The Miami Arraignment 31:13

Hello and welcome to another episode of Prosecuting Donald Trump. Well, it was another momentous day when we saw the former president arrested again, this time on federal charges.

I have a feeling though, Mary, we're going to be doing this two more times. So buckle up. But nice to see you and nice to talk about what happened because, you know, it's interesting. I've seen you on air and I'm sure you've seen me on air because basically I feel like for the last 48 hours we've been living and sleeping at MSNBC, but you and I haven't had a chance to actually talk about what happened. So everyone's going to get this

It's our first time. Exactly. Although it's really funny. I think you were on last night at the 8 p.m.

special coverage and I was on at the 9 p.m. special coverage and I was listening to you and I was just like, oh my God, I love her. And I was like, I couldn't agree more. Well, the feeling's mutual. Sometimes people think we rehearse this, but we don't rehearse this. We just go. Yeah. By the way, I wasn't fishing for a compliment. Well,

Oh, my God. My whole family. I love Andrew. He's so great. Yeah, wait. Tell me more. Tell me why I'd like to hear more. So it's actually quite a serious day. I'm doing a running total. We're now up to 71,000.

felony counts. I have a general rule, which I always tell my students, which is I don't do math in public. But this is basically 34 in state court and 37 just against Donald Trump. There is another count that's solely with respect to Mr. Nauta. But that's a total of, if I got my math correct, 71. And the reason it's kind of useful is because I really do think we're going to be back here and we just keep on adding this up. So we may top, we may get into three digits.

Yeah, I've heard that this was the former president's birthday. But I think there are going to be more felony counts than birth years. So I do have a funny story before we turn to something serious, which is I thought I was going to be coming home yesterday in the sort of late afternoon. And I'd planned that I could walk my dog and feed him and do all the stuff I need to do in real life and then go back to the set.

But they were like, nope, you're not going anywhere. Put your butt back down on that seat. So I was sort of frantic, but there was a really wonderful intern who said, you know what, get me your keys and I'll go to your house and I'll walk the dog and feed him. And so at 3.58, I'm off set to...

to speak to the intern and Nicole Wallace is waiting to go on at four, but I'm supposed to be on at four. So she goes, if you're going to the bathroom, that's not allowed. She's joking. She goes, get back on set because you've got two minutes. And I was like, Nicole, it's not about me going to the bathroom. It's about my dog. She's like, okay, well, then it's allowed. Although she's so funny. You're going to have to get a dog door. She was basically like, you know what?

I'll go do it after my hit. I'll go. Just give me the keys. I'll do it at six. These are important things. So let's turn to something really serious about the case. And we're going to talk a bit about the court appearance yesterday and what struck us as normal or a little unusual. And then we're going to really go right into the case. What do we expect? Not just what happened yesterday, but really...

What kind of motions are we expecting by the government? What are we expecting by the defense? What are we seeing as potential weaknesses or problems? And then kind of the elephant in the room, which the first topics relate to, which is what to do

if anything, with respect to Judge Cannon? What is the strategy? And that's where I really am dying to talk to you because that's where it really is. You know, somebody who's been in court a lot. It's everybody has had to deal with difficult

judges. And there are different ways to do that. So it'll be fun to sort of noodle through those issues. And then briefly, we'll talk about just a development in DC that I thought was particularly interesting. So Mary, why don't you start us off? You've now had a chance to read the transcript. Obviously, you had the coverage from yesterday. What seemed normal and what struck you as unusual?

Yeah, we talked, I think, on Saturday about what an arraignment is, right? This is a chance where the indictment is formally presented to the defendant. Although, of course, here, the former president and his counsel, as well as all of the public, had access to the indictment's language last Friday. And

It's the time for him to enter a plea, guilty or not guilty. And of course, the first thing that his counsel did on his behalf, he did not speak. Oftentimes the defendant himself will speak, but it's not uncommon at all for their attorney to speak for them. And in fact, a defendant can waive their appearance at their arraignment and have the attorney speak for him. But here, of course,

Mr. Trump was there and his attorney said, certainly, we certainly enter a play of not guilty. But I thought the other thing that was remarkable about this is that

This is also the time when the judge, in this case it was a magistrate judge, it wasn't Judge Cannon, this magistrate judge made it clear he was handling only this arraignment and nothing else. This is when you set conditions of release. And even in a case where the government is not asking for pretrial detention, as in this case, there are often many standard conditions of release. And basically the government came in yesterday and said,

We're not asking for anything except a personal assurance, personal recognizance, no money bond at all, and standard condition number five, that you not commit any local, state, or federal crimes while you're on release. We're not asking for anything else. And the judge then went through kind of all the standard conditions. So, you know, normally defendants would be told they can't leave the state of Florida without getting approval of the court. Are you asking for that?

