Corcoran’s Notes 33:28

Hello and welcome to another episode of Prosecuting Donald Trump. Well, this was quite the week. There is a potentially stunning twist in the Mar-a-Lago documents case, which we're going to turn to first, as Trump's lawyer appears to have turned over a

pages and pages of real-time notes that he took of his conversations with his client, Donald J. Trump. We'll turn to the import of that in a moment. Hi, Mary.

Hi, Andrew. Great to be here again. And I think these notes, I'm anxious to talk about them because, as you know, Evan Corcoran and I sort of grew up as baby prosecutors together in the U.S. Attorney's Office in D.C. And one of the first things we learned about was taking good notes.

It's so funny, when you said baby prosecutor, the very, very first time I was on the air with Rachel Maddow, I used the phrase baby prosecutor. And she goes, you prosecuted babies? It's true what they say of you. Oh, gosh. Oh, my. You're right. Okay, maybe I need to change that. Yeah, exactly. No, I hadn't thought of it either. I was like, well, okay, trial by fire. Well, okay, so we're going to turn to Mar-a-Lago first, but then we're going to turn to

a whole series of developments that just sort of kept on coming fast and furious in New York.

whether it's the criminal case that Alvin Bragg has brought or two civil cases, the case against Rudy Giuliani, very apropos for talking about the next topic, which is E. Jean Carroll, because they both involve claims of either sexual harassment or sexual assault. And they are of really interesting import in terms of Donald Trump. But

But before we get to that, let's turn to your friend, Mary. The gist is that there is reporting from The Guardian and also from CNN. And I think at this point, it's just reporting. We don't know that it's absolutely true. But I have to say, Mary, it's got the ring of truth to me in terms of what lawyers do that.

Mr. Corcoran took notes of his conversations with Donald Trump. So let me turn to you. What's your take on that? And then I'm going to relate it to my favorite topic, the Mueller investigation. It's like, you know, you always try your last case. So I'm going to talk to people about that.

Yeah. So I think it's important in two ways, right? One, the notes are very important to the investigation and I want to come to that, but I also do think this reflects that Evan Corcoran knew who his client was and was determined. And I think this was smart on his part. Um, this is what we call CYA. Uh, you know, he was smart to take copious notes. Um,

because he knows he's working with a client who is challenged when it comes to truth-telling, has certainly had relationships with lawyers. Think about Michael Cohen, where he has later said things very different than what his lawyers have said. And I think Evan Corcoran, it was smart of him to take notes in real time of his conversations with

with Donald Trump, as well as it appears with others within Mar-a-Lago, such as Walt Nauda. So and I agree, even though this is at this point just reporting, we haven't seen these notes. They allegedly had been turned over to Jack Smith.

there's a level of detail in the reporting that does, as you say, have that ring of truth. The kind of things that a lawyer would write down when that lawyer, in this case, Evan Corcoran, was responsible for doing the search

of places at Mar-a-Lago, and it sounds like that's one of the issues, is that perhaps he was not told all the places to search. He was responsible for gathering documents in response to the DOJ subpoena for any additional classified documents. So he needed to make sure that he had a record of how he fulfilled that responsibility, because as one of the lawyers who was then going to say to the Department of Justice, we did a diligent search,

And here's everything that we found. He wanted to document that to protect himself and protect his legal career. So I think that was a smart move on his part. Did you have that reaction, Andrew? I did. To me, it completely was reminiscent of what happened with Don McGahn.

And very famously, Don McGahn took notes of a conversation that he had as the White House counsel with then-President Trump. And particularly when Trump was trying to tell Don McGahn what he had agreed to and what he had said, and Don McGahn was saying, no, no, no, you had told me essentially to fire Robert Mueller. And Trump was saying, no, I didn't.

And Don McGahn basically had notes of his conversations. And President Trump said, what are you taking notes for a real attorney like Roy Cohn? I mean, can you believe that that's his, quote, real attorney? By the way, it's a standard disbarred attorney and famously, you know, was the henchman for

Senator McCarthy, sort of an amazing person to say you should emulate as White House counsel. But in any event, Don McGahn said, you know what, I'm a real lawyer. That's why I take notes. Having said that, I could see a lot of White House counsel not taking notes because you're not really thinking that

Joe Biden or Barack Obama or George Bush, one or two, just to make it bipartisan. I mean, you're not going to be thinking they're going to deny what was said. These are reputable people. But Don McGahn famously took notes because for the precise reason that you said, Mary, which is he knew who he was dealing with, which is he needed a record because you had somebody who was

you know, sort of reality challenged. So I think that sort of struck me as a good tactic also. The other thing is, one of the things that was reported was something that could potentially be quite incriminating, which was that Mr. Corcoran was at least one of the lawyers who told Donald Trump that

