E. Jean Carroll v. Trump 52:12

Welcome back to a new episode of Prosecuting Donald Trump. Well, the former president's legal nightmares appear to be worsening with a lot of new developments, I would like to say in the last week, but frankly, Mary, I'd say in the last day. 24 hours.

One of the things that's starting today is a new civil rape trial. That almost sounds like an oxymoron because it's a civil rape trial. We'll turn to that in a second. But that's getting underway here in New York.

in federal court. Plus, we also got yesterday a big hint from the Fulton County DA, Fannie Willis, about what we can expect in her Georgia investigation. So with that, hi, Mary. Nice to see you. Good to be back this week. It's interesting you talk about developments in 24 hours because you and I had been kind of communicating over the weekend about what we might talk about today, which I

to a certain extent, got derailed yesterday. So we changed what we're going to talk about. Now we know we don't need to plan until about five minutes beforehand. That's right. Because the news will take over everything. So we also have first ever, of course, this is only episode six, so it's not like a huge change in our protocol. But we also have a really great

an interesting guest who is somebody who Mary and I have known for years and years and years because he's a real sort of DOJ fixture for so long, but he's definitely not known publicly. You know, he doesn't have that sort of public persona. So it's a really great chance to learn from him and for you all to get to know him in the way that certainly Mary knows him well.

But with that, why don't we turn to the first issue, which is right now, as we speak, a civil jury is being selected in the Southern District of New York by Lewis Kaplan and the plaintiffs and defendants' lawyers, which would be E. Jean Carroll and Donald J. Trump, where there's a civil case which involves

defamation and rape, which is such an oddity because it isn't the actual criminal charge of rape, but a civil case. And it's because of an unusual law that was passed in New York that became friendlier to people who want to bring allegations of rape forward.

And then the defamation charge was very much helped out when the former president repeated the alleged defamation after he was no longer president. So whatever claims of immunity he had in connection with what he said when he was president all went by the wayside. I mean, this is where, you know, you know, his counsel was like, oh, my God. That's right. Could you keep your mouth shut?

Because we had a really good argument going, or at least a potentially good argument. But that all went by the wayside because the statements that are alleged to be defamatory were made. In this case, they're alleged to have been made while he was the former president. Of course, there's no privilege with respect to that statement.

So, Mary, I know you've been following this case closely. Let me turn it over to you. What are your thoughts here? Yeah, well, you know, first, like you say, it really, you know, I think a lot of people need to be sure to understand this is not the criminal case charging rape. And that means the standards are different because in a civil case,

The standard is not beyond a reasonable doubt. You, under New York law at least, and this case is brought under New York law, it's in federal court, but it's only in federal court because of procedural rules that allow it to be there, something called diversity of jurisdiction. This is where, by the way, Mary, Donald Trump hurt himself when he moved from New York to have his official residence in Florida.

That allows what's called diversity jurisdiction because the plaintiff, E. Jean Carroll, is a New Yorker, but the defendant is a Floridian. And so when you have that situation where you have two people from different states, you're allowed to bring that case in.

federal court. So when Donald Trump moved, he actually then allowed as a consequence this case to be brought by E. Jean Carroll in federal court. That's right. Yeah. So it's diversity. The term is not so consistent with the way we tend to use diversity these days, right? In common parlance, it just means the plaintiff and defendant are from different states.

But it also importantly means the standards are different, right? Because in a criminal case, it's the government's burden to prove all the elements of a crime beyond a reasonable doubt. Jury must be unanimous. It must be a jury of 12. And in civil cases, at least under New York law, well, in all civil cases, but under New York law as well, the standard is preponderance of the evidence, which is a lesser standard than beyond a reasonable doubt. Essentially, it means, you know, more...

Well, not more likely than not, but better than a 50% chance. Yeah, 50% and a hair. And actually, you know, because I was a prosecutor in the District of Columbia, even though I was a federal prosecutor, as we talked about in an earlier episode, the federal prosecutor in District of Columbia prosecutes both federal crimes and D.C. crimes. And I actually spent a couple of years prosecuting sexual offenses. So going to trial, having to prove

cases kind of like this beyond a reasonable doubt. But that standard doesn't apply, of course, to E. Jean Carroll and her attorneys as they prove their case. So one thing that I think is interesting, Mary, is, you know, a lot of people may be thinking that this is literally a he said, she said

that you're going to have E. Jean Carroll saying, this is what happened, and you have Donald Trump, at least in his deposition, saying, no, it didn't. And frankly, the evidence of the defamation is him saying that it didn't happen. But this case is actually...