No, Your Honor, said the government. Do you want us to take his passport? Normally, there'd be restrictions on travel. No, we're not asking for that. No restrictions on international travel. No restrictions on domestic travel. And I think this is worth noting because, you know, the former president and his allies have said over and over and over how unfairly he's being treated. And so far, everything I have seen is the government bending over backwards to treat him frankly, not just fairly, but some would say fairly.

more favorably than other defendants in similar situations, because even white-collar defendants often are asked to turn in their passport. They have means of

to get on a flight and leave the country. And they're often asked to turn in their passport. So I think it's really worth noting the government is trying to take off the table a lot of things that he could be complaining about. That doesn't mean he won't stop complaining. That doesn't mean he didn't fly to Bedminster last night and talk about what a travesty, what an injustice this was. But in terms of what the government's doing, they brought this case in Florida. They didn't bring it in D.C., right? He's got the most favorable judge he could possibly have so far. And we're going to get to this so far. The

The government hasn't asked for her to recuse herself and they have asked for nothing special. They didn't even ask for him to not have contact with the witnesses, even though we all know from not only the history of this particular case, but so many others that he has a habit of himself or someone else reaching out to witnesses and defendants in cases and trying to influence them. And the government didn't even ask for that.

It's specifically one of the allegations here is obstruction by what he was going to do through other people. He actually is quoted in the indictment as repeatedly saying, why can't you essentially get rid of the documents for me and then I won't be in trouble.

That's right. That's one of the things I thought was most remarkable. And I understand the government when the court said, look, notwithstanding that you're not asking for a government, I think it's important that he not have contact with witnesses and his co-defendant. The government even said, look, you know, we know some of these people still work for him and it would be hard to have no contact. And where they actually ended up, and this was after a lot of argument before.

By Mr. Trump's own counsel, where they ended up is that the government will provide the defense and the judge with a list of witnesses that the government does not want him to communicate about the facts of the case. And that's really good luck. Good luck. Yes. Right. Right. Right.

they're going to have to, you know, wire somebody up or something. But so I thought that was remarkable because I do think there's a real risk here that Mr. Trump will try to influence witnesses and certainly his co-defendant, Walt Nada and Evan Corcoran. Yeah. So, I mean, Mr. Corcoran, I find to be such an interesting witness because he's still Donald Trump's attorney and

on other matters yeah so which i find hard to understand i really do yeah so first of all if you're mr corcoran it's like uh i'm i'm out of here he's gonna be a principal witness to obstruction of justice and we'll get to sort of like some difficulties in the case but i mean i understand why donald trump would still want him as counsel because it's like keep your friends close your enemies closer right that's obviously what he's doing with mr nauda uh

He's going to want to do that with Mr. Corcoran. But I just don't even understand ethically how you do that as a lawyer. I mean, how do you advise somebody and have a duty of zealous advocacy when you're also one of the main witnesses on the obstruction of justice count? So I don't understand how he is working through all that in his head. Or what he'd want to, honestly. I have to say there's so many...

lawyers that I've seen where, I mean, it's then politicians too, where I just sort of go, how do you look yourself in the mirror? I just don't know how you can say a lot of the things that they're saying. And it's one of the things that we're seeing now is the reason there's such cynicism about politicians and lawyers, frankly, because of the way you behave. I mean, just, you know, if you're a lawyer, it's a profession. The judge I clerked for used to say when someone said, a

by this client, he would say retained. And I once asked him, what did you mean isn't hired and retained the same? And he goes, when I say retained, it's the idea that you are not a hired gun. You

you don't do what your client tells you to do if you think it crosses the line, or morally, you just can't do it, you can withdraw. And he said, retain connotes that better than hired. He was such a wonderful patrician, old school judge. But for me as a young lawyer, it was a really great thing to have as a mentor. More prosecuting Donald Trump, the Miami arraignment in just a moment.

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Let's turn to what do you expect? Let's try the defense side first. What kind of things do you think they're now going to do? What kind of motions do you think they're going to make?