In response to the subpoena, you have to turn everything over. It didn't matter whether they're classified, not classified. If they were responsive to the subpoena and they bore classification markings, whether you subsequently declassified or not, you have to turn them over. It would be illegal not to. And that could be incredibly important proof in showing the all-important mens rea, the mental state of the

former president and not turning things over. I personally suspect that a trial in Mar-a-Lago will have not just Mr. Corcoran, but a series of lawyers as potential witnesses, because there's no way that White House counsel didn't have a similar conversation and similar instructions just in terms of how to handle documents and what has to be left and what did not. And there are reports that Mr. Cipollone, who is the

then White House counsel, Pat Philbin, Eric Hirschman, a whole series of lawyers could be quite relevant. And Mr. Corcoran's testimony will be yet another person telling the former president. So that could just become very powerful evidence that you have

all of these lawyers saying, which is something that Mary would be obvious to you and me, which is, of course, that's what you have to do. And of course, that's what any lawyer would be advising the former president he needs to do. And frankly, you could even have, since we've talked about Mike Pence going in the grand jury, he may have been asked exactly that, which is what instructions were you given? And did you follow them? And of course, the answer is going to be to certainly the latter is that he followed those instructions, at least to the best of his ability. And similarly, we know that reportedly,

The National Archives is set to disclose to Jack Smith another set of 16 documents that they've represented are communications with Trump and his team about what you have to do to declassify. And so, you know, there's going to be abundant evidence

before Jack Smith and before the grand jury, not only that he was warned about taking things from the White House, he was warned about the process for declassification, and he was warned about the need to actually be fulsomely responsive to a subpoena. And yet it's quite clear because the search warrant executed after the subpoena, after

Documents were turned over in response to that subpoena. The government then, of course, determined and had probable cause to believe that there were still more classified documents at Mar-a-Lago, and that's what prompted the search warrant.

The other thing that I think, based on the reporting about these notes, is significant is getting right at, still related to this mens rea, that you've been talking about this intent requirement, particularly for not only retention of documents, but for any obstruction offense. There's indications in the reporting that the notes

referred to discussions that Evan Corcoran had with Mr. Trump and with Mr. Nauta about where he needed to search for documents, what they told him about which rooms to search and which not. And it sounds like they focused solely on that storage room in the basement as the only place where boxes might be. Devastating, right? I mean, that would just be devastating. I mean, if the lawyer is not

told where to look and submit something saying I did a diligent search. I mean, if that's the case, that could be just really bad news for the foreign president and Mr. Nauta and anyone else who was aware that there were responsive documents in other locations.

It also shows why probably, if all this reporting is true, why the crime fraud exception was applied in this case. Remember, this is normally an attorney with an attorney-client relationship can't be summoned to talk about the communications with their clients. But the crime fraud exception says that when there is an indication that the communications with the attorney are actually to advance the

a crime or commit a fraud, then there is an exception. And here, if, as is reported, Mr. Trump and Mr. Natas said, oh, the only room that anything is stored in that was taken from the White House is this storage room, well, that's pretty good evidence that that communication was

made in order to advance a crime or a fraud. Yeah. And just to remind our listeners, it is not necessary for the crime fraud exception to apply that the lawyer is in on

the fraud. It's only necessary to show that the client was seeking to commit a fraud using the attorney. If you can show the lawyer was involved, there actually is an even broader exception. You sort of get more material, but it's not necessary. In my experience, when I've used it, I've usually not had that issue where the lawyer's involved and there's nothing about that. And we may very well be in that case with Mr. Corcoran, you know, not having done anything that

crossed the line. There may be things that maybe you and I might find a little suspicious or that he had some red flags that he could have seen, i.e., Mary, your point about he took a lot of notes because he knew who he was dealing with. But that's not enough for crime fraud on his part. But again, it's not necessary. So this is like a really good segue to...

three huge developments in my mind in new york let's let's turn to um first alvin bragg with the indicted case so um one of the things that is is happening is the former president remarkably has been ordered to

to actually appear. He can appear remotely, but he has to appear in the court proceeding because the judge wants to admonish him directly about his obligations with respect to discovery and that when he sees the discovery, he's not allowed to

truth social or otherwise talk about it because it's essentially under seal. So, for instance, people's social security numbers, their telephone numbers, their emails, their addresses, all of those need to be protected. And this is the second judge who's had to do this because, remember, famously, we had that in the E. Jean Carroll case where Judge Kaplan said, we're going to have an anonymous jury. Why? Why?