Well, it's important to think of it as a he said, she said. There actually, by all accounts, are going to be four really interesting witnesses that kind of make it a he said versus she said times five. And that's because there are sort of two sets of

two women who are all going to be testifying. So there are two women who are friends of E. Jean Carroll who are going to testify that she told them about the incident at

the department store where she says she was sexually assaulted by then, not yet president. And she told them contemporaneously what happened. And that's just so important to me in terms of defeating any sort of claim that this was made up or it was brought just because he became the president of the United States. And so those two witnesses could be really important.

It's really important in criminal cases as well. Like I mentioned, I prosecuted sexual offense cases in D.C. and particularly where you have delayed reporting to police like you have with E. Jean Carroll, in fact, delayed for decades to show that contemporaneous with the assault, the victim did tell other people what happened is really important to defeat any claim that this was made up later down the line, either because the person thought that

you know, it would bring publicity or more frequently because they think in a civil case, because they think they could get money. And so I think these witnesses, like you said, are really crucial. And likewise, in criminal prosecutions, they're very crucial as well. And it's an exception to sort of the ordinary rules about hearsay because it's a way to show that, yes, I did tell people

right when this happened about it and then made a decision because of all the adverse impacts that could have come with going to the police about this. She made a decision not to do that. And many, many victims of sexual assault make that decision. It is not fun to report a sexual assault to police. You end up telling your story, an intimate story to strangers, some of whom are not always super sympathetic.

You often then are taken to a hospital where something called a rape kit is done, which is where medical professionals take swabs of certain areas of the body to get DNA and things like that so that these things can be tested. And it's invasive and it's intrusive. And when you've just been the victim of a sexual assault, sometimes it's extremely upsetting and traumatizing for victims to go through that. And so it's not uncommon at all to just not report.

Yeah, absolutely. And here you have the added factor of Donald Trump's differential in sort of power and money and status. And apparently what I've heard from the reporting is that of the two friends that she spoke to at the time, one said, this is rape, you need to report it. And one said, you've got to be kidding, he'll destroy you.

So it'll be a very human element. The other two, the pair of witnesses, is that the judge has allowed two other women to testify about their experience being sexually assaulted by Donald Trump. And that also obviously could be very powerful evidence. And it would be consistent with what the judge ruled that the Access Hollywood tape is going to come in. And obviously that is

I think, very strong evidence because you have the former president actually saying what his pattern of behavior is. I mean, that is a direct admission. And so having people support that, again, from a

Right.

But given the standard, this seems like a very strong case, at least from what we've heard on paper. So this is going to be one that's really closely watched. I do think there's an issue, Mary, about sort of like what the import is, because you could end up with a result where a jury finds by a preponderance that there's defamation and or

a rape and let's just assume that the the rape charge is established you know you have the foreign presence not going to go to jail over this because it is a lower standard and so you have really just the political consequences and the financial consequence but it'll leave I think many people feeling dissatisfied even though you you could end up with with quite a significant victory for Eugene Carroll

That's right, because the civil penalties are, you know, they don't include anything like a sentence, a criminal sentence. And I think you're right. It could put things in a very strange light. You know, some people are also wondering what impact, if any, does this have on the criminal investigations? And the fact is, this is a very, very different case than anything that's being criminally investigated right now. And so in terms of the investigations themselves, I would say it really doesn't have an impact. But

But one thing that it will impact and already is impacting is jury selection. So jury selection is starting today in the civil case, and the potential jurors already received...

And those questionnaires do ask questions about whether they are aware of other criminal investigations into the president and whether they can still be fair and impartial. And if and when we get to the point of any of the criminal cases going to trial, we, of course, have an indictment by the

District Attorney Alvin Bragg and potential indictments coming in the other cases that haven't been returned yet. But if any of these go to trial, those same kind of questions will be asked. Assume this case does result in a finding by the jury that there was a sexual assault and that there was defamation, then future juries will be asked, what do you know about that? And does that impact your ability to be fair and impartial? And of course,

Trump's attorneys will argue he can't possibly get a fair trial. I have to say, probably from the government's perspective, it'll seem like a grain of sand on the beach because there's so much publicity. And as Judge Kaplan has said, much of it generated publicity.

by Donald Trump himself. One final note about a piece of proof that I think is going to come in that's been reported on that hasn't gotten a lot of attention is one of the things that Donald Trump has said that's part of his defense is, well, she wasn't my type.

