The Superseding Indictment 34:51

Hello and welcome to an emergency episode of Prosecuting Donald Trump. I'm Andrew Weissman. I'm here with Mary McCord. Hi, Andrew. We're back this week, the same week as we recorded a regular episode, and we expected to be back. We expected there'd be breaking news, and there was, but it wasn't the breaking news we thought it would be. Exactly. And this is so great to be able to talk to you because we were on

air together yesterday with Nicole Wallace, but we actually haven't had a chance to talk. So there was big news yesterday, but as you mentioned, Mary, it was in Florida where there is a superseding indictment and there are new charges with respect to Donald Trump trying to delete security footage to obstruct

a federal investigation this would make not one but two charges related to obstruction of justice there and there's also a new defendant so that's one thing that happened in florida we're also going to talk about a motion that was filed in florida which is

Unbelievable. I'm pretty sure we're going to agree on that. But then there's also some new stuff that we're going to talk about in terms of what happened in D.C. And there's even some developments in Georgia. So those are the three locations that we're going to focus on. Mary, why don't we start with the surprise news when we're all waiting for an announcement of an indictment and there was an announcement of an indictment, but

It wasn't in D.C. It was in Florida. So Jack is keeping us guessing. And by the way, I just have to make a point of, you know, I was on special counsel Mueller's team. I've been on the other side of this where there's just like rampant speculation. And you know what? It's nicer to be on the inside.

when you knew what was happening. Well, it's funny because I was actually thinking this morning while I was out on a run, I bet that some of the prosecutors just kind of got a little chuckle out of the fact that they really surprised everybody. I know that wasn't their intent. They didn't do it purposely to surprise the media. But I bet a few of them kind of had a little chuckle about that just because I think all the media were surrounding the D.C. courthouse all day long and the action was

down in Florida. Yeah. You know, I have to say when I was at the special counsel mall, that was a real point of pride that how closed down we were and how much we kept stuff within ourselves until it was ready to be announced. And so, you know, they probably are feeling that as well, that with all of the

leaks and it's not even leaks. It's like defense lawyers and witnesses are entitled to talk about what happened and what's happening with them. And if they're called to the grand jury, all of that's fair game. And that's how we know a lot of this stuff. So it must've been really nice for them to see like, you know what, we have a very tight ship.

And so that sense, it's really similar to the Mueller investigation. But let's talk about the new charges, the new defendant. Mary, just tell me first, what did you think about the charges, the timing of it? What was your initial impressions as a prosecutor? So one major reaction, and this is sort of

similar to my reaction to the first indictment, but now it's even amped up, is this is a classic, you know, it's the cover-up, man. It's the cover-up, right? Like, the mishandling of classified documents is really extreme in this case. There's so many, and there were so many efforts to have them returned that Mr. Trump just

not only ignored, but really tried to obstruct. And we've talked before about if things had gone to Mar-a-Lago in the chaos of moving out of the White House and he had returned them promptly, I don't think we'd ever see charges. But now we have not only serious mishandling charges and obstruction, but

This cover-up has just gotten deeper and deeper and deeper because now we know there was also – and it's really striking when you read the timeline in the new pieces of the indictment, right? So starting on June 22nd, DOJ emails a draft order.

to Trump's business organization, letting them know they're going to be looking for the security footage. The next day, we can assume Trump learned about that sometime within the first 24 hours. And of course, within 24 hours, he calls de Oliveira another A,

another person who started as a valet, apparently, and then rose up to become a property manager at Mar-a-Lago. And now the new defendant. And now the new defendant, absolutely. They talk for about 24 minutes. The next day, DOJ actually sends that final grand jury subpoena seeking the security surveillance video. And that same day, DOJ,

Walt Nada, who's been up with Trump every day, appears that maybe they're up in Bedminster at the time. It's not entirely clear from the indictment, but they're not in Mar-a-Lago. And apparently Nada was supposed to travel with Trump to Illinois and instead abruptly changes his travel plans.

