Transcribe your podcast

Hello and welcome to Prosecuting Donald Trump.


It's Monday, April eighth, and it is in the afternoon, but just before the path of almost totality, where I'm in New York and Mary, welcome. You're in DC.


Dc, we're supposed to get 87%, so I think that's probably about what you're supposed to get in New York.


That's about right. We're going to record this, and then it's lights out.


Yeah, then we're going to put on our Eclipse glasses and we're going to run outside and watch the Eclipse.


Which is exciting.


We usually record on Tuesday, so people are like, What are you guys doing on Mondays during an Eclipse? Well, Andrew is going to go gallivanding off halfway around the world tomorrow, so we had to do this today. Isn't that- You know what?


Between the earthquake and the path of totality, I'm getting out of dodge. There's a lot on our plate. But the first thing Mary and I are going to do, but I'm going to do it since you did it last week, which is we're going to have a shameful plug for our podcast because, one, this is, I think, a year and a day, essentially. It's like, we have been doing this podcast for a year. It has been. So thank you, Mary, and thank you, listeners. It's been wonderful.


And thank you, producers.


Oh, my God. They're the best. But obviously, leaving Mary the incredible experience of being able to do this with you, as much as we get lots and lots of feedback from our listeners, it's really wonderful to know that there are people who appreciate it and ask really interesting questions and give us ideas about what we should be talking about. And all of this is to say, in addition to having done this for a year, on our first year, we got nominated for a Webby Award. And if you do like the podcast and want to vote for us, you have a little bit more than a week to vote for us. And the link to the Webby Award nomination and voting is in the show notes. But enough of the Shameless Plug. Let's get down to work. There's so much to cover. Mary, what's on the agenda?


So first, we're just going to spend a little bit of time because we are literally today one week from the start of the trial in New York. This is the district attorney, Alvin Bragg, the case that he has brought that is an election interference case from the 2016 election, where the allegations are that Mr. Trump paid hush money to Stormy Daniels. We're going to start by really giving a bit of a primer about what are the offenses, who are the players in this, who are the expected witnesses, and some other things that we also are seeing in a last-ditch effort this week by Mr. Trump to try to avoid that case actually getting to trial. Next Monday. Beyond that, we will also, we have not gotten a chance to talk to our listeners since we had the somewhat explosive filings in response by Judge Cannon in the Mara Lago case last week. We'll talk about that. Then, of course, we'll give a little bit about what we're looking out for, which is we are really just two weeks away from arguments in the US Supreme Court on a presidential immunity, and there is, of course, an appeal in Georgia taking place.


We'll hit those things briefly. But let's start with New York, Andrew.


Sure. I thought one thing to start with is to talk about the people on both sides, to talk about who the defense lawyers are and who the prosecutors are, just so people have a sense of it. This is maybe the beginning of we're going to try to have much more intensive coverage of what's going on. To say this is unprecedented, this is the first criminal indictment of a sitting or a former president, and it will be the first to go to trial, somewhat fitting. Let's start with the defense lawyers. It's an interesting group. There are two main defense lawyers. One is Todd Blanch, and the other is Susan Necklace. Todd Blanch is somebody who's a former federal prosecutor in the Southern district of New York. He then has been doing corporate defense work, which is usually not individuals. It's usually company cases. He was at two different law firms. But then when he took this case, he went out on his own, and he has his own law firm. And that has its own unique challenges when you are solo and are representing principally one person. You obviously can do a great job and be wonderful, but there are some unique challenges and pressures.


One notable thing is he is not known as an individual defense lawyer who has done lots of trial work on the defense side. It is a very different skillset. I know when I made that transition, it is very much a different world. Obviously, it's helpful to be a trial lawyer and know your way around the courtroom, but this will be really relatively new for him. It's also particularly new for him because, as I mentioned, he was a former federal prosecutor, and this is in state court with state law. Let me just then mention this. The second person who is on the defense team is Susan Necklace. She is a former prosecutor from many, many, many, many, many years ago, but she has really made her name and cut her teeth being a defense lawyer. She is extremely well known here in New York and extremely well respected. I have dealt with her as a defense lawyer. I've dealt with her both when I was a prosecutor and she was on the defense side, and I've also dealt with her when I was a defense lawyer and she was a colleague. She's just an exceptionally good lawyer.


I have said this before for something for people to keep their eye out for, which I don't think I have ever seen. There are submissions that are made by the defense team for Donald Trump, where she has not signed the submissions. And Mary, in all my years as a prosecutor, which is over 20, I know you beat me on that. Barely. I have never seen that.




And there's a story there, but Susan Necklace is also ethical, and she is not going to tell us that story.


