Hello, and welcome to another episode of Prosecuting Donald Trump. It's Tuesday, October 17, and I'm Andrew Weissman. I'm here with my co host, Mary McCord. Mary, it's it's so nice to see you. There's so much to talk about. I'm sitting here in New York City, and what's going on right now in New York City is that Donald Trump is attending the civil trial with respect to seven counts brought by the New York Attorney General. And in case that's not enough to fill his time, this evening he's scheduled to be deposed in another civil case brought by Peter Strzok, former FBI agent, and Lisa Page, a former DOJ attorney, in connection with their civil. Suit against the Department of justice, where Donald Trump is a potential witness and was ordered to be deposed by Judge Amy Bertman Jackson, a DC. Judge. But with all of that, that's not even what we're talking about. We're going to spend most of our time talking about what happened in DC yesterday with respect to the ruling by Judge Tanya Chutkin, what's referred to colloquially as a gag order. But you and I like to say it's about bail restrictions, but this is the second time in, I think, less than two weeks where there has been a court order imposing restrictions on the former President of the United States.

Again, it's a little mind blowing, but these are restrictions on what he can say.

And then we'll get into the upcoming state election interference trial in Georgia for two of Trump's alleged co conspirators. Listeners will recall that's the sprawling Rico indictment that involves 19 co defendants and two of them, Kenneth Chesbrough and Sidney Powell. Kenneth Chesbrough being a lawyer who in many ways was one of the architects of the fraudulent electorate scheme, at least as alleged in the indictment. Sidney Powell, who was a lawyer who brought many different lawsuits challenging the results. Of the election after 2020 and also, as alleged in the Georgia indictment, was involved in the scheme to actually seize some voting data from the machines in Coffee County, Georgia. So these two asserted their rights to a speedy trial. Their trial begins October 23, which is next Monday, and the first jurors begin to sit and answer jury questionnaires this Friday. So there's a lot going on in terms of we actually do have the first criminal case involving Donald Trump, but this particular trial will not have Trump at the table. It's just two of the 19 defendants that are going to trial now. Nevertheless, it'll give us a real window into the state's evidence when it comes to the multipart election fraud scheme to override the voters in Georgia.

I know it's sort of amazing, Mary, that this is the so called January 6 case, and the jury selection begins a week from today. So, again, just to repeat to everyone, we are on the doorstep of that. And although Donald Trump is a co defendant, he's not on trial in this case, but there's going to be tons of testimony about what happened, and that is getting kicked off because as you said, these are the two defendants who didn't waive their speedy trial rights. They wanted a speedy trial. They're getting it. Yeah. So that's going to be fascinating, and I'm so glad we're going to talk about it because I feel like it's not gotten enough attention, and so it's really important for people to understand what's happening in that case. And finally, Mary, I know it's been a long time coming, but I think we'll have time for one really interesting mailbag question. I'm so glad we can get to it. So let's talk about the I'm going to just use the term gag order because everyone's been using it and I've been beaten down. I'm going to quickly give you my take on what I thought was going on here, because the government had filed a brief that was very focused on a rule in DC, a local rule about protecting information that could sort of pollute the jury pool because the jury is supposed to be kept relatively pristine, so they can just base their decision on the facts as they appear in court and the law as instructed by the judge.

And so you don't want the parties to be talking about the case and their views of the case and the witnesses, et cetera. So it was very focused on that information. But it was interesting because I thought that the way the judge ultimately came out, where she sort of I won't say she really split the baby because that's not really fair, but she seemed very focused on violence and very focused on something you and I have talked about, which is she said, you know what? I agree with the government. If you want to talk about Joe Biden to affair thee, well, go ahead. If you want to talk about the executive branch and the Department of justice as institutions and what they're doing wrong and how this is politically motivated, be my guest. But where she drew the line was what she said was language that implicitly called for violence. And so she was very focused on language with respect to the court staff, their families, the witnesses, their families, the prosecutors, their families. And I think she just looked around and thought about what the judge in the AG's case in New York did just a couple of weeks ago, very much focused on language that could incite violence.

What Mary, you have taught me is the call and response problem with the former president's language. So I don't know if that was your take or you had other thoughts about what she did.

Yeah. Now, I don't want to suggest, though, that Judge Chuck can sort of sue Espante decided to focus on violence because the government, even though it relied on Rule 57 C, it did. And we had, I think, at least one or two episodes where we talked about this, the government did lay out multiple examples of people who had been disparaged and had inflammatory statements made about them by Mr. Trump, resulting then in threats to them and sometimes to their families. Right. So the government definitely had emphasized this.