I mean, it's just unbelievable, Mary, that when I'm uttering these words, the former president of the United States could not be trusted.

to not do something that would endanger the jurors. And so here it's discovery where there's, as you and I know from doing lots of discovery, there's all sorts of sensitive information and personal information. And you don't want to have another sort of Ruby Freeman situation where people are inspired to do something untoward. And so, yeah,

That's happening in New York right now. I don't know, Mary, if you wanted to say anything about that. I still find it unbelievable.

Yeah, well, you know, what's interesting is, remember last week we talked a little bit about the timing of Jack Smith's investigation and how if and when he's going to indict, it would behoove him just in order to see that we can get through a criminal trial before the 2024 election. It would behoove him to basically be ready to hand all the discovery over to Donald Trump on a silver platter. The grand jury testimony of every witness you plan to use, the documents, the digital evidence—

But I think what's happening right now in the Bragg case shows you, well, they may need to take a step before that. They may need to go into the court, just like Alvin Bragg did, and said, we have this huge package ready to go. In fact, he says millions of pages. I think he says millions of pages of discovery ready to produce to Mr. Trump. But we want a protective order that protects this evidence from being communicated and disseminated to the public.

And we're so concerned about this. We want Mr. Trump to be advised about it personally. And I think that's a smart first step before you hand it over on a silver platter for all the reasons you just indicated. We've seen time and time again, you mentioned Ruby Freeman and of course her daughter, Shay Moss. These are the two election officials in Georgia who were the subject of not only Donald Trump's

false allegations that they had committed fraud in the way that they were processing the ballots in the 2020 election, also subject to similar claims by Mr. Giuliani, which is the subject of a whole separate defamation case that

Ruby Freeman and Seamus have brought against Giuliani. But these false claims that they were engaged in fraud resulted in threats on their lives, destroying their businesses, you know, real world harms to these two women. And that's the kind of thing that

Alvin Bragg wants to avoid, the judge wants to avoid, and certainly Jack Smith will want to avoid. And like you said, it is pretty alarming. It's pretty staggering that we have to have those concerns, that judges have to have those concerns about a former president. Something you said reminds me of the second thing that happened, which is we had talked about how, in our view, we thought that

Bragg's office should turn over a bill of particulars. They should give more details about what precisely are the crimes that they say lead to the 34 felonies being felonies and not misdemeanors. As everyone recalls, there needs to be some essentially like a predicate. There has to be some crime that the misdemeanor is furthering or covering up.

in order for it to be a felony. And, you know, I think he must have been listening to our podcast, Mary. I think so. Because what's really great is he turned that over. And I just think that was really smart to detail that, not just leave it to his press conference, but to give a formal filing. And, you know, it's a lot of things that we do and a couple things that are new. So he used, you know, federal election grounds

state election crimes, a state conspiracy. And all of those are potentially

potentially strong, but they all, I think, have some potential defenses as, you know, as we'll see get played out as it gets litigated. But I think there was one that I was like a particular fan of and I wrote about just to bore people. But the way it works is if you commit the misdemeanor of filing a false business record and you do that,

to further or to cover up a previous filing of a false business record that counts. And so here... In other words, that can be the crime that you are intending to commit with your false record. I think of it as like a

Lego set stacking up one on top of the other. Exactly. Which is like of the 34 times, the first one's the misdemeanor and the other 33 are felonies because they all further or cover up the prior one. And when you think about what the scheme was, the scheme was to have false business records to say this was just legal payments. And Donald Trump decided to do over 34 different

occasions in 34 false filings. No one forced him to do that. These were choices. And so he could have done it once and just had a misdemeanor, but he did it 34 times. And so one of the theories that's advanced in the bill of particulars is this sort of, I love this, Lego is a great analogy. So they sort of stack up. And I think one thing that I really like about that is I think it's kind of bulletproof.

You know, because there will be litigation, as there should be. I mean, defense counsel is entitled to litigate all of this. But I think that's sort of a pretty strong thing. So I think it's all in all a good thing for Bragg that he is moving this along. He gave more discovery. It's, I think, comports with the due process. More prosecuting Donald Trump. Corcoran's Notes in just a moment.

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Mary, you made a reference to Rudy Giuliani, and we're not going to have time to get into all of the details, but there was a really interesting civil complaint. Now, just to be clear, there are allegations Rudy Giuliani denies it. We don't know whether they're true or not. It is true that some of it is reported to be taped.