The closest that I've seen was actually during the Trump administration, when the people you would have expected at the Department of Justice to sign pleadings filed by the United States government, there were several cases where the names of the people who should have been signing were not on those briefs, and it was political- But those were prosecutors. Yes. No, it's different. Yes, that's right. It's different than your example. I'm just saying in what I think a lot of us interpreted, those of us, particularly former DOJ attorneys, is interpreted as something of a protest move to say, I may be the chief of this division, and normally I would sign this brief, but I'm not going to sign this brief.


I mean, there were prosecutors who quit and left the Department of Justice, and then there were some who also would not sign.


This included civil cases as well as criminal cases, civil cases where the positions being taken by the Department were things that some of the Department attorneys just couldn't abide by. That's pretty unusual in the department. Yes, and I do not know these attorneys. I mean, you in New York, these are folks you know well. These are not attorneys I know other than seeing on various cases. So we'll see. It sounds like Susan Nicholas is probably the one who's got more of that defense trial experience.


Yeah, but it remains to be seen what her role is. And so that's another thing that if you're asking the second thing I'm keeping an eye out for is what do they give her to do? And I'm just going to leave it at that as to whether she is given a central role in cross-examination and also just informing the strategy in terms of a... Because a lot of times the best legal strategy may not be the best political strategy and vice versa. It'll be interesting to watch that and keep your eye on those two main players. Should we turn to the prosecutors?


Yes, absolutely. You know them better than I do, too. This is your city.


Well, one of them, you may know Matthew Calangelo, because he has been in the DA's office, but he also worked in the Department of Justice and then went back, roughly about a year ago, to Bragg's office. I don't know him personally, but his reputation is stellar, and he came back on this team. There are other people, Susan Hoffinger, who is a very well-known lawyer and very senior in the district Attorney's office, and She worked on the Trump Organization criminal tax case where there was a conviction. She's steeped in this area, and she's just another impeccable lawyer. I think she and there's the battle of the Susan, Susan Hovinger and Susan Necklace. I think they have a very good working relationship. I think it's something we've said. One thing that will be really lovely here is that you have good lawyers on both sides, which is what it should be. I want to point out one person, Joshua Steinglass, who was also on the Trump Organization case, and he is a trial lawyer, trial lawyer. I have heard this from so many people. I don't know him personally, but he is not a so-called white-collar lawyer.


He did murders and gang cases, the thing that you do usually in the DA's office.


In the DA's office, right.


But by all accounts, and I've heard this from prosecutors, and I've heard this from defense lawyers, he is one of those people who's a natural in the courtroom. Just since I personalized everything, I am not a natural in the courtroom. I had to learn how to be a trial lawyer. It's still, let's just say, a work in progress or an acquired taste.


Yeah, that's hard to believe. But clearly, some people, that's where they're at home. Yeah.


So comfortable and has such a good rapport with witnesses and jurors and judges and defense counsel. To my money, I'm not trying to denigrate anyone else, but he is somebody to keep your eye on in terms of what he handles and how he deals with it. I'm particularly interested in who is going to put on and present Michael Cohen, who is going to be a very difficult witness, and I'm interested in who's going to do the jury addresses. As you know, Mary, there's an opening argument and there's closing arguments. They're very, very different skills, and it'll be interested to see who does what.


I'm interested that you said an opening argument and a closing argument because I am very much one of those adherents. You're right.


You should explain why that what I said is really wrong.


Yes. So the real legal parlance is an opening statement and a closing argument. Now, people slip up on this all the time. It's one of my little pet peeves there that I always.


No, but you're right.


Because opening statement, of course, the prosecution and the defense, they're telling the jury the story of the case and what they expect the evidence to be, but the evidence hasn't been submitted yet. Technically, it's not the time to make arguments about the evidence because you could get yourself in hot water if you promise up some things and make arguments about them, and you don't actually end up proving those things up in evidence. It's also supposed to be a nod to the fact that we're starting from the point where every defendant is presumed innocent until proven guilty. It's really an opening statement, an opening address. Whereas at the end, that's when, boy, the gloves are off. I mean, there are rules, but the gloves are off in terms of everything that's come into evidence, both sides are making arguments, arguments about why that evidence supports in the case of the prosecution or doesn't support in the case of the defense guilt.


Let me give you an example of what you can say and what you really aren't supposed to say in opening. What is an improper argument? Now, having said that, by the way, a lot of judges allow a lot of leeway, particularly on the defense side. But If you wanted to argue why a particular witness is credible, that's really left for closing. If you wanted to say, Oh, they're corroborated, or listen to what they said, you'll see that they didn't take an opportunity to gild the lily. They kept within what they knew. Look at the agreement they have. It gives them incentives to tell the truth and disincentives to not. I mean, all of those are arguments, as opposed to, Mary, what you were saying, which is you get to say, We expect that Michael Cohen will say the following. Exactly. It's just laying out. People used to say it's a roadmap of what we expect the evidence will be. Now, obviously, there's a fine line because you get to say, We expect Michael Cohen to say this, and then we also expect there'll be significant corroboration. Yes, that's right.