But I think to your point but.

Was it the gravamen of the motion? Yeah, Andrew and I are still having a good time figuring out what is the correct pronunciation, because we found multiple different dictionary pronunciations. So there you go. But as I noted, I have had listeners write to me twice about that word. So, anyway, the thing to your point, I do think that the way that the judge made her decision here, and ultimately she's going to issue a written order. But she did, as you just said, say she would limit the former president's speech when it came to court staff and their families, prosecutors. Prosecutors families, but not when it came to the Biden administration or Joe Biden, or the Department of justice or even the District of Columbia, writ large. And to your point about violence, twice, I read the entire 86 page transcript last night, twice Judge Chuckin referred to and said to Mr. Larrow, and that was Mr. Trump's attorney. Aren't these comments, these remind me of will no one rid me of this meddlesome priest? Right. And this is a reference to King Henry II of England, who said this about the Archbishop of Canterbury way back in the eleven hundreds, after which four knights set off and did in fact, rid the king of that.

Didn't I say that on this podcast? I can't remember.

You may have. It wasn't podcast or somewhere.

It's been one of my favorite things when I've been on air.

But you can tell this is what she was thinking of because Mr. Laura was repeatedly trying to suggest, and I think this was a disservice, frankly, to his client. He gave no inch. He gave no inch at all, other than a few times saying, well, under this hypothetical you're giving me, your Honor, I would advise my client not to say that. But he never, ever said that would actually be a bridge too far. He never really admitted that anything short of a direct threat would not be protected by the First Amendment. And the judge kept reminding him, the First Amendment is not necessarily the standard here, Mr. Laurel, because your client is a defendant in a criminal case for which an indictment has been returned by probable cause, and defendants in criminal cases can have some infringements on their First Amendment rights. You've already, mr. Lauro agreed that in his conditions of release, he can't make threats. So you've already agreed to that, but Laurel really would know when the judge would press him. Aren't some of these different statements by Mr. Trump very much like, will not someone rid me of this meddlesome priest?

He just really resisted it. Like I said, I just don't think he gave an inch on that. And there's just no way that everything that Mr. Trump has said should be permissible when you are a defendant in a case, and especially where you have a microphone like he has and a history of that call and response. And it has happened even since this case was filed right the day after he said, if you come after me, I will come after you. We had a woman make a death threat against Judge Chuckin herself. And I will note that Judge Chuckin did not say she would be ordering Mr. Trump not to make disparaging and inflammatory comments about her.

It's so interesting because I've talked about Amy Berman Jackson in the Roger Stone case and how I thought that Amy Berman Jackson again, this is just an opinion may have been more lenient with respect to what he did. Because it involved her, the court itself. And she could make her own decision about what protection she needed and wanted to bend over backwards. Whereas I think if he had done that with respect to the court staff or a family member or something, it might have been very different. The former president has said that he's going to appeal this. It's obviously his right to appeal it. I don't think he's going to get a stay pending appeal, meaning that the judges there's no reason to yeah, the judge's oral ruling will stand. Obviously, there'll be a written decision that I would expect would come out relatively soon, laying out exactly her reasoning and perhaps a little bit more detail about what he can and cannot do. And then there'll be an appeal of it and we'll see how I think.

It'S worth noting because we've talked before about how a defendant in a criminal case doesn't get to appeal every ruling against him. Most he has to wait until the end of the trial, or if there's been a plea or whatever, has to wait till the case is basically over to appeal. But because this order is actually going to be imposed as one of his conditions of release. Conditions of release are appealable. And that's why this would be appealable. And actually when I said there'd be no reason to issue a stay, I was thinking you were talking about stay, like, of the entire case, not stay of the order. Stay of the order. I mean, I think you're probably right, it won't happen. It's not beyond the realm of possibility, depending on what panel on the DC circuit would get the motion and whether they would feel like they'd rather stay that order until they get to fully look at it. But there's no reason it should slow down the case. I've seen some speculation that this could delay the trial. This has nothing to do with the proceeding on the trial. There is one other point I want to make before we move on, because I mentioned that I wasn't sure Mr.