Which is an odd thing to say. It reminds me so much of what's reported to have been the sort of a fatal flaw in the Oscar Wilde trial where he was on trial for being gay. By the way, in many ways seems like another world and in other ways seems like we could be going down that road of criminalizing being just who you are. But Oscar Wilde, apparently, when he was on trial, said, well, also, I didn't do it, but also he was too ugly. Right.

And so Donald Trump in many ways has taken that same tack, which was, you know, I didn't do it. It's made up. But also, like, she's too ugly for me to have done this to. It's a little hyperbole, obviously, in what I'm saying. But one of the issues that came up during his deposition when to try and defeat that is he was shown a photograph and asked,

Do you know who that is? And he identified the person in the photograph as his former wife, Marla Maples. But it was a photograph of E. Jean Carroll at the time of the alleged rape.

It's remarkable, actually. That is going to be really kind of a great evidence to defeat that. And it will go both to the sort of the rape charge and the defamation charge because it sort of directly undermines that. So this is going to be a fascinating case. It's in front of a highly, highly respected federal judge who's going to have no nonsense whatsoever. And the case is going to move along. So it'll be fascinating to watch.

We'll be right back with more of Prosecuting Donald Trump, E. Jean Carroll versus Donald Trump.

As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall. Extraordinary levels of enthusiasm from Democrats for the fight ahead. The Democratic National Convention. Special coverage this week on MSNBC.

Mary, I wanted to turn to yet another thing that broke yesterday and get your take on it, which is Fonny Willis and this letter that came out. And what your take is, I have never seen a letter like that from...

at the federal or state level. And I wanted to get your sense of like, you know, what it said and what your take is on what, what on God's green earth is going on there. Right. So this letter was directed to the sheriff in Fulton County to basically let the sheriff know that she will be announcing charging decisions sometime between July 11th and September 1st. And that, you know, based on open source intelligence that,

indicates an announcement of these types of decisions could provoke a public reaction that could involve acts of violence. And she wants the sheriff and the law enforcement community in Fulton County to be able to have adequate time to prepare for that. Now,

She could have done that privately. She could have called up the sheriff. Exactly. You know, we know that Alvin Bragg had conversations with law enforcement in Manhattan before making his announcement. And even those

did get reported, they weren't done in a public letter like this. So I do think that she was probably also trying to do some signaling to people who've been sort of on the edge of their seats waiting to learn what kind of charging decisions she and the grand jury, well, the grand jury really will have made in Fulton County. And I think maybe this was part of her way of saying, okay, you know, hold your horses. It's coming, but it's not coming until July. I also think, I mean, we

We can't know for sure. She could. It doesn't necessarily guarantee that there will be indictments because it's certainly possible that if there was an announcement of no indictments, there could be people who would have a public reaction to that and protest. But I do think.

It's more likely that she expects to be announcing indictments because that, I think, is more likely to trigger the kind of response that she wants law enforcement to prepare for. And I would note that in New York, of course, we had President Trump calling for big protests. If he were indicted, we had others, Marjorie Taylor Greene going up to New York, trying to sort of incite a big protest. And largely it was a flop.

But Georgia is not New York. Georgia is not New York City, Manhattan in particular. You're telling me as an inveterate New Yorker. Yeah. Do you see any differences, Andrew, between Georgia and New York City? I do, although in terms of voting, Georgia keeps on getting... Surprising us, yes. Yeah. Yeah.

So I think she has more reason potentially to be concerned that some of Trump's most fervent supporters, the kind who potentially would become violent, may come and protest in Fulton County. Yeah. So I had the exact same take, which is this was sort of essentially a public way of walking back the word imminent that she used when she was speaking to the court about whether things should be unsealed or partially unsealed.

And this is a way of saying I'm still working on it. To me, it does strongly suggest that she is working towards indicting Donald Trump as opposed to not indicting. And nor do I think that she's

would issue something like this if she was really just looking at Rudy Giuliani or Mark Meadows or a slate of state electors. Those all could be within the mix, but it all reads very much like a question of when I'm going to indict him as opposed to if I'm going to indict him with the him being Donald Trump. The other thing that's sort of interesting is the sort of federal state

that we've been talking about. There was news this week about text messages and discussions about stolen material, sort of improper access to the election machinery

at the state level, and that this was discussed with Donald Trump in the White House. Obviously, a lot of that's going to depend on exactly what was said in terms of its utility. But, you know, you can be sure that both Fannie Willis and Jack Smith are going to be all over that particular issue and

and also looking to potentially charge the people who did break into those machines, whether it's at a federal or state level. The thing I was sort of interested in, Mary, was your take on something that's really inside the weeds and maybe sort of the reason for our podcast is the so-called TUI letters, which is T-O-U-H-Y, which we deal with a lot, but it's when somebody outside of the federal government wants to get access to information

a current or former federal official

they have to go through this process, which is euphemistically called the TUI regulations, where they ask permission and it sort of sets out a procedure where you have to say, this is who I want to talk to and these are the reasons. And then it can go up the chain within the Department of Justice to make a decision whether you're going to permit it or not. And

