Indictment Watch... Again 35:33

Hello and welcome to a new edition of Prosecuting Donald Trump. Mary, welcome back from vacation. I know we were both away last week, had breaking news in the middle of it, but I think you kind of lucked out because you're back. And something tells me

We may be getting just a little busy, which is what we're going to talk about today. Absolutely. No, I did luck out and I didn't have to ruin the entire vacation by reading indictments and affidavits and all that stuff. So I'm very happy about that. And now I think you will be. So I have a story about I was on air on Sunday morning, but I was on NPR and

So it's not really a competing issue. And here's the best. It's great. The best, the best. But, you know, so I was on with Ayesha Roscoe and I was on at 9 a.m. And just beforehand was The Puzzler. And I don't know if you're a fan of The Puzzler, but I...

follow the puzzler religiously. I mean, literally Sunday morning, it's like some people go to church. I go to the church of NPR and play the puzzler and I'm really old. So I've been playing it for years. And do you know how many times I've actually been selected? I think of it. I obviously don't always get it, but you know, when I do, I submit it and I was on at nine and I wanted to start by saying, Aisha, couldn't you just squeeze me in just a little bit earlier to the

puzzler. Like, do you really need to hear me talk about Donald Trump and the possible third indictment? We've done two already. Your real expertise is in the puzzler. Yeah. Although if you saw my answers, it's like my hit and miss ratio is really bad. Okay. Well, you can improve.

Yes, I have room for improvement. Exactly. So, Mary, I think the obvious topic for today is to talk about the, to use a loaded term, the imminent indictment of Donald Trump. And this one will be

indictment number three for those keeping score at home. This would be the second federal indictment, but the third indictment, and now the term is probably right, imminent, because Bonnie Willis used that term in, wait for it, January. But she has said that she's going to be making a decision on that

either end of July, beginning of August. So that's going to be coming up. And obviously, because of the news about the Target letter, we're waiting for the federal indictment by Jack Smith in D.C. So we're going to start by talking about

about that and discuss sort of what we expect, what kind of things we would be thinking about as prosecutors. And Mary, this is one where, you know, when I was thinking about this before, I know people are probably thinking, you think about this before you go on air? Because it doesn't sound like it. But yes, I know Mary does. But I was thinking about this is just so

unusual a situation because normally you might be thinking you want to include all of the charges, all of the co-conspirators who participated in one indictment. And you're not so focused on the clock and the idea of

How soon could you get this to trial? And if you add in co-conspirators, what will that do to the case or not do the case? But this is a really different situation if the prosecutors are thinking about the timeline. And so it's just, you know, this is one where...

I don't know about you, Mary, but I've never had that precise situation where I'm really thinking about, gee, if I add in a co-conspirator, what's it going to do to the timeline? So I wanted to maybe have that as a conversation because normally...

You know, if I were looking at proposed charges in D.C. with respect to the former president, there's some obvious people, if there were proof, that I would include. So let me just give a sort of obvious example, which is Jeffrey Clark, the former DOJ official who

by all accounts, seems to have lied to his boss at the time, the former acting attorney general and also the acting deputy attorney general, so Mr. Rosen and Mr. Donahue, and was part of sort of a scheme to say, we're going to open a fraud investigation, even though there was no fraud, so that Donald Trump would be able to use that as another potential arrow in his quiver to

not have the votes counted on January 6th. And he would sort of be an obvious person to me because what he did to the Department of Justice, what the import of what he did. And you would want to include him. And then, by the way, there could be many others. There's a cast of thousands. Yeah, I mean...

