I think the expectation of most of the public is that, and of Mr. Trump, is that he will be indicted.

And you've said publicly that this likely coming indictment of Donald Trump for his efforts to overturn the 2020 election and also the attack on the Capitol on January 6th involved the gravest offenses against the United States that a president could commit with the possible exception of treason.

And I just wondered if you could talk a little bit more about that and why you think this impending case against Mr. Trump is so significant. I mean, certainly it's something that Andrew and I talk about all the time, and we couldn't agree with you more. But I think our listeners would really benefit from hearing your thinking on that. I think I would start in this way. This indictment for January 6th, if it does come, would never have come except

except for the fact that the former president wanted to be indicted for his role on January 6th. As hard as that is for the rest of us to believe, that's a fact. We know it for this reason. On any given day, literally any given day since January 6th, he could have avoided prosecution for this. He's dared and taunted and provoked.

first the Department of Justice, and then after Jack Smith was appointed special counsel, Jack Smith, to indict him. And of course, to this day, he maintains that he won the election in 2020 and that it was stolen from him by, I don't know who, but

It's the nation that he wants to lead again. And I guess specifically the Democrats and now President Biden. But he obviously hasn't specified that, but that's what he's saying. So what he did on January 6th in an attempt to overturn a presidential election that he had lost and his role in connection with the attack on the United States Capitol was

in order to obstruct and prevent the joint session from counting the votes for the presidency. They are the gravest possible offenses that I can imagine that an incumbent president could commit against the United States. Treason is constitutionally defined in such a way that would not include these offenses. But the essence of treason is the betrayal of the nation.

And these offenses partake of a betrayal of the United States of America. That's what convinces me that these are the gravest offenses that a sitting president could commit. He did all of this in order to remain in power.

when the American people had voted against him and for a successor in Joe Biden. It's just hard to imagine anything more. If he is indicted, the tragedy of that day will be that he chose to inflict what will be an ordeal of historic proportions on the nation. It will be a spectacle.

unlike America's ever seen before, and therefore unlike anything that the rest of the world has ever seen, where an American president criminally indicted for the first time in American history is literally on trial, if not actually in trial,

during his campaign for the presidency in 2024. That promises to scar and stain America for the rest of history, and it will scar and stain America for the rest of history in the eyes of the world. So that's

tragic. I cannot imagine anyone putting it more eloquently, Judge Ludig. And I hope that all of our listeners and all of America are hearing what you're saying, because we're at a really challenging time. And this next year and a half is really going to test our democracy and the rule of law. Can't thank you enough for joining us here today. Judge, I also want to just

Thank you so much for your service. I know that you thought you were just doing what was right and what was required, but it is because of people like you that we avoided the very worst. And everything that you talked about in terms of what Mr. Trump was trying to accomplish did not come to fruition because of the backbone and integrity of

of people like you and I'll add your wife giving you very sage advice. I'd love to meet Elizabeth. I think I and everyone owes you a true debt for having that amount of courage and integrity at a defining moment. Well, thank you both very much. It's just a real privilege for me to be on with you today. It's our privilege.

Thanks so much for listening. We'll be back next week with much more, and maybe back this week with much more. 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.

The senior producer for this show is Alicia Conlight. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. Jan Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.