Well, some of the things that, you know, we've certainly heard complaints about are prosecutorial misconduct. There's been reporting that Trump's former attorneys, the two who just resigned right when he was indicted, that when they had visited the Department of Justice, they had made a complaint about one of the prosecutors acting unethically and trying to influence justice.

lawyer for one of the witnesses, and by that meaning influence a witness, and that is Walt Nauta and his lawyer. And so I suspect that that is something that we'll see raised pretty early on, whether it will be through a motion to dismiss or some other type of motion, motion to disqualify that prosecutor, something like that. And then, of

Of course, you know, there's a lot of speculation that they will want to challenge because one of the most damning parts of this indictment are the parts that relate to Evan Corcoran, the lawyer. Information from his own notes and his own, you know, transcription of his...

engagement with the former president and the things that the former president asked him to do. That's a real core basis. It's not the only evidence of obstruction, but it's a real core piece of that. And so I think there's a lot of us who think that there's a good chance that the defense will try to argue that

The judges in D.C. made a mistake by piercing the attorney client privilege and requiring him to testify by finding the crime fraud exception. They'll try to revisit that in Florida. And that's particularly so if they stay in front of a judge like Judge Cannon, where they have reason to believe she may be favorable to something I think would be very, very hard to actually attack. And there could be other things. But those are the two that hit me. I want your thoughts on those.

I can think of all kinds of other smaller things that have to do with discovery and all that, but those are a couple of big ones. Yeah, so I agree with you. And just people should remember what the defense lawyer's role is. This is not something to be upset about. This is what defense lawyers are supposed to do. As long as it's made in good faith, they're supposed to be challenging a case, attacking it. Again, they have to act in good faith. You can't, you know, support perjury. You can't make

arguments in bad faith. But, you know, challenging Judge Howell's ruling, even if you think it's a loser, you know, it's like, what's the downside? Yep. Preserve it. Preserve it, right? So that you can keep arguing it on appeal later. Yeah. So just to be clear, when Mary, always the appellate lawyer, thank God I need an appellate lawyer on this podcast. But

By preserve, it means that if you don't raise the issue at the trial level, the court of appeals is going to be like, hey, you want us to rule on something that you didn't raise first with the district court? Like, you're kind of out of luck. So that's what...

it means to preserve an issue. So I agree with you on those. I think that there is going to be an effort to essentially use gray mail. That's what happens in classified cases. We've talked a little bit about this. But essentially, the defense is going to try to find really sensitive classified information, say that there's

come up with reasons why they really need to use it in a public setting. The idea of that is to sort of force the government to choose between going forward with the case or offering a really lenient plea because they don't want to have national security secrets exposed. By the way, we keep doing this sort of dangling of we will talk about SEPA, the Classified Information Procedures Act,

But the reason for that act is to essentially reduce the risk of gray mail. But I think, you know, if I were on the defense side, that's what I'd be looking for is what good faith arguments could I make for that?

On that point, Andrew, I do think it's worth, you know, there are 31 different counts of unlawful retention of national defense information, each relating to a different document or piece of national defense information. So I wonder if in some ways the reason there, I mean, the government doesn't need 31 counts of that, right? Like one or two would be enough. So if

If there is an effort to graymail, to say for us to defend against 31 counts, we're going to need, first of all, they'll try to use this for delay, right? That means this is going to take us months and months and months to review all the discovery. We can only review these sensitive documents in a SCIF, a special facility made for that at the courthouse. That's inconvenient. That's time consuming. We can't take it home. And there's so many. So they'll use it as grounds for delay, but they'll also do what you suggest and say, for

For each one of these, we need to see every other sensitive document related to this topic, because there may be defense as to why this hasn't been held closely. It hasn't been protected by the government. It's not really still national defense information. The government can say, well, we're going to jettison some of those and still have retention accounts because they have 31. Yeah, it's true. But one thing volume does give them is it sort of

makes it clear why he's being prosecuted. He can't say, I didn't know about these, because it's not like we're talking about some one document buried in a huge, you know, like one grain of sand on the beach. And so volume helps. And it also, because although you're not supposed to argue during nullification, it does sort of seep into a case. And the more classified documents, the greater the volume, the greater the seriousness of the documents, it helps to

undermine that stage whisper of during the location. But that's definitely all things that I think are going to be done. And then I'm sort of thinking that related to SIPA, I think the government is going to be making its motions about how to use classified information. They may seek a protective order in the way that we saw in the New York state case, which is limiting

what Donald Trump and Walt Nada personally can do with the discovery they get, so that they're not using it to find and attack witnesses. And there's not only Judge Mershan, who is the state case, but Judge Kaplan, who had the E. Jean Carroll case. Both of those judges have taken steps because of the track record of the former president. By the way,

Mary, I'm still pinching myself when I say that. I mean, it's crazy. And I just want to make sure everyone understands that is said in the most apolitical way. I wouldn't in a million years say that about George Bush one or two or Ronald Reagan. The office of the presidency is just it's still shocking to me that we're talking about that.