Some others that come readily to mind are Rudy Giuliani, Mark Meadows, John Eastman, Kenneth Chesbrough. These are all people who, at least based on public reporting and evidence that came out through the House Select Committee and other evidence that has arisen, text messages, emails, etc. These people were all involved in the fraudulent elector scheme. Many of them were involved in pressuring

Secretary of State Brad Raffensperger in Georgia to find the votes that Trump needed to win Georgia, which of course he did not win, and those votes were not found. So yes, there's a number of people, and I agree with you, Andrew, normally when I was pulling together cases, you wanted to bring everything in one indictment. I have had circumstances where timing was an issue in other investigations of

public officials where you're concerned about getting too close to an election, right? But that's different than adding the conspirators. I mean, that was a part of us trying to figure out our timing, but we were mostly driven by not wanting to be perceived as interfering with an election. And those are really tough

because you're kind of damned if you do and you're damned if you don't. If you don't act before the election and you act right after it, people are like, what the heck? Why didn't we know about this? But if you act too close to the election, people are like, what the heck? You're trying to influence the election. So those are tough calls. And we've talked about that with respect to Trump too. But a whole added thing is,

Are they done? And I think this comes up because, of course, last week we had the target letter sent to Donald Trump giving him four days to come talk to the grand jury, which really sounds like, OK, we're ready to indict. But since then, we've heard that people like Bernard Carrick, who worked for Rudy Giuliani, have been.

providing information to the special counsel and are due to talk to him in a couple of weeks. And that makes people think, well, wait a minute, does that mean there's not going to be an indictment until after Bernard Carrick comes in? Or is there going to be something earlier? And I think that's what really drives this question that you're raising. Will Jack Smith go ahead and bring charges now, perhaps only against Trump or only against Trump in a

one or two others, but keep investigating for potential charges against others who also should be held accountable. Yeah, so what would you do? Would you bring it all? Let's assume that you had

the proof against some of those people that you named, would you bring it all as one case? Would you hold off on everyone but Trump? Or would you bring it as two cases? Just note to self, if you bring it as two separate indictments, the judge does have the ability to combine it.

It's not very common because it's not very common that you would bring it as two separate cases, but the judge does have the ability to say, you know what, I'm going to try them together. Even though you tried to separate them, I'm going to combine them.

What would you do here in this sort of unusual situation? Yeah, I think it's a tough call. And because, you know, I think my instinct would be to bring everything together. But then, like you say, the more co-conspirators, each one has their own attorney. Each one is going to be bringing their own motions. That's going to delay trial while those motions get resolved and the odds of being able to get to trial before the election keep diminishing. But I do think there's a risk if you just bring it against Trump or Trump's

Trump plus one or two others, then it also looks, could be perceived, and certainly Mr. Trump and his

you know, supporters would say he's now being treated unfairly because others who, at least based on public reporting, appear to have been involved have not been charged. So I think it's I think that's a very tough call. And I think, you know, not being privy to all the evidence and what has happened and who might be cooperating. I mean, we've speculated about that, but we, of course, don't have any hardened, you know,

true answers on that. I don't know. I can't say for sure what I would do. I think I'd be losing sleep over it, though. How about you? Yeah. This is one where it's so hard because like you, all of my training

and background or to keep it together. But that's because I haven't been in this situation where I would also feel an obligation to the American public to do everything I could to have the trial and the evidence laid out for them. By the way, one way or the other, obviously, if I were the prosecutor in the case, I would think that he did it or otherwise I wouldn't bring the case. But

One way or the other, I would feel like the public has a right to sort of see this and hear it. And if you could get it to trial before the election, you should. I think there's some judges who would have that view also. Again, one way or the other. So that sort of intention with that training, I think I would still...

charge at least some. I don't think I would... Let's say I had 10 people, I wouldn't do that. But if I had a couple people, I don't think that the incremental cost to the trial date would really be worth it. And it would help sort of present a more complete picture to the jury if the person's sitting there. And...

If for some reason that additional person were to be the cause of delay, you could always ask to sever that person. In other words, even if you charge them together, there is the ability with court permission to move to sever. A lot of defendants ask to be severed because they think there's prejudice to being tried with somebody who's, let's say, more culpable.

So it's not uncommon. And I could see that happening here, right? If there are co-defendants to Mr. Trump, I could see them saying, we want our own trial. We don't want to be in this trial with Donald Trump.