And apparently there were some TUI requests at the state level from Fannie Willis, and they don't appear to have been, let's just say, granted. And in the normal case, you see that the feds, as we've talked about, Mary, you probably were better than I was, but I used to have a view which is like, I'm the feds, I'm the big gorilla, 600 pound gorilla in the room, what do I care about the state? Right.

But in a case like this, where the state's been so active and there's a reason to have a successful state case because it's kind of it's federally pardon proof. I was just interested in your take about how you think Tuohy should or should not apply in this situation.

Yeah, so it is so interesting because as we've talked about before, the Fulton County investigation is sort of a subset of the Jack Smith investigation into January 6th. And not only the events on January 6th, but also the fraudulent elector scheme and so on and so forth. And so there's some overlap there in witnesses, including government official witnesses involved.

It's the kind of area where I would hope that there is consultation, even though oftentimes these TUI letters go up through sort of a civil side chain of approval process at the Department of Justice. I would hope that there would be consultation with Jack Smith as well in terms of how would he like to see the –

working between his investigation, the relationship between his investigation and Fannie Willis's investigation and how that might impact decisions made about access to government officials by Fulton County investigators. But I'm not sure, and you may have seen reporting that I haven't seen, whether that's happening or whether it's kind of being treated sort of like your standard run of the mill to a request, which wouldn't seem reasonable

necessarily the smartest thing in a case like this of this significance.

Right. So this is something like our listeners should keep an eye out for to see essentially what the department's going to be doing vis-a-vis Fannie Willis. It'll give you a real sense of how much they think there's momentum on the federal side and their view of which case should go first and who's got preeminence. But so that is definitely a to-be-continued little insider tip to look to see what's going on there.

We'll be right back with more of Prosecuting Donald Trump, Ijin Carroll versus Donald Trump.

As Democrats unite around Vice President Harris, they'll gather in Chicago to endorse their presidential ticket. A new era is here. It is go time. Stay with MSNBC for insights and analysis. The race is going to be close. Everybody should prepare themselves for that. Plus reporting on the ground from the convention hall. Extraordinary levels of enthusiasm from Democrats for the fight ahead. The Democratic National Convention. Special coverage this week on MSNBC.

Now talking about the feds, this may be a really good time to bring in our guest.

So I couldn't be more pleased to include Doug Letter in our conversation today, Andrew. So Doug is the former general counsel to the U.S. House of Representatives. But importantly for this conversation, Doug spent about 40 years at the Department of Justice. He was the head of the Civil Appellate Division. He's litigated cases in federal courts around the country for decades.

decades, as I indicated, on behalf of the federal government, usually in defense of the federal government. I lured him away from that job in 2018 to join me at Georgetown Law at the Institute for Constitutional Advocacy and Protection because I thought he would be such a valuable addition to our constitutional impact litigation team. And we had a really happy almost year together until

Speaker Nancy Pelosi lured him away from ICAP to –

And did not mean we quit working together, though, because... By the way, 2019, gee, what was going on then? I bet, Doug, it was a really sort of laid-back kind of job where you just were sort of sitting around twiddling your thumbs. I mean, can't really think of anything going on right then. Yeah, Andrew, I spent a lot of time in the gym. I was just trying...

you know, take accepting a paycheck and doing much of nothing. Yeah. And also, you know, Nancy Pelosi seems like such a non type a personality, you know, she just ran a really loose ship. So that just sounds like a great job to know. So I actually had a question, which I know a little bit about, but, um,

Could you just, what does that job entail? What does it mean to be the general counsel at the House? Like, I think most people wouldn't understand sort of the legal role. I mean, they obviously see what people do, or frankly, many people see what they don't do as elected officials. But what does the general counsel do? That's a very good question, Andrew. And a lot of people, even in Congress, didn't know the answer to that. Yeah.

I did figure it out. The General Counsel of the House is a unique person.

position. It's not provided for by statute, although it's recognized by statute. It's provided for by House rule. The general counsel is appointed by the Speaker. So when Nancy Pelosi took over on January 3rd, 2019, she appointed me later that afternoon. What it means is I was appointed by the Speaker by rule. I took direction from the Speaker and she could have fired me at any moment. So I was, you know, her appointee.