decides to go to Palm Beach instead, makes up some story about why he's going there. But when he does go there that same day on June 24th, just two days after they get noticed that the government wants this surveillance video, Nada is meeting with de Oliveira and basically trying to get de Oliveira to help him

ensure that these surveillance videos can be destroyed. And we can get into more detail about that because part of the reason I think we know this is because it appears that another Trump employee, Usel Tavares, who is a director of IT at Mar-a-Lago, it appears that he refused to play. He refused to destroy. Yeah. And he seems to be what's referred to as employee four. And just note to self, when somebody is not charged in any way, these sort of

monikers are used of employee one, employee two, or attorney one, attorney two. So Tavares really appears to be employee four. And, you know, clearly when he is being asked to do this, basically says, like, I don't think I have the rights to delete surveillance video and you need to go to somebody else. And he's like, I didn't sign up for this. That's right.

And so I just think this is such a remarkable example. I mean, already the first indictment with the moving of the boxes and the communications between Trump and his attorneys about can't we just kind of make this all go away was pretty striking. Right. Trump says, can't you do what Hillary Clinton's lawyers did for her and just get rid of them for me? By the way, that's not what happened, but let's assume it is. I mean, he's already charged with obstruction. And now this is like, mm.

more obstruction. And it's the same kind of just unbelievable that we're talking about a former president who's basically, I want you to go down there and get rid of the surveillance video. And by the way, that surveillance video is

is extant. I mean, they have it and it's going to be really good evidence. And you and I know because we've been trial lawyers that the government's going to turn to the jury and say, see that really damning surveillance video? There's something else you need to know. They didn't want you to see it. That's right. That's why they were trying to get rid of it.

And we know that's the video that literally shows how many boxes got taken out of the storage room and how many fewer boxes got brought back into the storage room. I mean, the surveillance video is extremely damning. And it's clear Trump knew that because as soon as he gets asked for it, right after all these other things are starting, you know, the subpoena for documents has happened, etc. That's when he tries to get rid of it. So.

This is another one of the cases, and this does happen in cases involving elected officials sometimes, is that the cover-up, I don't want to say is worse than the crime here because we're talking about mishandling of national defense information, the government's most closely held secrets. So I do not want to belittle that at all, but it could have been handled so much differently and we would not be where we are now.

And that's just one piece. Yeah. Yeah. And talk about ways to differentiate what happened here from what we know about Mike Pence or Joe Biden. I mean, where there's zero evidence.

of obstruction. In fact, there's evidence of cooperation and none of this, whereas this is now, it's like double obstruction. And this reminds me so much of, like you always talk about your last case, but Paul Manafort was charged with obstruction after we brought the initial indictment because instead of doing this with surveillance tapes, he did it with witnesses. Yeah.

And the witnesses kept the text messages and turned them over to us. I thought that was one thing that was really interesting. When I was doing that case, we had WhatsApp messages. Here, the indictment refers to Signal.

messages. And Signal, for those who don't know, is a chat function that a lot of people use because they think that it's something that the government cannot get access to. And one way, obviously, that you could get access to it is if somebody who is cooperating with the government has Signal messages on their phone, they can take a screenshot, they could give that

chat to the government. So that's one way in which the government can get that. But it's kind of always manna from heaven when you have the people who you're focusing on thinking that they're using a secure method of speaking and that they can be open about what's going on. And in fact, the government can get it one way or the other because

because they tend to be more open about what they're doing. And they had that here. So I thought that was one little interesting thing. And I thought it was interesting that they pointed that out in the indictment and actually referenced that as a signal chat group. So I have a kind of funny story about this. You know, when I left the government in May of 2017, this was just a few months after the Trump administration had, you know, taken over and Jeff Sessions had,

come to be the Attorney General at the Department of Justice. And of course, I left my position, had been Acting Assistant Attorney General for National Security. And so I had so many journalists and reporters who wanted to talk to me about the Russia investigation. And I was not about to reveal anything that was confidential and certainly not anything that was classified. And I knew that Jeff Sessions would come after me in a nanosecond if there was any

suggestion that I was a leaker. And so I would have a journalist say,

oh, no, I'm not going to ask you for Classify, but if you give me your Signal account, then we can communicate by Signal. I'm like, I am not downloading Signal on my phone at all because that's just a signal to the government that I'm trying to communicate without anybody knowing about it. It wasn't until last year, after I'd been out of the government for five years, that I finally downloaded Signal on my phone. So anyway, that's my own story about

Totally. No, I know. It's sort of funny that it's like, excuse me, I will know that I did it. I don't intend to, A, commit a crime and B, lie about it, whether I talk on Signal or not. Well, that's not what happened here. Here they were talking on Signal and the government got it.