It is also true that the complaint is what's called verified, meaning that the plaintiff has to sign that it's true. That doesn't mean it is, but it gives us a little bit more.

And she says that she has had access to over 20,000 emails. So there's a lot of stuff there. But what did you make of that civil complaint after your jaw hit the ground? Yeah, it is a tough complaint to read. And I actually prosecuted sex offenses for several years. And even still, this is just the salacious details in here really, really make it a tough read. But this is a woman who...

went to work for Rudy Giuliani to kind of help him expand his businesses, at least according to the complaint back in 2019, to help him with his public relations. And according to the complaint, what ensued thereafter was just an escalating series of sexual assaults on her. All the while, he's saying that

I'm hiring you for a million dollars a year salary, but I can't start paying you yet because I'm still in the middle of this divorce with my wife and I can't reveal income sources that might get hung up in our divorce proceedings. So just please keep working for me and having sex with me on a regular basis while I don't pay you. By the way, that is almost the least of the, as you said, it's such a hard complaint to read. That's the least of it.

Yeah. Yeah. And, you know, I think of that video of Giuliani giving an interview where he is lying about Ruby Freeman and Shea Moss, where he's talking about them passing around vials of heroin, where we know it was actually a

some sort of mint that one passed to the other when they were in the post-election ballot counting space. I think of that video of Giuliani making those claims up about them and having read this complaint now, I'm just wondering what else is happening in that room while he's making that video. Because when you read this complaint, it's just pretty astounding what Ms. Dunphy claims

she was made to do while he was doing work on phone calls, on Zoom calls. And it's pretty disgusting. So one of the things that

I took away from this is there were sort of three sets of leads for prosecutors in terms of specifics. We've talked a little bit about the tax crime, which is there were some specifics about Rudy Giuliani hiding income. And there's some real leads that are given, not just about emails and

possible tape recordings, but also potential witnesses to it. And again, don't know if it's true or not, but if you're a prosecutor, you know, that's one set of leads. You want to follow up on that, for sure. The second was one that had to do with

Rudy Giuliani saying before the election that plan B was to make a false claim of fraud in the election. So that's something that, of course, would be really interesting to both Fannie Willis and to Jack Smith.

um particularly fanny willis because there's a lot of evidence about what rudy johnny was saying to georgia electors about the election so again if there's corroboration for that if this plaintiff is is credible that's a new witness for them yeah because just to pause on that for a beat you know

Trump continues to say that the election was stolen. Giuliani continues to say that the election is stolen. And I think partly that has been so that they at some point in time can claim it was their honestly held belief, even in the face of so many different advisors. And we now know that.

about these advisors telling them there was no substantial fraud in the election, people including former Attorney General Bill Barr. And here, if this is true, what is in this complaint about what Giuliani said even before the election

then that is another important piece of evidence to show it's all been made up and it's all been made up all the time. And this goes to Rudy. I mean, so we've seen so much with respect to the former president, but this goes to Rudy and that goes to a point I wanted to make about sort of the tax of crime and this, which is the way prosecutors bring cases is sometimes you have to go indirectly to get what you want. And what I mean by that is,

when we were doing the Enron investigation, one of our big toeholds was a crime with respect to somebody named Michael Copper. He was the right hand to Andy Fasta, the CFO. And the initial crime was not really related to Enron, but it caused him to flip. An organized crime case I did, the first sort of toehold in that case was a drug case

offense from a low-level associate, but we were looking at a war, an internecine war between two factions, and we were looking to do conspiracy to murder cases. But the way we got into it was by looking at a crime we could make. So here, you have this potential for a tax crime. You have a potential for false statements to electors. So you have a

other ways to charge somebody. And again, obviously, you have to have the proof. You have to decide that it's warranted to bring that case, that it's not selective prosecution in look or feel or in any way. But it's a way that prosecutors go about making a case. And so when I read this complaint, that's what I was thinking. And then finally, there's a third set of crimes, and that's the one that got the most attention, which was the selling of pardons.

And again, that could be true, could not be true. The wording of that is gonna be really important. If it's just a question of somebody was asked to do work to get a pardon, I mean, lawyers are asked to do that all the time. The thing that made this different is first,

million. That doesn't that's a lot of work for just making a pardon application. And she says there was a discussion of splitting the fee with Donald Trump. So that would take it out of the realm of just doing some work. And of course, you know, you can't do this. The other thing, you know, to your point about this doesn't sound like a normal sort of process of seeking legal help in obtaining a pardon is that at least according to the

Giuliani also told Ms. Dunphy that they should avoid the normal channels of going through the office of the pardon attorney. Well, obviously, because the pardon attorney is not going to be involved in selling pardons. So just saying, let's go outside normal channels is a little bit of an indication, too. This is off the record. Yeah, I forgot that little nugget. Okay, so finally, in case this wasn't enough news,

E. Jean Carroll. So as we all know from the CNN town hall, right after the verdict in E. Jean Carroll's case, and just to be clear, nine jurors unanimous finding that it was sexual assault and defamation, Donald Trump goes and does it again.