Laro had served his client well by taking such an extreme position. I think he would say he did serve his client well. And I think Mr. Trump would probably say he served me well because it seemed pretty apparent that there was again, as we've said in other times when there have been arguments before Judge Chuckin, that Mr. Laurel, in many ways, seemed to be speaking for a different audience, not for Judge Chuckin. In fact, at one point she said, obviously you have an audience other than me in mind. He then went on multiple times, said, this is the first time we've had a sitting administration prosecute a political opponent. He talked about Mr. Trump being entitled to speak truth to oppression and went on a multi paragraph really tirade about what does someone do in the face of oppression? What kind of language do you use in a system that now is bordering on totalitarianism and authoritative actions that are being taken? What does a citizen say in countries that are veering towards tyranny? These were things Mr. Laura was actually saying as part of the argument, which did, of course, prompt the judge to say, let's tone it down a bit.

So I think know, I may think as a legal matter that he might have served his client better to not be so extreme in his position, but as a political matter, which, reading the transcript, this seemed more like a political argument to me. And Judge Chuckin had to say multiple times, the politics doesn't come into this courtroom. Mr. Laurel.

So those almost verbatim, were the same arguments that I heard from Paul Manafort's counsel with the same admonitions from Amy Berman Jackson. But it's also such an example, as you said, Mary, of projection, which I'm not the first to make that comment about Donald Trump and sort of the tactics he uses. Finally, just before we move on, Tanya, Chuckin did say repeatedly, this date is firm. It is not changing. And, no, you can't keep trial date making these that's what we're talking about. Yes, the trial date of March 4 is not changing. It is not going to change because of politics. It's not going to change because Donald Trump keeps speaking. That cannot be the remedy, which, by the way, John Laura proposed, is the remedy of my client speaking this way is that the trial should get put off. Like, exactly how that's to me, is such apples and oranges. There's just no cause and effect. There more prosecuting Donald Trump. DC gag order in just a moment.

Chen Saki have you ever seen the House this dysfunctional? Rachel Maddow if winning the election is his plan to stay out of prison, what happens in that election if and when he does not win it?

Monday's back to back talk about the.

Stakes of this back and forth. Given Trump's behavior, what do you make of the statement from Hamas why they're doing it, what do you think it means?

Inside with Jen Psaki at 08:00 p.m. Eastern, followed by the Rachel Maddow Show at 09:00 p.m. Eastern. Mondays on MSNBC.

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See you there's.

Okay, Mary, let's turn to the topic of the Sydney Powell Kenneth Chesboro trial that's upcoming, truly imminently in Georgia. It is so fascinating. They are both lawyers, both going to trial. And one of the things that understandably, even for people who follow these cases very, very closely, there have been a slew of pretrial motions filed by numerous people in the criminal case, the 19 defendants that have been charged in state criminal court. But Sidney Powell and Kenneth Chesboro obviously have filed a lot of motions from everything involving the jury questionnaire to the Supremacy, to the attorney client privilege, First Amendment, a whole series of arguments that were made. I think they're now actually almost all under advisement. And so that means that the judge I think our guess is that between now and Friday, we'll be getting a whole series of rulings from the court.

At least on the motion to dismiss completely. There are still others pending that I don't think have been heard. But the judge did say, I think, yesterday that he's got everything that he needs on the motions to make rulings. So if he hasn't heard argument on each, he probably feels prepared to rule on the papers. Now, he has denied some motions to dismiss early on, even before the hearings last week. But last week he held hearings two days in a row on some of these motions. Motions to dismiss the indictment on the grounds of the Supremacy Clause, the First Amendment, motions to dismiss count One, the Rico count, and also a motion to exclude legal memos written by Kenneth Chesborough as being basically privileged against being introduced because of attorney client privilege. Those are all things he has yet to rule on. And my understanding is that at the end of those hearings, I mean, some of those I think he will rule on before trial. And like you said, we'll probably start seeing some rulings coming out this week, or at least before Monday. But some, I think he was indicating you're premature. Right.

We've got to hear more from the evidence before I would be able to rule on this. So some of that I think we could see get renewed later on.

Yeah, because I think there are ones where he said that's really a fact issue. So I can decide that after I've heard the government's case. So it's sort of denied now, but you can renew it later. So I thought there were two things that might be interesting to talk about. One is this case is projected to be five months long with about a two week break around the December holidays. But five months is incredibly long. I know that the state wants to tell its story and they want the proof to come out, but I'd be really interested in your take. I always thought a long trial benefits the defense, and keeping a case as short as possible helps. Oh, I've got an anecdote coming, Mary.