It meant, therefore, that I was to represent her and the official people in the House committees, the speaker, et cetera. She was to consult with something called the BLAG. What a horrible acronym. The Bipartisan Legal Advisory Group. But couldn't you get that changed? And by the way, it really should have brought up. Could you also change the name? Hipsy and sissy.

which are also terrible acronyms. By the way, this is now, if people want to know what inside baseball, this is all about acronyms within Washington, D.C. It's the land of bad acronyms. And because you dropped it, we have to say, HPSI is the House Permanent Committee on Intelligence. CISI is the Senate Select Permanent Committee on Intelligence. So that people aren't wondering what the heck these things are.

But Andrew, you missed the best acronym at all. And I think almost nobody knows that it's an acronym. The Patriot Act is actually an acronym. And so that is the key. If you can make an acronym that's a word. It's true. And that's, I mean, that is, congratulations.

congressional heaven, it seems to me. Anyway, I also was to represent all the members of Congress if they wanted me to, because members of Congress get sued, and they have lots of questions, legal questions that come up. They didn't have to use me. They could hire their own attorneys, et cetera, but I was free, and because of my wonderful staff, I knew what I was doing. So it was a very, very interesting position because I represented all the members of the House,

But at the same time, I represented the agenda of the speaker and the various committee chairs. And one of the cool things about being in that position is Doug was able to reach out to outside counsel in litigations when his staff, he had an excellent staff of attorneys, but he engaged in quite a few litigations on behalf of Congress when he was in that role. And he could reach out to outside counsel to assist. So attorneys at ICAP,

co-counseled with Doug's team in at least five different litigations. But importantly for today's conversation, those include litigation to enforce congressional subpoenas. And as many listeners probably know, Alvin Bragg had brought a case to prevent, to stop or quash a subpoena that was issued by

The House Judiciary Committee, led by Jim Jordan, part of his sort of weaponization of the federal government inquiry, he had issued a subpoena not only to Alvin Bragg for certain documents and materials, but importantly to Mark Pomerantz, the former assistant district attorney in Manhattan, who left after Alvin Bragg became the district attorney, who left

something maybe of in a snit because he saw the investigation into the false business records, which has now been indicted charges. He saw that as being at a dead end. And then he pretty famously wrote a book about his experience. So Jim Jordan subpoenaed him. Alvin Bragg brought a case in court to

quashed that subpoena, essentially. The district court denied that, denied the preliminary injunction that he sought. He took an immediate appeal to the Second Circuit, but right after taking that immediate appeal, he and Jim Jordan made an announcement that they had essentially reached a settlement and the appeal was being dismissed.

So part of the reason we wanted to have Doug here today is to talk through sort of the differences between the enforcement of a congressional subpoena and the enforcement of a grand jury subpoena. Andrew, you and I have talked during previous episodes about when you have a grand jury subpoena and subpoenas.

a person maybe take asserts a privilege during their testimony in front of the grand jury. If the prosecutor thinks, no, no, no, that privilege doesn't apply. The prosecutor can go down the hall to the chief judge and say, chief judge, would you please rule on the, this invocation of the privilege and order the witness to testify?

Well, it's not that easy enforcing a congressional subpoena. If the witness is there in front of Congress and refuses to answer questions, there's not a judge, you know, next door in the House office building that they can go to. And in fact, it's a harder thing to do. And it's something that I kept worked with Doug on in the subpoena to Don McGahn, for example, back

when the House was investigating, you know, potential Russian interference in our elections and protection of obstruction and things like that. So, Doug, talk to us a little bit about enforcing and the challenges of enforcing a congressional subpoena, particularly in the context of Mark Pomerantz appearing before Jim Jordan's committee. Yeah, Mary, there's a whole lot there. And I'm going to answer it. The one thing I wanted to say right up front is, as you know, I...

brought you on pro bono and used a whole lot of law firms, including, I think, four or five former solicitor generals. But I just want everybody, your listeners, to know I never spent a dime of taxpayer money. This was all attorneys who were doing this for free. So,

So anyway, yes. So, Mary, this boy, there are so many issues here. So you asked specifically about enforcement of congressional subpoenas. Now, remember that here, Chairman Jordan, et cetera, they did not bring an enforcement action yet in court. Bragg sued him.

the committee and they immediately therefore ran into something called the speech or debate clause in the Constitution, which says basically it stems from English history when the king didn't like what Parliament was doing, he would arrest them and do terrible things to them. So the framers of our Constitution said we don't want that. As long as members of Congress are doing their legislative duties,

They have absolute immunity, and that's absolute. That means criminal, civil, constitutional violations, they're immune. Very important part of our Constitution. So what that means is you can't sue a congressional committee and say, "Court, tell them to withdraw that subpoena," because that is covered by the absolute immunity of the speech or debate clause.