I wanted to focus on a different part of the charges because I thought there was something really interesting in addition to these obstruction charges. And those obstruction charges are brought against the new government.

And currently, while under indictment. Exactly. And the obstruction of charges, obviously, against Donald Trump, for whom they did all the actions, as they say, the boss wanted the servers gone. Right.

So all three of them are charged with this. But there's an additional charge, count 32,

that is brought against Donald Trump with respect to one more document that is alleged to have been illegally retained by the former president. And so some of you might be thinking, well, why did they do that? They already had 31. Why did they add this 32nd one? I mean, Mary, you've been saying, you know, they have a lot and they can always slim down the indictment. So this is expanding it by one instead of why. I thought this was interesting in so many ways. This document is,

is the document that was previously described in the indictment, but not charged. This is the document that was described as the document that Donald Trump was sort of flaunting to third parties in Bedminster in New Jersey, not in Florida.

But he's on tape, and there's a long section of the tape recording, the transcript of it, that's in the former indictment and is still in the current indictment. But it was described but not charged. And you and I talked about how that poses at least some evidentiary issues because it's not directly charged, so it gives—

Alien canon, some possibility of keeping it out of the trial under what's called Rule 404 or 403. And by keeping it out, what we're talking about here is actually that tape, right? That audio tape of the conversation, which is really so damning because you hear Mr. Trump himself talking about this classified document to people who are writing an autobiography for Mark Meadows. And he...

And he says it's secret. He's on tape. So look, this is the defendant confessing on tape. I mean, don't get any better than this. The one thing that was missing was that it wasn't charged. It is relevant evidence. And we didn't know if the document really existed. And of course, Mr. Trump was out there saying, oh, it was just a sheaf of papers. I had lots of papers. I never had any document. Exactly. So Donald Trump is overreacting.

out there saying, "I was blustering. This was not a real document." He basically, I mean, so fancy way of saying he was lying. And that was his defense.

Well, there were clues in the old indictment that they kept on talking about the classified document. There were clues that they knew it. But now it's charged and it's absolutely clear that they say they have the document. The indictment makes it clear that the document was at Mar-a-Lago at some point and was returned by Donald Trump to the National Archives. The reason that is important is

I'd been talking and writing about this specific issue and the fact that something was in New Jersey had these venue issues because could you bring it in Florida because the Constitution requires that you bring a charge where the crime happened. And

There was this issue about, did the government know the document existed and could they show that it was in Florida so that they had venue to bring it in this case? Well, now it's clear that they can say that this document, it may have been in Bedminster at some point, but they clearly are saying that it was in Florida. So it's now a direct charge and this tape recording is a direct piece of evidence. There's no way for a judge to keep this tape out

And you now have the defendant on tape confessing with respect to this document. And they make it really clear that this document was returned to the National Archives. And we know from other evidence that that happened by going from Florida to the National Archives in D.C. So incredibly damning piece of evidence. Final point on this. We may disagree on this, but I took...

from the fact that this got added in, this piece, that Jack Smith is really concerned about the clock and timing. And the reason I say that is if you're not concerned about the clock and timing, you might have waited until you completely nailed down all of this stuff

with respect to Count 32, this document. You might have said, okay, let's make sure we know which document it is. Let's make sure we can prove that it is in this location. And I think that he probably, I mean, speculating, said, you know what? We're going to not let the perfect be the enemy of the good. We have a really good case.

And we're allowed to continue to investigate the same way we're allowed to continue to investigate the obstruction. And it's really important to get this case going. Now, obviously, by superseding, it could delay the case. There's no question that's the downside. But to me, it suggested...