tells you just sort of where we are as a country. But I see that as sort of things that the government's going to want to do. And I think that they're going to really push as, this is not me guessing, this is Jack Smith said, they're going to ask for a speedy trial. So I think the other thing they're going to be doing is trying to really push Judge Cannon for a date. And I think that'll be really interesting to see how she deals with that. And this gets to

Something I really want to talk about, which is Judge Cannon. And Mary, is it okay if I give a little background, which will tell you sort of where I fall up on this? Which is, I've heard in the last 24 hours, lots of people saying, well, maybe she's learned her lesson and the glass is half full. I'm not one of those people. My view on this is fool me once, shame on you. Fool me twice, shame on me. And the reason I say that is that

She made a terrible decision initially, and she was reversed by the 11th Circuit. And I, at that point... Multiple terrible decisions. Yeah, absolutely. So she's reversed the first time. And I thought, okay, well, maybe she's chastened, and she will actually do better. And she just doubled down. And she continued to, and then she was reversed again. And...

And she also treated the special master, who was another district judge, who was far more experienced. Far, far senior to her. Yeah. And who actually had classified information experience because he was on the FISA court, the National Security Court in D.C., which, Mary, you know far better than I do. So I just don't see why...

She's going to change her stripes. The only possible reason that she might hold back a little bit is that she could give fodder to a motion to recuse. So that's sort of where I'm very pessimistic about this. But I wanted to know, what did you think? And also,

What would your strategy be with respect to how to deal with her given her track record? And just to be clear, it's not a track record in other cases. It's not like we're sitting there talking about, "Oh, you know what? In another case, she did something wrong." This is this investigation. Right. This investigation. Yeah.

In addition to her bad rulings that were just not legally sound at all, and the court of appeals said so, I also worry just because she is so inexperienced with classified information, as she made clear, because that was at the heart of both of her previous rulings. Government, you can't look at this classified until we...

have some special master appointed to review all the defendant's privileges. And the Court of Appeals is like, you've got no jurisdiction to even be ruling on this. And you don't even understand the importance of classified information. That's right. And it's none of your business. This is an executive branch business. And by the way, note to self,

the former president is not entitled to extra deference because of his prior position, because that's antithetical to the rule of law, which, by the way, you took an oath of office to uphold. By the way, do you think I'm a little exercised on this? Well, but you're right about all that. But even if

she didn't have appearance of bias. This is a case that needs a judge who's familiar with the Classified Information Procedures Act and knows how to schedule that kind of stuff, is not going to be starting from scratch because this case needs to move apace if it's going to get to a speedy trial before the election. And so even if she was in good faith, that would be a challenge. But for somebody who's already shown herself to not really have any inkling about how classified information is

handled, it's very disturbing. Having said all of that, I know a lot of people have been talking about she has to recuse, the government has to seek a recusal if she doesn't do it voluntarily. If I were the special counsel, I would not go in and have my first motion be a motion to recuse. I mean, there's no question that

the United States Code has a provision that requires, the word is shall, that a judge shall recuse when a reasonable person could question the judge's impartiality. And I think there's really no question on this record that a reasonable person would question her impartiality. That is a self-affecting or it's supposed to be a self-executing provision. Like the judge is supposed to do that on their own, but if not, the government can make a motion. Now it's certainly possible that

that the chief judge could whisper in her ear, don't you think it would be better if you recused here? And maybe she will, maybe she won't. But if I were the government, I wouldn't go in right off the bat and make that motion for a couple of reasons. That's going to stop everything. She's not going to

start the process of getting a protective order or hearing motions or anything while this motion is pending. And that will just slow things down. She would probably deny this motion. And then the government would be looking at potentially appealing. And it might be difficult to win that appeal if she's saying I can be unbiased. Maybe they'd win. Maybe they'd lose.

If I were them, I would proceed as, you know, in good faith in front of her. And if she makes a horrible, legally baseless ruling on the first motion, the first thing in front of her, or even does something crazy with respect to a protective order that's supposed to govern the classified information, anything like that, that's where I think I'd take it up and use that opportunity in the context of a current existing jurisdiction.

Dispute, yeah. And see if at that point we could seek a recusal. Other people have a different view, but it's partly because I think that already Jack Smith and his team have bent over backwards to seem like they're being fair and overly fair. And they knew they had a good chance of getting her as a judge when they went there. So I think they're prepared for this and maybe would have already seen a motion. I mean, it didn't get arraigned until yesterday, so maybe not.