So I wanted to do a brief sidebar just on Bernie Kerik, because as I keep on saying to people, I'm a native New Yorker, in case you couldn't tell. Yeah, you might know something about that guy. Yeah, so Bernie Kerik, just a little primer on him. So he used to be the police commissioner under Mayor Rudy Giuliani. It's so shocking to me that, you know, it's like he's come so far.

far down. By the way, he was extremely unpopular as a mayor. People sort of forget that because he did really, really well during 9-11. I mean, he was sort of incredible, and it helped to sort of erase just how unpopular he was before that. But Bernie Kerik was the police commissioner. He also is a felon. He was prosecuted for a whole variety of things, was convicted, and, wait for it, was pardoned by guess who?

President Trump. So that's his background. And he, this convicted felon, served as the chief investigator for Rudy Giuliani looking for fraud in the election.

By the way, if he was looking for fraud in the election, in my view, he should have just started with the White House. Right. Because that is the entire theory of what is going to be the third indictment. And I think the fourth indictment, the one in Georgia, whichever one comes first. And...

We have some indication of what is in those documents from two separate sources. One, Bernie Kerik had to provide what's called a privilege log. So if you withhold documents from discovery in a civil case, you have to provide the

other side with a list of what you have withheld. So that is public. And there's a lot of things about affidavits from people. There's a discussion of his briefing the then president, President Trump. That's one of the documents that was withheld. And so we have a sense of that there's some kind of alleged evidence there. But we actually have more than that. We have a sense of an

an evaluation of at least a portion of the documents because a portion of the documents were provided by rudy giuliani in the dc disciplinary proceeding against rudy giuliani and there's a public decision on that this is a preliminary decision by the dc bar saying that rudy should be disbarred and it goes through what they saw in the bernie kerrick

But the reason Rudy Giuliani was supplying this to the D.C. Bar's Professional Responsibility Committee as part of his disciplinary proceedings is, in his view, this was going to substantiate that he was not bringing baseless lawsuits in places like Pennsylvania, where he was alleging election fraud. And so he offered...

these documents that Bernie Kerik had amassed as part of his quote unquote investigation into fraud to say, look, there's some real there there. We had a real basis to bring these lawsuits. So that would be what is commonly known as a miscalculation. So the opinion

notes that both Rudy Giuliani and Bernard Carrick were not willing to say that the documents that they gave to the disciplinary committee were true and valid. Like no one was under oath willing to say, oh, these are accurate, which is a little red flag. So that was step one. And then the

the panel, they looked at the documents and this is what they said. So this is legal jargon, which is they said that it provided all of this provided no probative value. That's a quote, no probative value. That is legal for bupkis. Yes.

To use a technical term. Yeah. No probative value in this matter. Yeah. And then went on to say, and they do not support the allegations made by Mr. Giuliani in the Pennsylvania litigation. Just bam. Right. Shut down. Right. So...

You know, it is conceivable that there is other information that Bernie Carrick has that is better than what they provided to Pennsylvania. But, you know, if I'm a betting person, I would say not bloody likely. Yeah.

So I just don't think so, because, you know, obviously, if you're in the process of trying to save your hide and your law degree, you might actually put in the best evidence, even if it's from outside of Pennsylvania, to try and show that you weren't totally wrong. So I do think that the Jackson has to review all of that material. They want to make sure that it doesn't provide the

former president with a good faith defense, meaning that he relied on information, even if it turned out not to be accurate, but they want to look through it. It could be really devastating proof. It could be yet again, another piece of evidence that didn't support

any claim of widespread fraud. Remember, this is not just that there were one or two instances. This has to be enough to say that the whole election should be overturned. So it's likely to be very good evidence for Jack Smith. I do think that he is going to want to make sure he's gone through it. I don't know that he would wait to interview Bernie Kerik

Because he presumably has, and reports are he's already talked to Rudy Giuliani about this. And seen the documents, right? So he's got the documents. And so, yeah, he may have some questions for Carrick, but it's really going to come from the documents, I think.

Yeah, exactly. So again, if time were not sort of of the essence, I would say he very well may wait. But I think given the situation and given the fact that there was a target letter, that we are on the cusp of an indictment and, you know, have a feeling, Mary, you and I will be seeing each other this week. Let's put it that way and end it for work-related reasons.

More Prosecuting Donald Trump, Indictment Watch, again, in just a moment.