There obviously had been a decision made that let's go forward. We'll continue investigating and nailing this issue down of can we identify the document? Can we identify the location of the document rather than wait? Because under normal circumstances... You wait till you had everything. Why not wait? Yeah, that's right. And...

Do you agree? I do agree. And what we're talking about here is, right, the first indictment came out in June. And here we are at the very end of July with the superseding indictment and these charges with more investigation.

Maybe could have come in the first indictment. Now, that's where I think this charge, count 32, related to the document that was shown to the authors writing this autobiography is a different type of charge. Well, obviously, it's a different type of charge from the obstruction charges, but I think I put it in a different bucket because it could be –

that the D'Oliveira stuff, the obstruction and efforts to destroy the surveillance tape, it could be that they learned that

in part because after bringing the first indictment, it's quite possible that witnesses came forward, including potentially Mr. Tavares, Trump employee four, right? And so that was like brand new. This one is one, maybe if they'd been able to get through every single thing, they could have figured out in time for the first indictment. But like you said, they didn't have it that

the time, if they didn't get started, because look at what's already happened, right? Even though they've been moving quickly, as quickly as they can in front of Judge Cannon, they still are fairly early on in the discovery. The government has tried. They're like, we're providing all this discovery. We're ready to provide all the classified, but it's taken some time for the attorney's

to get their interim security clearances. And then they're still arguing about a protective order, which is the next thing for us to talk about. And that classified information can't be provided until that protective order has been signed. More prosecuting Donald Trump, the superseding indictment 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. So the other thing that happened yesterday was a filing with respect to that protective orders. I described this as chutzpah with a capital C. This is like running, flying, jumping, leaping gall.

Donald Trump has taken the following position with respect to how he should be able to access the discovery documents that are classified. He said, I should be able to see classified documents not in a SCIF, a secured facility that's made to see classified documents. I should be able to see classified documents in an unsecured location, and that would be Mar-a-Lago and San Francisco.

Bedminster. That's the crime. The crime is that he was seeing those documents and retaining them at Mar-a-Lago and Bedminster. So it is

Unbelievable. I mean, I'd love to have been a fly on the wall when the government got Trump's position on this because they had to be like, you've got to be friggin kidding me. So anyway, that is now before Judge Cannon that he wants to be able to discuss this. I want to raise something on that, though, because.

If you parse closely the language of this, the way this came to the attention of the court is not because Trump filed something. It's because the government came back to the court, renewed its motion for protective order, said,

Judge Cannon, a few weeks ago, you told us to try to resolve our differences about the protective order. We've resolved them all down to two remaining things we disagree on. One, which we haven't discussed yet, is that defendant Notta wants to be able to see classified information as opposed to just have his cleared counsel see it. We can come back to that.

But the point you're talking about with the way the government says is defendant Trump requests that he be permitted to discuss classified information with his counsel outside SCIFS, that being a sensitive compartmented information facility. So.

It's not entirely clear to me he wants to see documents outside the SCIF versus discuss them. Do you think there's a, am I dancing on the head of a pin? No, no, no. I think you're totally right. And I think that's like a careful read. But don't you agree that still is the same issue? When we were in government, if I got a

a classified document, obviously I'd have to be in a skiff. But if I then wanted to discuss the content of that document with you, Mary, I couldn't just pick up the phone and be like, let's just talk. I mean, a lot of times you would talk around it, but you couldn't actually talk directly about it, say anything that was in exactly so that

if anyone was listening in, they had no idea. I mean, you ended up sounding a little bit like a mobster where you'd say, hey, Mary, did you look at the document, the thing I sent you? You know, no, no, not that thing. The other thing I sent you before the other. Like, that's what it sounds like.

Oh, I had an entire 15-minute conversation with an extremely high-level national security official and realized only afterwards I was talking about something completely different than she was talking about because we were talking around it. So we had to then get into a skiff. But the reason I raise this is because

you know, listeners may be like, well, isn't there a big difference between talking about it and having the document there? And, you know, you just gave the example of a phone conversation, and we all know phones are not particularly secure. You know, that's transmissions over wires or wireless that could be intercepted. But suppose we're just talking about talking about it in Trump's office at Mar-a-Lago or his office at

Bedminster. You know, I could see people saying, you know, why is that so bad if they're just describing it to him? Well, let's remember, these are not secure, sensitive, compartmented information facilities. And what a SCIF is, is a place where national security contractors have created essentially a safe that you work inside of that is impenetrable by other types of surveillance. Now, Mar-a-Lago is not that. Right.