If Jordan and company decide they want to try to enforce the subpoena, as you say... And that would be, for instance, I'm sorry to interrupt, if Pomerantz refuses to answer questions, for example. Yes, yes. So, Doug, this sort of feels like a who carries the ball. Was it a mistake in your view for Alvin Bragg to sort of go proactively to bring the lawsuit? Or should he have waited to see what Mark Pomerantz did if Pomerantz refused to

appear or to answer questions then put the burden on jim jordan and his staff and the the current general counsel of the house to actually have to sue to enforce the subpoena is that sort of a better legal posture andrew that's a really insightful comment because um on the one hand it's bread from stupidity and ignorance

Wow, are you smart ignorant. Andrew, I don't know whether you can say that Bragg made a mistake or not. The speech debate clause is there. But remember, if Bragg didn't know what Pomerantz was going to do, Bragg's in a very difficult position. You know, Pomerantz could say to Bragg, oh, don't worry, don't worry. I will not show up and I won't provide anything.

But is that a binding contract or whatever? Who knows? So Bragg needed to, in his mind, do something to try to stop that from happening. Now, I don't remember whether he actually sued Pomerantz instead and that he could have done that. He was added as a defendant.

Right. In the case, but it made it clear in the filing that he was there so that the court had jurisdiction over him, that the real party in interest was the House. But also, wouldn't it also—this is maybe—

Less of an ignorant question. But one of the things to your point about Bragg not knowing exactly what Pomerantz would do is that you could imagine Mark Pomerantz saying, hey, Alvin, I need you to take the lead here and to get a ruling because I, as a lawyer and a lawyer,

a member of the bar do not want to be in contempt of a subpoena. So if I say I'm refusing, the enforcement action is going to be based on my contempt. And that could lead to all sorts of consequences that he didn't want to have. Exactly, Andrew. And that is that's precisely the problem. Now, but let's get right to the heart of what you know, the theme that you want to talk about is, you know, if you disregard a grand jury subpoena, as I think it was Mary said, or maybe you, Andrew, you walk

You, the prosecutor, walk down the hall, you find the chief judge of the district and you say, hey, this clown is ignoring a grand jury subpoena. Jail, please. Yes. And the judge issues an order. And that, you know, that's scary, right? Because the judge can put you in jail. He can fine you. And that's a binding order.

If you're the House or the Senate and you issue a subpoena, most people should do their patriotic duty and comply with it. Unfortunately, many of the Trump people didn't, but they should have. But if they don't, that's not self-enforcing in the normal sense that a grand jury subpoena is. Now, a grand jury subpoena, as you know, as we all talked about a moment ago, is not self-enforcing. You go to a judge and you get it. So the House had the option to sue Trump.

to incivil a civil proceeding to enforce its subpoena. And I did that in some cases and did it successfully. But it means that you're actually instituting a civil case in court before a judge, and you immediately then run into all sorts of issues because the Justice Department says the House can't do that. There's no Article Three constitutional jurisdiction for it to do it.

And besides, the House shouldn't be going after members of the executive branch, and they should try to work it out through negotiations. Now, of course, just to make sure our listeners are clear, that example involving the executive branch kind of takes us back to your time when you were trying to enforce against

Don McGahn, who had been a member of the executive branch. Now, part of the argument, of course, that you and I made was he was no longer part of the executive branch at the time. But here, of course, there wouldn't be a Department of Justice to take that position. There's another option, though, isn't there, Doug, before the House goes into court to enforce, which would be to hold the witness in contempt if the witness either fails to show up or fails to answer questions.

and then ask the Justice Department to investigate a criminal contempt procedure. Is that another option? Sort of like what we saw in the January 6th committee. That's exactly right. Both of you have it. Hey, you guys know what you're talking about.

No, we brought you on to say that. Sometimes we're not so sure. Andrew, is the check in the mail? Yes. This is pro bono. That's what I was going to say. Pro bono. You owe me, Dad. What you all have said is 100% right. With one exception, it used to be a long, long time ago, literally about 100 years ago, it's the last time it happened,

The House or the Senate could say, you ignored our subpoena. We're putting you in contempt. And about 100 years ago, the Senate then sent its sergeant at arms out to I think it was Ohio to arrest the attorney general Doherty's brother because Doherty, who later was convicted and in the Teapot Dome scandal.