It's just about how you phrase it. The fact is you're wanting to be persuasive. You want the jury, after they hear your opening, to already be on your side. That's what you want as a prosecutor or a defense attorney. Okay, let's move on, though. Let's talk a little bit about what we expect in terms of the witnesses, because I think this is where it's going to be really interesting. And I think it might be fitting to just do a little bit of a recap about what the factual allegations are here. And they start all the way back in 2015, when the head of American Media, David Pecker, got together with Mr. Trump, and I believe Mr. Cohen as well at Trump Tower, and they talked about a strategy of catch and kill, where Pecker and his company were willing to be the eyes and ears for Mr. Trump's campaign so that if they learned of information that someone was going to come forward with, information that might harm Mr. Trump's campaign because it would be negative toward him. It would be information that people would not think would be supportive of someone running for President.


Then they would basically find who was going to be making that information public and buy them off. Really, it was a strategy of buying people off.


Which is so AMI, it's the owner of the National Enquiry. One of the things that is remarkable about the allegations is that this is about the coordination of a campaign with a media outlet to keep information from the public on behalf of one candidate. So not only is the press not disseminating information, which is what the press is supposed to do, but they're keeping information on behalf of one candidate, and the purpose of it is to to present a false picture that is unduly rosy of that candidate. And so that idea of conditioning the market, so to speak, this idea of presenting false pictures and false narratives. But here you have it with respect to 2016, and those are the allegations. David Pecker is reported to be a cooperating witness. He has entered into an agreement, and so he will be one of the witnesses to testify about the nature of the scheme. I think, Mary, where you're going is that Michael Cohen will also be one of those witnesses.


I just want to get a couple of other pieces in there because the story, as at least alleged in the statement of facts, is that this isn't all just about Stormy Daniels. And I should also say, some of you are thinking, why is this a matter of a criminal prosecution by the DA that AMI and Mr. Trump decided they wanted to pay off somebody? The charges are about the falsification of business records, which we'll get into, that covered up these payments. So that's what's being charged, because that's where a state has an interest in business records being accurate and not being used as a fraud to cover up something else. But there are players before we get to Stormy Daniels, because this starts with, and we expect this person to be a witness, a door man from Trump Tower who came forward to the National Enquire with some information he had about Mr. Trump allegedly fathering a child out of wedlock. And this was one of the first people that got paid off under this scheme. Then there was Karen McDougal, who we also expect will be a witness who was a woman who came forward to National Enquire.


I think there's a reason David Pekker is part of this scheme, because if you put out a paper like the National Enquire, people come to you with salacious stories that they expect you to publish. So he's in a very good position to catch and kill salacious stories about Mr. Trump. Like a spider web. Is that fair? Yeah. But at any rate, so we expect that she will be a witness because she also was the of a large payment, $150,000, in exchange for her agreement not to speak out. And then comes the Exx Hollywood tapes, which people will remember. This came out in October before the election. This was pretty scandalous. I think there were a lot of people, myself included, that thought this might be the end of the Trump campaign. Within, I think, a week of that or very shortly after that, that is when Stephanie Clifford, whose name as an adult film star in Stormy Daniels, and that's when information that she had came to the attention of Mr. Pecker, and that's what led to what actually become the charges in this case.


Yeah. I think that background of the Access Hollywood tape is so important because that gives this motive of why there was suddenly this rush to silence and make sure the Stormy Daniels information, which was an affair at the time, allegedly, when I think his wife was pregnant with Barron. The idea was to not have this additional bad news at a very, very precarious time. I suspect that Hope Hicks and Kelly Ann Conway are going to talk about what inside the Trump campaign in 2016 was like, what people were thinking, what the concern was. And again, what's interesting is those are people aligned with Donald Trump, who are going to be called a term of art is a hostile witness, somebody aligned with the other side who's called by the prosecution to present evidence. I think they're going to bring to life and make sure that the jury understands the situation that they were in. Then you have David Pecker and Michael Cohen describing this scheme. One thing, and obviously, all of these witnesses will be important. I do think that a thing for everyone to keep their eye on is the paper trail. Yes. And emails and documents, because you are going to hear a battle of narratives here where the defense is going to want to say this case rises and falls with Michael Cohen because he will have huge credibility issues And so the defense is entitled to and will bring those out.