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Okay, so Mary, should we talk about an issue that I've been thinking about? I think I'm a bit of an outlier here on sort of like what those charges will include. And one of the charges that was referred by the January 6th committee was to refer a potential charge of insurrection, 18 U.S.C. 2383. And

I thought of two reasons why, if it were me, I might not want to charge that particular crime. That I might charge, I certainly would charge obstruction. I also might charge seditious conspiracy, which is kind of an obstruction, but with the use of force, assuming you had that evidence. But let me give you maybe my two reasons why I would be

I would want to hear from people like you, Mary, if I were in the Justice Department. I would be like, Mary, let me lay out for you my two downsides and tell me why I shouldn't be thinking about those or why there's enough arguments on the other side. So with that huge, ridiculous preamble, let me lay it on you as to what the issues are.

So that statute hasn't been charged since shortly after the Civil War. I mean, that's why it was passed, right? It was signed by Lincoln. Yeah, absolutely. And it was signed in order to protect freed slaves from groups like the Ku Klux Klan. By the way, groups that marry you in your day job are actually slaves.

really spearheading with ICAP, holding them civilly to account, which is like, I know I keep on plugging that because I just don't think it can be said enough just how great your work is on that and the work of ICAP. Appreciate that. But again, I digress, but it's like, I could just go on and on. So it hasn't been charged. Now, there is a counter, which is, of course, it hasn't been charged because it hasn't really happened. Right. But

But it is it would be something where it would feed into Donald Trump being able to say, I'm being singled out unfairly. And by the way, nobody who participated in January six has been charged with hundreds of people has been charged with that. They've all been charged with either obstruction or when appropriate, seditious conspiracy. So to me, I'd want to be looking at charges that have been brought before because

it's not that it's legally selective prosecution. It's that the perception of selective prosecution, because you're reaching for a statute that has not been charged. And that

when you're prosecuting a former president for essentially the first time in history, it's useful for it to be a charge that is used and has been used against people so that people understand that this is something that anyone in the same position would be charged with. The second is that the insurrection statute includes a provision that is a disqualification upon conviction

of running for or holding federal office. And that verbiage is important for reasons we'll get into. It says that anyone convicted of this

shall be incapable of holding any office under the United States. Exactly. And you can understand that there's a whole constitutional issue about whether that, because it hasn't really been tested that much as to whether that works, but it certainly will fuel the argument that if you combine it with my first point, that this is being done for political purposes, that it hasn't been used before, and that this is the reason it's being selected. And

I really do not think that is what Jack Smith is thinking, that he is bringing this to stop someone from running from office. That's just not how prosecutors think. They think, you know, did you commit a crime? Is it appropriate to charge this person? Does it meet the elements? Exactly. Have other people been similarly situated? So anyway, with that, Mary, what do you think? So I think those are all...

really important prudential considerations, and I would be thinking about them the same way. There are also some legal considerations because to the extent that an insurrection charge would be based on the incitement prong, right? Because it's about whoever incites the

sets on foot, assists or engages in any rebellion or insurrection, or gives aid or comfort thereto. You can see the sort of 1800s language at use in this statute, right? So to the extent it would be based on incitement, there could be First Amendment

um, arguments there about things that the president said, uh, maybe at the ellipse, the morning of the insurrection, and even in, in the days and weeks prior to January 6th, that, that did in fact, in my opinion, have the effect of inciting the insurrection, but for which he could make some first amendment arguments about, and we could do a whole episode on that. I think there are responses to that and certainly, um,

uh speech that is itself a criminal offense is not protected by the first amendment but nevertheless there would be our legal arguments so i think you've got your legal considerations and your prudential considerations but i do think it's unfortunate though because as you say um

This hasn't really happened before other than the Civil War. So it's not super surprising that there haven't been prosecutions except with respect to this January 6th matter, right? Like you said, all the many people who actually physically assaulted the Capitol were

I think most of us thinking that's an insurrection or rebellion against the authority of the United States haven't been charged with this. So just looking at January 6 alone, I think you're right that there would be an argument there that he's being treated unfairly if he were to be charged with this. Although, you know, it,

There are certainly other situations where the foot soldiers don't get charged with the same thing as the kingpin, right? Right. And so there's plenty of responses to that, but there would also be a lot of criticism. And the reason I say I think this is all sort of unfortunate is I do think there's a lot of evidence to support this charge. Yes. And I think that the calls that this is a political prosecution are so just –

wrong from the outset because, as we all know, Donald Trump is fundraising and campaigning on this investigation and potential prosecution. And every time there's been an indictment or a major step taken in any of the cases, at least according to public reporting, it's cha-ching, cha-ching goes the cash register for his campaign. So if the... Oh, yeah, he runs on...