Exactly. And by the way, in a SCIF, one of the things you cannot do is you can't bring in any electronic devices like phones. So Mar-a-Lago obviously is a target of foreign adversaries. We know that people have been charged with respect to that. And one of the things you don't want when you are talking about classified information is the ability to

be able to overhear that phones are not just insecure because when you're talking on them, but the concern is that they're essentially can become a device to inform

intercept what's happening around that person. So that no electronic devices are allowed inside a SCIF for that reason. So anyway, that's a really good point, but I think it doesn't change the outrageousness. Oh, I agree. I agree. Yeah. So that'll be really interesting. Maybe this is Canon 2.0. I don't see Canon 2.0 to the extent there really is a Canon 2.0. I don't really see her granting that request from the former president.

So, D.C., D.C., the place where we're all sitting around wondering when's the indictment going to come out. So the two things that we learned yesterday is, one, that the grand jury sat for a little over seven hours, which is a long day. Mary, I think you noted when we were on air that they were actually—

getting there before nine o'clock and were seen in the cafeteria. So that's a prompt start. And they were there until about 4.30. Again, it's a very long day. So that, of course, led to rampant speculation that they were voting an indictment or, as appears more likely,

to the point that the government may have been sort of teeing everything up in terms of summing up, presenting the facts, the law, a proposed charge, et cetera, but not actually having them vote. Giving basically its closing argument, right? Giving its closing argument and its instructions because a grand jury gets instructed just like a jury does, right? About the standard they have to apply and how they weigh the facts and evidence and determine whether it meets the

all the elements of the offenses the government wants to charge, at least by probable cause. And that's the big difference, right? Grand jury is probable cause. A jury after a trial, their standard is beyond a reasonable doubt.

Yeah. So they sort of came and went, and it seems extremely unlikely that they voted on anything, although it's conceivable, but I don't think likely. The other is that we learned that two of Donald Trump's lawyers, Todd Blanch and his newest lawyer, John Lauro, who, by the way, former EDNY, Eastern District of New York, so...

My coterie of former colleagues is growing, same way, Mary, a lot of the former D.C. folks. They met with Jack Smith and by all accounts, including from the former president, said there was a meeting. It was cordial, no decision. Although when you say no decision, the reporting was that the Trump attorneys were told to expect an indictment, right? Right.

Yeah, so it's interesting that MSNBC, NBC folks had that and then Donald Trump sort of denied that and said there was no discussion. So there was sort of a little back and forth. It's one of those things where the truth could kind of be everyone's kind of right. I mean...

in terms of exactly how it got worded. So in any event, I would just been sort of waiting for news about that meeting because it's just so commonplace for the government to give that opportunity to the defense and for defense lawyers to take that opportunity. In fact, I think we talked about that earlier this week.

I think that's right. So it happened. The one other thing that could happen now is what happened in the Mar-a-Lago case, which is an appeal of that decision. In other words, the defense lawyers can go to main justice and say, could you appeal this? It's a very narrow appeal.

kind of appeal when you're dealing with special counsel rules because essentially the department of justice would be asked has jack smith so abused his discretion under the special counsel rules that you should say no to some or all of this the department of justice is not approving of

If it says no, they didn't abuse, that is not the department approving the indictment. That is saying that all we did is we found that there was not an abuse of discretion. And so that is what happened in the Amaro Lago case. If there is that appeal, I'm pretty sure that's what's going to happen again. It just seems to...

unfathomable that something's going to be raised that they didn't know about by the defense lawyers to the prosecutors. So that's one extra little piece. It can happen in very, very short order. There's no way that the department's going to let that linger. And if I had to guess, I would say that the work yesterday with the grand jury was really teeing up the case for

the grand jury to vote. You know, I expect, although, gosh, you know, every time I speculate, I wish I hadn't, but I expect that probably it's one more time of them coming in to do that vote and then to walk down the hallway to a magistrate judge to present an indictment. The only other possibility is if they have some questions that were unanswered, potentially would want to hear from another witness. But honestly, I really feel like that would have happened already.