Okay. All right.

When I was doing the Giganti case, giganti was the boss of the Genovese family, and we were in front of Chief Judge Weinstein, and he took over the case and said, how long is your case going to be? And we said, It's going to be two months. And he said, no, it's not. And we'd been in front of him a lot. And so we said, okay, Judge, how long is our case going to be? And asking him the question, he would have thought about it. He said, Your case is going to be let's see. You said two months. Your case is going to be one month. And the best thing that ever happened to us was just saying that and streamlining it and really thinking about, what do we need to prove our case?

Because how many people can take months and months and months, right. To set aside to be a know it really narrows the pool quite significantly. I think two things are going on here. The Fulton County DA's office could try to focus primarily on the parts of the overarching conspiracy that most directly relate to Kenneth Chesboro and Sidney Powell. Right. They are not involved in every single overt act listed in the lengthy indictment. They weren't necessarily involved in every single aspect of the multi part scheme. Right. It was the fraudulent electorate scheme. The pressure on state legislators, the pressure on election officials, the pressure on Ruby Freeman and Shay Moss to somehow admit that they had actually miscounted or fraudulently tabulated the ballots, all of these things are multiple parts, but this is their first chance out of the box. They have charged an overarching conspiracy of which these two that are alleged to be co conspirators, so they have a right to put on evidence from the entire conspiracy, because a conspiracy means everyone's sort of part of the overall scheme. I'm guessing that they want to do that because this is their first opportunity out of the box to show the evidence.

They probably are hoping that that will encourage some others to want to resolve the case short of a trial. When they see the strength of the evidence and it's part of the story. Right. They don't want to risk that. If they just put on the pieces that apply to these two, that a jury will kind of feel like they're missing something. There are holes in it. But I agree with you that five months is a really long time, and then when you have a couple of weeks off for holidays, it's hard to keep one's attention that long. I handled an appeal of a nine month Rico trial, and believe me, reading the transcript of nine months of trial, I mean, that took a month, basically, no kidding. Reading as fast as I could, but it resulted in convictions all the way around. I think there were six codefendants, but that also involved 17 murders, multiple different other violent crimes, and there was just so much evidence to put on. I still think it was probably too long, although it did end up in a successful result for the government. But I think it's asking a lot of our system to have a case go that long.

I agree. So it'll be interesting. That's something I think we'll talk about with you all as it goes forward. Keep our eye on the sort of judgment calls that are being made. It's obviously a delegate thing. I don't mean to be second guessing them in advance, but it is something I guess we're setting out for you. Like, there are a lot of tensions here as to one is too much and is less more and is more or less. The other thing that we'll want to talk about as we see the proof is the sort of strength of the case and what the defenses are. And I think they're pretty different. Even though we've got two lawyers, they operated in very different ways. And Kenneth Chesborough seems to be trying to say as his defense that he really just operated as a lawyer and he gave legal advice and maybe you disagree with it and maybe got the law wrong or maybe it was aggressive, but none of that's criminal. He was just acting as a lawyer and giving his best legal advice. That seems to be at least pretrial what he's saying with Sidney Powell.

She may want to do that, but there are aspects of the charges that will make it harder for her to try and put that mantle on, as that was solely what she was doing. And she is definitely the Sidney Powell of it's. Time to release the So, which is.

Not a legal term, by the way.

Yes. That is not something they teach you in law school.

There's no rule when you release Kraken, how many days before trial?

Right, exactly. Right, exactly. Or before an election, either true or post election. So I think it's going to be a very different cases to her. And my quick sense, although I'm going to be very interested, is that in how it plays out? Is that just factually? She just has her fingerprints on many more things. So it's just going to be a fascinating case. We really do, though, want to introduce you all to this issue, and we're going to spend more time going through in a little bit more depth the arguments. And once we hear the openings. We can really go through what we thought the strengths and weaknesses appear to be from that and what to keep your eye out for.

Two points I want to make before we move on. One is on Friday, jurors will show up to start answering questionnaires, and this is not uncommon in a significant case like this that's expected to go a long time. It's a way to kind of weed out some potential jurors earlier on by having them answer a series of questions so that when you actually bring a veneer veneer being the word for a large panel, a group of people into the court on Monday to start jury selection, you have at least done sort of a preliminary screen. So that's not uncommon. And that's what's happening Friday. And yesterday, the parties were arguing over the questions to put on that questionnaire, because I know a couple of the questions that were proposed by the defense were things like, I think, MAGA Republicans are mostly made up of radicals and white supremacists. Right. And there was argument about essentially isn't that inappropriate as a question because you're essentially trying to ask jurors to prejudge things about the case, even though obviously this is not a case about white supremacy explicitly. So, anyway, lots of arguments about the questions to be asked on the questionnaires.