And then, by the way, not just at the CNN town hall, I think even as we speak, he's been on Truth Social repeating these things. In fact, repeating it in a way that since he kind of knows he's going to get sued again, that he's trying to shove in more of his defense to the claims as if there really is a defense, but he's really gilding the lily. But so it's really interesting because what happened was that E. Jean Carroll's counsel said,

has already a pending case for defamation. And it's a little complicated because people might be going, what do you mean? I thought there already was tried. Well, what happened was initially, E. Jean Carroll brought a suit based on defamation that Trump committed, according to her, while Trump was president. And so there was a lot of litigation about

can you bring that case if he was president? Is it part of his role as president or not? And in the meantime, as soon as Donald Trump leaves office, he repeats the defamation and the law change that allowed the rape and sexual assault claims to go forward. So that's why you sort of had two cases. So what's happened is you have a verdict in the second one, but the first one's still pending. So with that as a background, what happened

What E. Jean Carroll's counsel did is they asked to amend that complaint. Now, they're not adding a new charge to that complaint, but they are adding additional allegations, including the information about the CNN town hall.

And the idea is that if you're ever going to get punitive damages against somebody, the idea that there was a judgment against somebody and they continued to defame. I mean, the whole point of punitive damages is to deter somebody. And so you really want to be able to say to a jury, I mean, you know, I know you gave to about $200,000 before, but this time you really need to give a lot more because it's not stopping him.

And that could have been the basis for a whole new complaint, right? But the other thing, I think the other reason, in addition to sort of beefing up the punitive damages claim, the other reason for filing this as a proposed amendment to the original pending suit is that this evidence, what Trump said during the town hall, the verdict in the other case, what he's continuing to say now is all evidence that Trump

E. Jean Carroll wants to use to say, no, this was not within the scope of Mr. Trump's functions as a president when he engaged in the original defamation while he was president, because in the complicated legal history of this case, that's the issue that has that case on pause. The courts in New York actually deferred to the District of Columbia on employment law on what is the scope of employment.

District of Columbia Court of Appeals said, we'll tell you what our law is on what's called respondent superior, where that employee-employer relationship is within the scope of employment. But we're not going to answer the question about whether Donald Trump was doing this in his scope of employment. We're going to send that back to New York. So that's what's

pending now in New York, still a decision. Donald Trump, while you were president, when you were making these defamatory statements or just these statements, was that within the scope of your duties as president? And so E.G. Carroll's filing, I think importantly, is to say all of this showing of his intent shows this couldn't have possibly been within the scope of his duties as the president of the United States.

You know, if that fails, she can sure bring another case if she wants to, saying these current statements, the things he's doing day in and day out right now are also defamatory and justify punitive damages. But I thought it was good lawyering to use that evidence to try to seek to amend the existing pending case. I agree completely, Mary, that it's going to come in to help show this employer-employee

issue and to help resolve it in her favor. So it seems like it's relevant. I think one of the reasons that they may not have just brought a new claim is that it's not totally clear that you could bring that claim in New York because the statements were made in New Hampshire where the town hall was, and that would be a whole new judge. And you just don't know how it's going to

there. But one of the downsides of doing it the way that is being proposed is it's not totally clear how much punitives can take into consideration. Since that's one of the main gists here with respect to punitive damages, how much you can consider what happened at CNN's town hall when the gravamen

The main reason for bringing the case is a statement that Donald Trump made while he was president. So how do the two of those relate? And so this is one where you can see a lot of legal hand-wringing behind the scenes about how to do this and where to do it. But it is something that you definitely are going to keep an eye on.

Well, Mary, this is, you know, once again, we're like racing to the end because Donald Trump causes no end of issues for us to cover. So it's, again, super fun to talk to you about them. Yep. You know, we could do a whole law school class on just these investigations. Maybe we should. That's an idea. Okay. Donald Trump prosecution 101. Exactly. Exactly.

Thanks so much for listening. We'll be back next week with much more. The senior producer for the show is Alicia Conley. Our technical director is Bryson Barnes. Jan Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow or subscribe to the series.

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