So if I were a betting and I should never be a betting person and I won't actually bet, I would say they're going to come in one more time and then we're going to hear something.

I don't know. Do you think so? So you've been I've dragged you into the world of predictions. By the way, I thought it was going to be this week. So I was wrong. But I agree. I also think another data point is that the Granger's did not come in on Tuesday. You know, they said Tuesdays and Thursdays. And I think if there had been some issue and they wanted more facts or they wanted a witness, I think that they would not have had a day off. They would have sat both days. And this is an important case that they

booked that time and understand those are times they have to be available. So definitely stay tuned because a lot could be happening in short order. And then there's another jurisdiction. And the final one is there actually was even some news out of Georgia. So we've gone from Florida to D.C. and now to Georgia. And in the middle of, I think, Mary, when you and I were on air yesterday, it was like, oh, wait, here's an image of...

people setting up barricades and security measures being taken in Georgia at the same time that you and I were looking at security measures being discussed and it seemed to be contemplated in DC. So you really do have Fannie Willis and Jack Smith

with all indications that the courthouses are getting ready for what I think is the inevitable. And what's so interesting is because they're totally related to each other. You have two prosecutors, federal and state, both looking at components of what happened with respect to the insurrection and the events involved.

surrounding and leading up to January 6th. Yeah. I mean, we've said so many times before that the Georgia investigation is a subset of Jack Smith's larger investigation into efforts to overturn the will of the people on January 6th, which comprises not just January 6th itself, but everything between the election and January 6th that sort of led up to that, the fraudulent elector scheme and all of the other sort of

conspiracy that we expect to defraud the government and prevent the counting of the electoral college votes. So it really would be remarkable if those two indictments come down in the same week, one being a subset of the other, a microcosm. It'll be some really interesting times. And I think that the security measures are important. Again, I think a lot of us do worry about potential violence because there's been so much rhetoric online suggesting that

how outrageous these investigations are and really kind of prodding people into types of protests that might be something less than peaceful. But I think even putting that aside, just for crowd control, right, there's going to be a huge number of media at both courthouses. There's going to be just a huge number of members of the public who are not protesting at all. They're just curious and they want to be there. So

for crowd control purposes, as well as potential for any acts of violence. And as we both noted, I think yesterday when we were talking about this on air, so far notwithstanding Trump seeming to suggest

protests in both Manhattan and in Florida after he was indicted. And of course, peaceful protest is protected by the First Amendment, and it's an absolute fine. Yeah, totally fine. It's just the context of the way he was calling for it by talking about, you know, how people

and outrageous these prosecutions were and how politicized and weaponized the Department of Justice and the DA's office was, it was kind of a veiled threat. But nevertheless, it was a dud for him in both locations. I think at this point, I do think some of his work

most ardent supporters, while they do support him, they are not necessarily ready to commit a crime for him. - Yeah, that's a small, small recompense. So we're definitely gonna be talking again following the breaking news. I'm gonna be particularly interested in who, if anyone is charged along with Donald Trump in the federal case, same question in the state case.

And then probably most important is who's the assigned judge. Yes. And that's where both of us had a lot of experience with the DC judges. It's a very, very good bench. It'll be really interesting to see who that is. And then we can talk to you about that judge and his or her reputation. But I think that's going to be so critical as we're thinking about what's about to happen and focusing on that.

what that means for the case and whether it could get to trial, you know, before the general election. Mary, it's so nice to talk to you. It's actually really nice to be able to do this in a way that's more expansive than our clips on air. So have a really great weekend. Rest up. Yes, absolutely. We'll talk again very soon. Okay. Bye. Take care.

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 Monday with a very special guest.

The senior producer for this show is Alicia Conley. Ivy Green is a segment producer. Our technical director is Bryson Barnes. Bob Mallory and Rebecca Seidel are audio engineers. Janmaris 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.

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