And the government will be talking about all of the corroboration and that there isn't a star witness, except they think they may say the star here is the documents and that they tell the story. And in fact, if the witnesses were saying anything else, it would be incredible because it doesn't fit with the story from the document. So keep an eye out as when this trial opens for the framing of the discussion of the evidence. Right.


Absolutely. And when we get to the documents, key to that is it wasn't just that these documents... Well, of course, it's not just that these documents say these were hush money payments because that wouldn't have been fraudulent. That would have true. The scheme to concoct this, to find a mechanism to pay Stormy Daniels, was for Michael Cohen and Donald Trump and the Trump organization to say, let's pretend like these are payments for legal services from Michael Cohen in his capacity as an attorney for Mr. Trump. And so they concocted a scheme by which he would be paid, not just to reimburse him for the payment he made by taking out a home equity loan, believe it or not just to reimburse him for the $130,000 he paid to Stephanie Clifford, but also to add to that. So they added on to that, basically, I think, as more of a sweetener of the deal, and to make sure that after taxes, because he would have to report this His income, if they were going to book it as legal expenses, and it weren't legal expenses, then he was going to need to make some money on it.


And so they basically doubled it and then added a bonus. And so it was $400 and something thousand that he was to be paid over a series of monthly $35,000 payments.


And so these payments that are the 34 false business records are a series of payments that are reimbursement payments that appear on various ledgers within the Trump organization. And the checks that Donald Trump is alleged to have made for these false payments to Michael Cohen to reimburse him are in 2017 over months and months, including while he was President and allegedly- While President. In fact, most of them. In the White House is making these payments.


And signing them. We're going to see Donald Trump's signature on these checks.


Absolutely. This is one where it's really interesting because I think it's such an ugly story. Let me just give you a sense of one of the pieces of evidence that the government has said is other crimes evidence that they want to introduce. When Michael Cohen testifies, they want to talk about how this is part of who he is and what he was doing for Donald Trump. Remember, this is a convicted felon who was working for Donald Trump in all sorts of ways as a fixer. A fixer, yes. And one of the ways he was a fixer, which, again, this is just allegedly in the papers, we have to see how it comes out and if there's corroboration for it, is that Michael Cohen was paying roughly $50,000 so that Donald Trump would be reported to be at the top of a list of successful business people in a That he would... So that the illusion of he's a successful businessman was actually being paid for. That reminds me so much of the Zalinski first impeachment, where the whole idea was, we're going to withhold aid We're going to give you that aid if you say that you're conducting a fraud investigation into Joe Biden.


You don't even have to conduct it. No, I need the illusion.


Transactional. Everything's transactional.


Transactional and the illusion.


You scratch my back, I'll scratch yours.


This illusion of I'm better than I am, and my opponent is worse than he is, or she is in the case of Hillary.


Okay, so should we take a break, and then we will come back and we'll talk about some of the things that still have to be resolved before we actually start trial next Monday. So we'll see if that happens. Not whether we come back. That will happen. We'll see if any of these things are successful that are being attempted. Okay, Mary.


Glad you just clarified that.


Okay, welcome back. So we gave a quite an extensive preview of the people we expect, and we didn't even get to all of them. We expect the jurors to hear from once this trial gets started. But there are still a number of things that have to happen before this trial would get started. I think that one thing for us to talk about is some of the last Ditch attempts, again, to delay this trial or make it go away, which are happening. We talked a little bit last week about the gag order, but also talked about how ironic it was that in the midst of the litigation over this gag order, you also had Mr. Trump asking for an adjornment or a postponement of the trial date based on pretrial publicity. So the very same things that were causing there to be a need for a gag order, that are, of course, things that Mr. Trump himself is saying and talking about publicly and on social media, are some of the very things, frankly, that he now is saying result in his inability to get a fair trial because he argues that the jury pool in New York City is biased against him.


Yeah. I think one of the things that happens, Mary, in every trial that I've done, certainly the bigger the case is, the more this happens, but even in smaller cases, is in the weeks just before the trial, basically the prosecution and the judge are short order cooks, and it is incoming. There's a million different requests. There's a million motions to do anything for two things. One, to delay the trial, to just preserve issues for appeal. They're just peppering things in, and they have a pretty good sense that the judge is going to say no, but they just want to be able to then, if there's a conviction, say that.


Because you have to preserve arguments for appeal. If you want to argue later that it was a mistake made below, you've got to say, I made the argument. So even if they They think they're going to lose in front of Marshawn, they're hoping that eventually, if there is a conviction, they'll eventually win in front of the Court of Appeals, or as we're going to talk about, they're going to try to use this particular procedure in New York to get up in front of the Court of Appeals even before trial starts.