I'm a victim. I'm the billionaire victim. Exactly. I'm the president victim. Right. The Department of Justice is weaponized against me for political purposes. What could be less against the interests of the current administration than to help Donald Trump with his campaign for president? Yet they're doing these investigations because

because they're trying to hold him and others accountable for violating criminal offenses and attempting to really undermine our democracy. And so the very notion that this is politically motivated is sort of like flipped on its head and absurd, because if you really wanted to be political, you wouldn't touch this thing with a 10-foot pole, and you'd let him go off and try to make money some other way. Right, and also he would be less- Less in the spotlight. Eating up the spotlight, exactly. That's what he loves, is being in it.

By the way, welcome to being a lawyer where you argue both sides of a case. But I think one of the arguments against my position, which is I think what you're getting at, is you just can't go chasing how it's going to be perceived. And you can't be doing something different because of how it would be perceived. And if insurrection fits and it's an appropriate charge and the reason it hasn't been brought in the past is because people haven't done this, then it's

You don't worry about what some MAGA Republicans are going to be thinking about it because you know what? You're not going to ever convince them. That's true. Who are you speaking to? Just as I was trained as a baby prosecutor, just do the right thing and you live with those consequences because you know in your heart you've done the right thing. And so that's a counter to it, but it also could be somewhat of a tempest in the teapot in that

I do think it fits, there are a lot of other charges. There are. The obstruction charge and the insurrection charge absent that disqualifying piece, which would be heavily, heavily litigated is one that you can probably just bring the obstruction charge and it's clean and it's sort of been brought before. That's right. By the way, it's not like the obstruction charge doesn't have some open issues, but in any event,

So I think the final thing is what I call the Rachel Maddow question. So this has been sort of a favorite topic of Rachel's, and she actually asked it on one of her podcasts of the three prosecutors who were involved in this Spiro Agnew investigation. And it was really interesting before we reveal like what they said, this was the question she had. She said, look, with Spiro Agnew, one of the

things that happened there is that

They made a proposal to Spiro Agnew, which was, you're going to step down from the vice presidency, you will plead guilty, and as part of that, you will agree that you're not going to ever run for office. And he obviously could agree or disagree, and he decided to agree. The proof was overwhelming, as she documents and describes from what the prosecutors put together. And the question she keeps on asking on air to them is,

Is that something that prosecutors should be thinking about? Should they be offering that to Donald Trump? In other words, that you could have a plea deal? I mean, there are plea deals all the time in terms of you think about what you would be willing to essentially resolve the case for.

would one of the conditions or should one of the conditions be that you can't run for office? It sort of relates to the insurrection point we were just talking about. Should you be tying that sort of consequence in to...

a potential plea deal. And maybe one other data point, which I was thinking about in completely different circumstance, but I don't know about you, Mary, but when I was like, again, a junior, junior prosecutor, one of the cases we had in what's called general crimes, your first year was...

so-called test letter cases, which the postal inspectors did for people in the Postal Service who were stealing mail for credit cards, money, et cetera. And one of the things that we would do is if they agreed to admit liability,

and to resign from their position, they could have a deferred prosecution agreement if the thing that they were accused of doing was pretty minor, like it was just one test letter or a small amount of money. So there was connecting it to getting them out of the Postal Service. Obviously, very different circumstance, but it's not that it's unrelated in terms of trying to help the public that they shouldn't be on the public payroll. So anyway,