Because the brother said, I'm not complying with subpoena. They arrested him. They took him to Washington. There was no prison to hold him in. So they held him under house arrest in the Willard Hotel. That must have been really, it sort of reminds me of, yeah, the Hotel Moscow, the gentleman. Gentleman in Moscow, right. In Moscow, yeah.

But so that's one option. Another is you could find the person, but that doesn't do you any good. And getting back to what Mary said, if you're going against the federal government executive branch, the Justice Department takes the position that you can't prosecute – the U.S. attorney cannot prosecute members of the executive branch.

who don't comply. But that was why you said, Andrew, the January 6th committee, the House referred for criminal prosecution former members of the Trump administration, Navarro and Bannon, and Bannon was then criminally convicted. Now, obviously, that only works when it's a new administration, right? The Trump administration wasn't going to prosecute Bannon, etc. So,

That's why if there's a new administration, you can use criminal proceedings, as was done very successfully with Bannon, and it's still going on with Navarro. The problem there is

And by the time that criminal prosecution took place, the investigation was long over. Right. The time delay is, yeah. I mean, on the criminal side, you get to, as Mary said, you walk down the hall and you get an immediate answer, whereas you're dealing with this huge behemoth in terms of moving it around. So, Doug, I have a question for you. What's your take on maybe leaving aside

the district judges some of her language, which I thought was intemperate. But leaving aside sort of like how she phrased things, what was your sense of her ruling? Did you think it was right with respect to Mark Pomerantz, or did you think that there was more of an argument on the other side? I had a couple of reactions, Andrew. One is I want to make very clear right up front

That in this instance, what the House committees are doing in trying to get information from Pomerantz and Bragg himself, etc., frankly seems like just a political stunt. But

Having said that, when it's up to the House, it's not up to the courts in general to decide what is appropriate for a House investigation or a Senate investigation. The courts will very, very rarely step in quite properly. They leave that to the judgment of the House. But here, again, gee, it really seemed like a political stunt. However, whether there's jurisdiction over this is...

Probably the answer is no, because of the speech or debate clause. But the other thing is that, you know, if you're going to bring something like this, the Congress has to have a legitimate legislative activity here. Supreme Court has said, if you can legislate, you can investigate. And this is something that I've said and was quoted in the New York Times as saying, you

The 14th Amendment, Section 5, says that Congress gets to enforce the 14th Amendment, to enforce meaning to pass laws to enforce it. So Congress gets to investigate this.

whether a state or local prosecutor is violating somebody's constitutional rights. And that's right there in the Constitution. The 14th Amendment gives all sorts of rights and has them applicable to states, and the fifth section of that says Congress can legislate to implement the 14th Amendment. So I think Bragg made too broad an argument in making it seem like, no, under federalism,

U.S. Congress cannot investigate a local or state prosecutor. That's just absolutely 100% wrong. However, I think Bragg was right in saying this investigation is actually just bogus. Politically motivated, yeah. One of the things that Bragg did that was totally right is unlike people like Navarro and Bannon, he didn't just blow off the request from – he said, I'll talk to you.

I'll talk to you. And that seemed to me to be one, the absolute correct patriotic thing to do, but two is smart. His people obviously thought this out and that was really smart to say, we'll talk. And then guess what? They reached a compromise. And that's exactly how this system has worked over many decades and why there are almost no court cases involving these issues. Because unlike the Trump administration,

Most administrations and most Congresses work it out over time. It takes a lot of compromising. But at the Justice Department, I was involved in any number of these. Mary, you probably were too, where you talk and you work it out. You don't just say, no, we'll ignore any subpoenas.

So this is such an interesting area, and it really goes to, to me, the big picture of the rule of law, because sometimes the rule of law does require a result even against the position that you really want to see win, but you know that the rule of law doesn't really permit it, or certainly there's the judge has discretion to find against you. I wanted to quickly

just focus on one thing, Doug, which I saw in thinking about your coming on, which was that you were the general counsel of the House

I think, while the January 6th riots were actually going on. And I think that means you might have actually been... In the room, as they say. In the room. Right. As Lin-Manuel Miranda said, you were in the room where it happened or in the Capitol where it happened. And so I think you were, I think, there that day. Yes. And not only was I in the Capitol, as Mary said, I was in the room. First of all, I was in a room with...