Right. Just to be clear, a defense lawyer has an obligation, as does a prosecutor, to zealously represent their client. That's true on both sides. However, as Judge Mershon has said pointedly, he expects that within the rules. And if there are a violation of those rules and your duty as an officer of the court, there will be sanctions. That's right. And so he obviously is thinking without pointing to any one person, he has said, make sure you do your duty as lawyers first in the profession. We talked last week about various lawyers who are in disciplinary proceedings, in bar proceedings, because of the way they have behaved. So again, we'll see what happens here.


And just to be clear, that motion that I mentioned, the motion to postpone the trial for pretrial publicity, that has not been ruled on yet. And here we are one week from trial. But there are new motions, and I think that's what you are about to get to. Yes. Right.


So let me just say with respect to pretrial publicity, that in every high-profile matter I have done, that motion is made. That is going to be denied. The remedy for pretrial publicity is not to This is never going to calm down. Quad dear. Exactly. There's no prospect if you have this case in two months that there'll be less publicity, particularly since the defendant is fomenting a lot of it. But when you have a case against a former president, there will always be lots of publicity. This is all about that process of jury selection of making sure that jurors can actually base their verdict on the facts in court and the law is given to them by the judge. That's the remedy for this. That's going to get denied. The second thing that happened is a renewed motion for recusal. That is for the judge to be recused. It's a little rich because we have this Supreme Court argument that's going to happen on April 25th, where Justice Thomas is sitting on the case even though his wife was actually at the ellips on January sixth and was communicating with the then Chief of Staff about the Biden crime family, and he is not recusing.


And who had correspondence with a number of state legislatures trying to suggest that they send up Trump slates of electors. And this is, of course, the case we're now talking about in the Supreme Court is the January sixth case, not this New York case. But to Andrew's point on a little rich, we're seeing other examples where there's at least quite a few people who think the appearance of impropriety or the appearance of partiality may be something that should require recusal.


With respect to Judge Mirchan, this motion for recusal, a similar one was made about a year a year ago, the judge denied it. He actually got an opinion from judicial ethics office about whether he should recuse or not. Now, this motion says there are new facts that should be considered. It's very grounded in alleged conduct by the judge's adult daughter. So it's not particularly clear what that should lead to the recusal of the judge, as opposed to if it's the judge's daughter was sitting in the case, which she's not. So there's a gap there, and it's not a spouse. It is an adult daughter outside of the home who's entitled to do whatever she's going to do. But the other piece, which I thought was a big gap here, is that I thought there was not a lot to address, something that's very important in the law, which is that what is new to the defense here? In other words, why are they raising this at the last minute? Now, we know why they're raising it at the last minute. They want the trial put But that's not a valid argument. You have to be able to show why with due diligence, you did not know this earlier.


What is it about making it now? Otherwise, it's viewed as sleeping on your rights. It's like you are viewed as waiving this. That, to me, was one of the biggest failings in the briefing, was I didn't see on Trump's part a good explanation for when they had learned this and why it couldn't have been learned earlier with due diligence, which what the law requires. Even before you get to the merits of the decision, you get to this waiver issue. I don't know. Mary, what did you think?


Yeah. Well, I mean, some of the things I think they're essentially rehashing with a few more details what they said a year ago, which is, and I don't want listeners to think that there's some allegations that the judge's daughter is doing something unlawful here. By the conduct that Andrew is referring to, the conduct is her job. She is in leadership and apparently has an ownership stake in a company called Authentic Campaigns, Inc. And the allegation here is this company that does provide services to Democrat clients serves to get a financial interest by, I guess, this trial exposing, I mean, they're not going to say it this way, but this trial He'll be publicly exposing this type of fraud and fraudulent business records that that will be denigrating to Mr. Trump and benefiting Democrat clients and therefore financially benefiting Judge Mershon's daughter. That's essentially the roundabout argument here. It's not as though there's any allegation of her doing something unlawful or illegal or something like that. It's just because her job is to provide political services to Democratic candidates, that's where they are arguing there is an appearance of a conflict of interest. Now, there's nothing in here that suggests that Judge Mershon has any interest in that company or any financial interest in how that company does.


And so all of this in terms of her place of employment and everything is stuff that's been known for a long time. There's really nothing new there, to your point, about why couldn't you have known this before? And largely, that's a rehash of what was already argued a year ago. There's an allegation in here that's new, which is that, listeners may recall when we talked about the gag order, One of the reasons for the gag order being extended to family members is because of the attacks that Mr. Trump levied against Judge Mershon's daughter over social media, including the first one that was just based on erroneous facts. What some of the early attacks were based on Mr. Trump accusing a social media account that appeared to be in the daughter's name of attacking him. And there was a social media account that appeared to be in the daughter's name attacking him, but that was not the daughter's account. And the court actually put out a statement, the administrative office of the court, that this account is an old account of the judge's daughter that had been abandoned some years earlier and somebody had taken it over.