But that's my speculation. Do you disagree? You may be more bullish on this. No, I'm in violent agreement. And you know what, Mary, we're going to have to find something. It's going to be so much more interesting for everyone. We have to find something that we disagree on. To disagree on? But this is actually, I was listening to you. I couldn't agree more. I think this is one. I do think reasonable minds could differ, but I would wait until

for the next ruling that she makes that's nutty. That's a legal term. And she's going to, either through inexperience or bias or for whatever reason that she made the first two decisions that got reversed, there's going to be a third. And that's just a really good context for

to appeal it. And then as part of the appeal, you tell the court, you should reverse it. And when you send it back, you should send it to a different judge. And while that's not usual, that is something that happens in the Second Circuit. That actually is the Second Circuit's here in New York. That is something that it's not common, but it's just not unheard of.

that that happens. And sometimes, by the way, the court will just do it on its own without the government even asking for it. So I do think that's the right strategy. I also think it looks better. And we've been talking about things that sort of the government's been doing that for almost an appearance sake, you started by talking about the absence of bail conditions requested by the government. You know, that's the effect of sort of having this very, very public case and looking at how things would be perceived. And I think it

going into this eyes wide open to have your first motion be, I don't want this judge, it's going to be perceived as you want to stack the decks. Which isn't the case. I mean, the government isn't sitting there going, oh, I want a judge who's appointed by a Democrat. I mean, I have to say,

Mary, when I was in DOJ, I didn't care at all. All I wanted was a fair judge. I wanted a judge where if you were right, you won. And if you were wrong, you lost. And also a judge who was like, didn't put up with shenanigans on either side. If you were doing something sneaky on either side, the judge was going to come down on you like a ton of bricks. That's a perfect judge for me. Yep. Totally agree. So one thing that happened yesterday is,

that I actually thought in some ways, as much as it's so historic that you now have 71 felony counts against the former president and probably the Republican nominee, or at least at this point looks like that,

which usually you would think would be a disqualifier. Yeah, one might think. Apparently not. So I thought the sort of untold story was the fact that there were two so-called fake electors going into the grand jury in Washington, D.C., in Jack Smith's

January 6th investigation. To me, this is total Jack Smith. I'm going to just tout the Eastern District of New York because that's where I got to know him first. And I was there. He was there. That's just so EDNY, which is very tenacious. Move forward. Keep your foot on the gas. And this was amazing to me that Jack Smith was there.

in Miami at this historic day, and the January 6th case was not stopping. That was going forward as well. And to me, it really indicated that he really understands the importance of the clock, something that we have talked about, and the need to pursue all of this

rapidly. And I will say that's something that reminded me of, in a very different way, Bob Mueller. The first day that I went to the special counsel, he was like, "When are you going to charge?" He's joking in the sense that, of course, he didn't mean it, but he was very aware of his responsibility

to the public to get in and get out, that this had to be done quickly, that the American people were entitled, and frankly, the then president was entitled to have a rapid investigation and to not let this drag on like a Ken Starr investigation or now I could say a John Durham investigation, that this is something that you have to have self-control.

Yeah, absolutely. And to the extent that people thought, well, the other investigation will just kind of go by the by, that is clearly not the case. It is proceeding apace. I did think it was interesting. The New York Attorney General, Tess James, mentioned about the potential for the other state cases to have to yield to this federal case. And I just...

I wish she wouldn't have said that. I think it was premature to say that. I'm not sure why she said that, because it's certainly possible that there would end up being a conflict with these trials in them getting set and the former president's ability to defend both in close proximity. But let's wait till we get to that point. Yeah, totally agree. Totally agree. I think she just totally misspoke. It's either that or I think she doesn't have a lot of confidence in her case. But if I were Alvin Bragg, I'd be like, ah,

Yeah, what are you suing? Speak for yourself. You know what? My criminal case is set for trial and my criminal case was first in time. So, like, you know, butt out. Right. So I don't know. Maybe she was having, you know, what is it? Something that I have all the time. Senior moments. Moment. Yeah. Moment. Yeah. There's no bar to more cases. There's no bar to more investigations. Whether I'll get tried before the election. That's a different question.

So I'm sorry if I sounded a little off, right? Because I'm about to go to sleep now because I feel like I've been on like nonstop. I was on Morning Joe this morning, woke up at four. And so I'm going to go walk the dog, play with him and go to sleep. And then, Mary, I have a feeling at the very least, I'll see you in a week unless we do another emergency episode because Donald Trump is keeping us on our toes. Absolutely. Absolutely.

If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.

The senior producer for the show is Alicia Conley. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. 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. You're getting so good at that.

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