Representative Raskin before it started going with him over the speech that he was going to give. But then, yes, I was in the House chamber when the insurrection hit. I was part of a team of people that were assisting the members of the House in responding to claims that there had been fraudulent elections. I know, Doug, shortly after it, I remember you sent me a note, an email, like,

detailing really the terrifying experience once the writers broke into the Capitol. Maybe you can share a little bit of that. Right.

Sure. Just briefly, there's that famous photo that I'm sure you've seen where a big bookcase has been shoved in front of the doors, the back doors of the House chamber. And there are some, I think they're plainclothes Capitol police who are pointing guns. I'm not in that photo. I was just to the right of it, on the right, because, you know, we heard people banging on the doors, trying to break in. They didn't break into the House, unlike in the Senate.

It was stunning. It was terrifying. It was just so amazing that this would happen. Kudos, by the way, to the Capitol Police and the Metropolitan Police that they did not just start shooting. Obviously, there were some fatalities among Capitol Police, and there was the fatality of the insurrectionists who tried to break in. But imagine how much worse it would have been.

If the Capitol Police and the Metropolitan Police had just started shooting and imagine how many people would have been killed. So, yes, it was terrifying, especially when they told us to reach under our chairs and take out gas masks because they were going to probably start using it.

And then I'll tell you one of the most terrifying moments was at some point the house chaplain stood up and gave a prayer. And I thought, oh my gosh, this is serious. At that point, the Capitol Police said, okay, we've got a route out to safety. You have to move fast, which worried me a bit because you might have noticed some of the members of Congress are not real young.

Um, but so I gathered up a massive amount of material that I had with me and, um, staggered out carrying all these binders. I was one of the last people out of the house chamber as I was leaving. Um, I heard things happening behind me and what's called the speaker's gallery. And it turns out later I've pieced it together from the videos. That's when, uh, the, the rioter who was trying to break in while we were exiting to safety was shot and, uh, and killed.

So we exited, we made it into safe location. And I'll just say one thing about that. I was out of the frying pan into the fire. As you remember, this was, COVID was already raging. We were in the safe room, a whole lot of us, very close together. And there were a batch of, I'll say it, Republican members of Congress who were standing around talking and laughing.

Other members of Congress kept going up to them and saying, hey, we have a lot of masks here. We got plenty of masks and we got water. Please put the masks on. And they just derisively said no. And they laughed. And I remember sitting I was about 10 feet away from these people. I remember thinking, oh, my gosh, I've escaped this riot and I'm going to die from covid now.

Fortunately for me, I was able to leave and go to another place in the safe area where I could be. But it was terrifying. And Andrew and Mary, one of the proudest moments of my life was to be part of. I was so proud of America.

That even though our democracy was hanging by a thread, we went back, I think it's about 8.30 or so, 8.45 at night, and they finished. The members of the House and the Senate finished, and the then-vice president finished, and we preserved democracy. And I just wish that so many more people understood how close we came to losing our democracy that afternoon and that evening. It was horrible.

It was hanging by a thread. So, Doug, there's so many heroes on that day. Obviously, there are villains as well, but the number of heroes is remarkable. I think their comment about the masks is...

is so telling because I personally just see such a huge connection between that sort of anti-science strain and the anti-law strain, which is people who are just not recognizing what the law requires or what science requires and just living inside a bubble as if all of that could just be changed because you think X when in fact the answer is not X.

So I just see such a huge connection between those two. And obviously you were doing Yeoman's work as well, and, you know, and a part of, you know, what actually makes America great. May I say one more thing, Andrew? Do we have another moment? Yeah, of course. The one other thing that is, to me, really important is we've now heard that many of the insurrectionists wanted to bring weapons to

And they knew that D.C. had strict laws against it. So they stored their weapons, very powerful weapons, over across the river in Virginia. To me, this – and Mary knows this even better because she was part of an after-action committee looking to see what happened. Imagine if those weapons –

the dc had not had those laws and those weapons had been very close to the capital if somebody could have run to a hotel room and run back in 10 minutes with some of those weapons imagine how much worse this could have been and so again thank goodness that dc had those restrictions imagine if it was a place where you could open carry you know assault style rifles right like so many places in america um

you indicated earlier the restraint of the Capitol Police and the Metropolitan Police to not open fire. But if they would have been facing weapons like that, it could have been a very different scene. So we're, I think, all really grateful that that's not how it ended up. Those really were the heroes, weren't they? Yes, absolutely. So, Doug, thank you so much. Mary, as always, this is To Be Continued. Doug, we'd love to have you back. And thanks so much for taking the time out to speak with us.

My pleasure. 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. 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 the series. Thank you.

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.