Meaning it wasn't the daughter. It's not the daughter. Exactly.


Daughter didn't do it. Exactly.


Can I give you another piece on the same thing, which is the other allegation about the daughter's account was that Donald Trump, in the recusal motion, says that the daughter deleted her account.


That's what I'm getting to. That was the whole point of me bringing that up. Because in terms of something being newly discovered, what he's trying to do now is cast a shadow on that and say, Oh, isn't it mysterious that she suddenly got rid of this account? And now maybe we know why. Well, boy, that's a lot of- Right.


And the state responded saying, So the speculation is that she shut down the account because she wanted to destroy evidence. First of all, it's not destroying evidence because it sounds like there's a subpoena standing for it. It's not evidence. It's not evidence. Exactly. That's a good argument. It's not destroying evidence because it's not evidence. But I love this state's response, which is like, A, it's not evidence, and B, let's see, you're busy attacking her. You see why she wouldn't want to be a target, and she'd want to have a small social media footprint as possible to not be the subject of the vitriol that has led judges and their families to be subject to not just words. Threats. And people have been charged based on that. So obviously, we're waiting for the recusal decision. There is reporting that Donald Trump will try to appeal one or both of these in what It's called an Article 78 proceeding. That's a type of New York state appeal. It's similar to when we talk about an Amandamus in federal court. This is super in the weeds as to the technicalities, but it's a way of trying to get the Court of Appeals to hear the case.


I, for the life of me, do not see that. I just think that the court's ready. Like the courts in general, nothing that I'm seeing. And by the way, if I thought there was some issue, I would tell everyone, There's an issue here. But this just reeks of repetitive motions. And this is just not the behavior of somebody. Just to go back to basics, if somebody is running for office and you wanted to clear your name, why would you be running from a trial? You'd be saying, Bring it on. I didn't do anything.


Although, honestly, he's not the first one in elected office or running who's tried to delay their trial. Of course. But rationally, you're right. You'd want to clear the name. We haven't even talked about, but we'll get a chance to talk about this next week because this is what will literally to be happening on the 15th, the process of jury selection. We know there's reporting that over 500 New Yorkers have been set jury notices. There's going to be a jury questionnaire. It's not clear to me whether the questionnaire was sent along with the notice or they're not going to fill those out until they get to court. I got the sense it's the latter, right? Yeah. Sometimes it's not how it works. Sometimes that gets done earlier, like in federal court. And that way you weed through them before you even bring people to court, which seems like a more efficient way, but maybe that's just the way that I'm I've done that in high-profile matters.


Because of these concerns about pretrial publicity of people having strongly held views, you want to make sure that you are conducting a really searching examination. That's why, although normally there isn't a jury questionnaire in high-profile matters, it is really standard. Having seen it, it is a very useful tool to help the parties and the court make sure that you have who can live by their oaths of office. That's right.


We'll have a lot more to say about that next week. In the meantime, let's take another quick break, and then we will come back and talk about Mar-a-Lago.


Mara Lago. So just briefly, if people are listening to this, they probably have a pretty good sense, but just to catch people up, the judge had said, I want the parties to address two options for jury questionnaires. Both options were not the law. Both of them had to do with the presidential records act. The presidential records act, as we've discussed, doesn't apply. So she gave those two options, and Jack Smith wrote back saying, You know what? We need a ruling that the presidential records act just doesn't apply here, and we need you to just say that. If you disagree, you disagree. That's fine. Rule that way. If you agree, say that. But if you disagree, we have a right to take it up on appeal, probably through a rid of mandamus, but whatever. We have a right to go to the 11th circuit. The judge comes back and leaving aside some oddities of her saying this case is complex and raises issues of first impression, neither of which do I think are particularly true. Leave aside that she criticizes Jack Smith for saying, I can't believe you want me to finalize jury instructions at this late date, which he didn't say.


This early date is really what she says, right? Right.


The only person who wanted jury instructions at this date was her. That was issue two in terms of her being less than candid in terms of her description. She gave half a loaf and said, I find that the presidential records act is not a basis to dismiss the charges now, but doesn't say about anything about the presidential records act and whether it could be a defense or how she would deal with it at trial. All What she ended up saying was, I'm not going to dismiss the charges based on the presidential records act, which was something that Donald Trump wanted. But that's not what Jack Smith had asked for. He wanted to know that the presidential record act is not a defense for Donald Trump at trial. So the issue is, and obviously everyone's been talking about how there's blood in the water and bad blood, et cetera, between the judge and Jack Smith. And I think some of that's just media frenzy. But the main issue, and the The thing for us to talk about is what to do next. I'm going to tell you what I think you should do, and we can see if we're in a violent agreement.