And again, this is one where the judge took it under advisement. The second thing that's happened on Friday that I actually find fascinating, and I know we don't have time to get into it, is Judge McAfee is allowing the defense here to actually talk to two of the grand jurors in this case. And grand juries operate in secrecy. As we've discussed before, it is highly unusual to speak to grand jurors, and he's letting them do that under his close supervision. And I think with questions to them pre cleared, as I understand it, because Mr. Chesboro has made an argument that this grand jury so quickly returned the indictment that he, I think, suspects that they didn't actually read the entire indictment. And he wants to question him about that to ensure, essentially, that his right to a grand jury actually returning the indictment, that's a constitutional right was actually fulfilled. I did read the judge's opinion saying he would allow this limited questioning. It's something I've really never seen before. And so I'll be interested to hear what comes of this on Friday. And the timing is interesting, right? Because this questioning is happening right at the beginning of the trial.

Yeah. So it's super unusual. It is limited to the two grand jurors who said that they were willing to speak. The problem with that is that if they say things that then lead to other people needing to be interviewed, those people didn't agree that's.

Right.

So to me, it's a little bit.

Of opening a can of worms, I think.

A can of worms that also is like, you're recording these people different rights. I'm old school. It's like everyone needed to be treated the same. So I was surprised by this. It could turn out badly in terms of where it takes the court to on the other hand, the judge does seem to be showing relatively good judgment and fair.

Right.

So it'll be interesting to see how he hands it if it does seem like it's going to go off the rails. Mailbag.

Okay. Mailbag. Mailbag.

All right, somebody called in with a question. Let's go do it. Hi.

My name is Tony Allen. I'm wondering if it's possible for the courts to force Donald Trump to pay for security for the people his statements put in danger. Thank you very much. Hope to hear about it on podcast.

Bye. So I have two words for you, Mary McCord, and you will never guess what they are. Bobo Malpezo. Louis bobo Malpezo was a Colombo associate who we prosecuted oh, my many years ago in the Eastern District of New York, and he had threatened various people in connection with the case and their family members, and in connection with his sentencing. Then Chief Judge Jack Weinstein, at our request and under a specific statute as part of the sentence ordered that he pay for the costs that the government incurred in putting our cooperating witness in the witness protection program because we could link the need to do that to move the witness and his family to the witness protection program to the specific threats made by Bobo Malpezo that was then appealed and affirmed by the Second Circuit. And so there is precedent for that. We obviously had to make a showing. We had an agent testify and present evidence, and the judge was very aware of the threats, and we put in evidence about the costs, and the court ordered it. So there is statutory authority in connection with sentencing to have a defendant pay for those kinds of costs, obviously upon making the necessary showing to the court.

Yeah. And I think in some ways, it's an easier thing to order as part of sentencing when the crime alleged has a victim. I don't know if that's how you would characterize the case that you're speaking about. Federal case in DC. That's related to January 6. Alleges three different conspiracies, sort of with voters as the victims and the American people as the victims. But it's a little bit different than something that directly alleges threats against people. So it would be, I think, a little bit even more of a stretch, probably, in a case like this. Although if there were violations of these new conditions of release set by Judge Chuckin with respect to statements made about particular people, then we might be in a different situation. Thinking about what would be a remedy for that violation of the conditions of release.

Absolutely great question. And keep them coming, because we will definitely get to more of them. Mary, there's. So much that we haven't talked about. So I can't wait to talk more about, especially the Chesboro Powell case, because so much is going to be happening this week and the case at the very latest. The openings will happen by November 3, but it could happen before then if they get a jury. So we'll keep an eyes on that, and definitely we'll dig in more with all of you. Can't wait to talk to you about it all. Mary, if you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod as we just did today, or you can email us at prosecutingtrumquestions@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 and Ivy Green are segment producers. Our technical director is Bryson Barnes. Katherine Anderson and Cedric Wilson are our audio engineers. Jen Maris Perez is the associate producer, aisha Turner is the executive producer for MSNBC Audio, and Rebecca Cutler is the senior vice president for content strategy at MSNBC.

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