What do you think? Yeah, I think this is a hard question just to refresh listeners, not readers, listeners, although you can read a lot about this on Spiro Agni. The crimes that he pleaded guilty to were not related to his time in the vice presidency. They were

related to his time as governor. Basically, he was taking bribery. He was taking payments for giving favorable contracts to engineers in the state of Maryland. And he was still receiving some of that money while he was the vice president. And he, very much like Donald Trump,

went out very publicly, guns blazing, saying that the Department of Justice was being weaponized against him for political purposes. It's really pretty remarkable when you look at the similarities and the rhetoric at the time. And then suddenly, bam, there he was in court saying, I plead no low contendry. Now he pled, no low contendry means I'm not admitting to the facts, but

of all these cases, what I'm admitting is that the government has enough evidence to convict me of these charges. And government doesn't really like doing those kind of pleas because we do think it's important. We, listen to me again, we. I've been out for six years and I'm still saying we. You know, the government likes to...

know that somebody is actually admitting this. But part of that deal also, as you may recall, was in addition to Spiro Agnew tendering his resignation and agreeing not to run again, the government also said, we will be submitting publicly the evidence we've amassed of all these other crimes that we're not even asking you to plead guilty to. So they thought it was very, and I raise this because I think that's where some of the accountability comes in. Some of the things that were important to the government, not just in him not admitting

remaining as vice president. And you may recall, he had a real good chance of becoming president because this was all happening during Watergate when Nixon was also very much under fire. So the government was very concerned about that, but they also wanted all of his wrongdoing to be made public. And I do think

That would be an important feature if there were to be any plea with respect to Mr. Trump. And I have said other times, I just don't think that Donald Trump has the capacity to ever admit wrongdoing. I've never heard him do it ever. And so I think it's unlikely he would accept anything. But you could probably have said that about Spiro Agnew as well.

because of the ways he came out very dramatically and forcefully saying that this was the Department of Justice being weaponized, yet ultimately he took a plea. But there was something very different there, which was that

the Republicans left him. They did not support him. Exactly. Back in the 1970s, they're like, dude, you're on your own and that's not happening here. So I know I still haven't answered your question, which is, would it be appropriate to sort of tie some sort of settlement plea arrangement to Donald Trump withdrawing from the race? There is something that in my stomach makes me feel queasy about that. But

I don't think there's anything improper or unethical or unlawful so long as it is a real arm's length transaction. Both sides come in with sort of equal power. And certainly I think they do when we're talking about

former president as opposed to some sort of very, very low-level person who's kind of gotten swept up in a crime and feels very imbalanced of power vis-a-vis the Department of Justice and maybe feels coerced into accepting, and I use that term kind of colloquially here, you know, personally might feel coerced, not that the

government is actually engaging in coercion to extract a plea. But sometimes there is an imbalance of power. Here, I don't think there would be that imbalance. And if he were to decide that's the deal he was willing to strike, just like Spiro Agnew did, I don't think there's anything wrong with it. I don't

I don't see necessarily that being generated by Jack Smith, but if it's something the former president wanted to talk about, I think they should talk to him about it. So funny. So of course, I'm in violent agreement, which is that I don't think that Jack Smith can raise it. It would be viewed as just completely politicizing the situation. But if the former president

were to raise it, then I agree with you. There's nothing wrong with that as a potential option if the former president were to raise it. I don't think the former president, like you, is going to raise it because right now the whole focus of today's session is his strategy is to play the victim and to put these cases off until after the trial. I

I'm sorry, after the trial, after the big trial, which is the election. And, you know, hope he wins or Republican ally wins. The federal cases at least are over at that point. And he can worry about the state cases to the extent they're still extant at that point. But I just don't think at this point, this is like front and center in his mind of like any sort of plea deal. Regardless of how strong the cases are. Yeah.

And he may have attorneys, you know, trying to advise him otherwise, but then he'll probably just get some new attorneys. Exactly. As he's want to do. And that would actually be a reason for him to try and delay things even more, which is like, I have a new counsel. Yep. Need more time. Yep. So, Mary, I actually hope to speak to you later this week. Right. On another episode. So stay tuned. Yep. We'll be there if it happens. Bye.

If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. And Mary and I, as you know, will read them and then hopefully get them on the air and answer them. Thanks so much for listening.

The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Bob Mallory is an audio engineer. 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.

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