I love it how you're going to go first because then if I just agree, then I'll click. I just came a long second.


But Mary, everyone who knows you knows that's not possible.


All right. What do you think is the next step?


Okay. I think that what Jack Smith needs to do is tee up before the judge and say, No, that's not what I asked for. I need to know that it is not a defense. I need a ruling on that. We were not asking about jury's things. We need a ruling on this, and we're entitled, under the federal rules, we're entitled to a pretrial ruling on that. There are no exceptional circumstances. It's not a fact issue that should wade trial. And I think they need to go back and push her for it. If she then doesn't respond, and by the way, she has responded. Yes, she has responded. Because she sees what's happening, which that they're like, You've screwed up, and we want to take you up on this. We want to take you up on appeal. I think they need to go back one more time and say, No, we want to know it's out of the case. They can't afford to let this be decided after Jeopardy is attached when a jury is selected. So that's what I think. They go back. If she rules for them, great. It's out of the case for the trial, unless she reverses herself at trial, but in which case they could try and mandamus her, and it would be a very good record.


If she was against them, they have a total ground to appeal. I mean, that is what appeals courts are for. So Mary.


Yeah, basically, that's exactly my position. I'll put a little bit of flesh on the bones of this for folks who might be asking, Okay, what's the mechanism for that? What I would do if I were Jack Smith is I would probably refile, not a motion to clarify, although you could do that, but really a motion in limine, saying, I'm moving here to preclude Donald Trump from arguing that the presidential record act and his designation of records as personal means that he had authorized access for purposes of the 793 charge. So the 793 charge charges him with being unauthorized to have national defense information and retaining that national defense information while he was unauthorized to do so and then refusing to return it when he was asked to return it. He, of course, wants to argue, I designated these records as personal, therefore it was authorized. That's the legal question that Jack Smith wants to answer. I would go to the I'm saying, I'm moving in limine, which means literally at the threshold in Latin. It's a preliminary move to say to preclude him from making that argument at trial. Now, motions in limine are very, very common.


They're in Every criminal case I ever tried. It's a way for the parties to go to the court before trial starts and either to preclude evidence or argument. They want to get that ruling before the trial starts because they don't want the other side saying something in opening statement that they want to argue shouldn't come in, and therefore, the jury has already heard it, and they can't unhear what they've already heard. They don't want the jury hearing about argument in opening statement. We've already talked about what an opening statement is, but can you imagine his attorneys laying the ground work for this authorisation argument based on the presidential records act, they would be doing that in their opening statement if that were not precluded in advance. That is so that one side does not get this advantage of saying something in court that even if the trial were to say, Oh, I'm striking that, the jury has already heard it. Not only that, you got to plan your opening statement. You've got to plan how you're going to put your evidence on. If you think there are things that should be precluded, you ask the court in advance to preclude.


The rules of federal criminal procedure, Rule 12D specifically says that a court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. What I'm saying here is that this would adversely affect Jack Smith's right to appeal if he doesn't get a ruling on this pretrial and then jeopardy attaches once a jury is sworn and If Judge Canon were to decide to grant a motion for acquittal or allow all this argument to go to the jury without correcting it, and there was an acquittal, there would be nothing that the prosecution could do. That's something that I would be thinking about doing. Then The question is, okay, let's assume he files that, right? And let's assume she sits on it. If she rules, she rules either for him. Okay, good. We all know what the rules were. She rules them against him. Jack Smith can say, okay, now I'm going to the Court of Appeals and saying this is clear and indisputable air. And Court of Appeals, you need to correct it because otherwise this is going to be basically a failed prosecution because she's essentially directing a verdict, at least on those 32 counts.


But the real question is, what if she just sits on it and doesn't rule? Now, I think at that point, especially given the language of Rule 12D, that Jack Smith could try to go up on a mandamus saying she has a clear and indisputable duty and an obligation to rule on this pretrial motion. And if she doesn't do so, she has essentially, like we were just saying, directed a verdict. That's a little bit less well-trodden territory to take a mandamus on that a failure to rule, but certainly not unheard of. Yeah.


So mandamus, by the way, it's like an appeal federally, but the standard for getting reversal is harder. You have to basically show that a judge is not doing his or her job, meaning that it's not discretionary. This is just way outside the bounds, not just that it's wrong, but it's really wrong.


That's why I use clear and indisputable, right?


Yeah. So just remember that this is in the context of she has been reversed twice. I think that one of the ways that I could see Jack Smith doing what... I hope he's listening because you and I are in violent agreement as far as I can tell. And so the stars and moon are aligned, or I should say here, the sun and the moon.


The sun and the moon. We are literally almost to that moment.


Exactly. So the sun and the moon are aligned. I think one of the things that he's done, which I could see him doing again, is giving essentially the court a deadline saying that if you do not rule by X date, we're intending to go up to the Court of Appeals. He did that in the pre-indictment phase, and it worked. Obviously, it's not going to be a deadline that doesn't give the defense an opportunity to be heard. It's not going to be a deadline that doesn't give the judge time. But it clearly is signaling that they're not messing around. That's right. Yeah.


We'll see when he does this or if he does this. Maybe he's got something else up his sleeve. To those people who are saying, right now, he should move to recuse her, I think the reason Andrew and I are not suggesting that is it is really hard to get a judge recused, and we don't yet have a ruling or a direct, blatant, refusal a rule. She's being very, I hate to say the word, clever about it on many things. This isn't the first time. She's partway rules, but it's not a final order, so it's not an appealable final order. And she defers things to trial. So it's cleverly keeping him from having something that he can say she did this so clearly wrong, and it's a result of bias. And so I just don't think this is the time for that.


Yeah, but I think both of us are saying it could become that. Yes.


Oh, yes, it could become that.


This is all a way to tee up the issue in a way that would maximize the chances of success. It's not like either is just thinking, Oh, she should stay on the case because she's been so great. I mean, she's really done things that are just, I think outside the bounds. Mary said, There's a lot to keep an eye on there. The New York case, it's going to be really interesting. It's going to be a little hard because both of us are trial lawyers, so we'll both be looking at this like, Well, I would try the case this way. But it'll be really It's really interesting to cover it and to try and give people some inside tips about what's going on, why the prosecution is doing what it's doing, what the defense is up to. We're going to have additional episodes. So Mary, in addition to having this to cover, it'll be really fun to talk to you more.


We've run out of time to talk about other things, but there are so many other things. There's quarreling over the bond in the civil fraud case about whether that bond is legitimate. There's an appeal by Mr. Trump of the Georgia Judge, Judge McAfee, denial of the motion to recuse Fannie Willis. And then, of course, we're going to be looking forward to the argument, or looking forward, I don't know if that's the right word, but I am looking forward to the argument in the Supreme Court on presidential immunity in the January sixth related case. So we'll have lots to say about those things as they really become ripe.


And I'll put in a flag for something that you flagged for us first, which is the judges who have been speaking out. Because for anyone who's listening who wants to read a wonderful, impassioned, tethered to facts and law reaction by a judge, I would recommend googling United States district Judge, Royce Lamberth.


Actually, maybe we can put these in our show notes. Yes. We will have these sentencing notes that he used to sentence one of the January sixth defendants. We'll have them in the show notes.


I am so 19th century. I'm like, at At least I said Google. I mean, you could write to Judge Lamberth and ask him for a copy of his remarks. But no, we will put it in our show notes because we have this wonderful producer who gathers all this stuff for everybody. But I highly recommend it. It's very moving. He is another judge speaking out. He is by no means identified as a liberal Democrat. It would be extremely hard to characterize him that way. But he's a really moving statement that I think for those people who want to be uplifted at a time, that is anything but. Yeah.


He was really responding in many ways to letters that had been written in support of one of the defendants who he was sentencing that day and letters that talked about that defendant character. The judge wanted to make sure. He says, I'm not sure that these people actually know what the defendant did here. So he goes through. He says, I sat through the trial. I saw the evidence. And the portrayal of Mr. I'm not sure how you say his name, John Natakas, as either A peaceful protester or someone simply swept up by the crowd does not match the reality established at trial. He then goes through in detail what the evidence established about Mr. John Natakas' conduct, and then says, I'm actually going to have these notes that I've written here for sentencing. I'm going to have these sent to each of the people who wrote me a letter just so that they know. He's like, I thank you for your letters. I'm not sentencing him based on his character. I'm sentencing him based on his conduct, what what he did. And you folks should know what he did, too. So it's a bold move. It's not the first time he's written these types of notes.


We featured some of them several weeks ago, and we will continue to uplift the words of judges who are speaking out about January sixth.


Mary, talk to you very soon.


That you will.


Starting next Tuesday, Mary and I will bring you new episodes twice a week to keep you up to speed of the New York trial. And we want to answer some of your questions as they come up. So please send us questions. You can leave us a voicemail at 917-342-2934, or you can email us at prosecutingtrumpquestions@nbcuni. Com. Thanks so much for listening. We'll be back next week with much more. As a reminder, please vote for us on the Webby Awards. Voting is open until April 18th, and there are instructions in the show notes about how to do that. The show is produced by Vicky Virgalia Christina. Our associate producer is Jamaris Perez. Paul Robert Mounsi is our audio engineer. Our head of audio production is Bryson Barnes. Ayesha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.