The defendant, Donald J. Trump, was the 45th President of the United States and a candidate for re-election in 2020. The defendant lost the 2020 presidential election. Despite having lost, the defendant was determined to remain in power. So for more than two months, following election day on November 3, 2020, the defendant spread lies that there had been outcome determinative fraud in the election and that he had actually won. These claims were false, and the defendant knew that they were false. But the defendant repeated and widely disseminated them anyway to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in administration of the election.

That was the voice of acclaimed actor Liam Neeson. He's reading an excerpt from the United States of America versus Donald J. Trump. That's the DC January sixth indictment. Let's listen to some more.

Shortly after election day, the defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the defendant perpetrated three criminal conspiracies. A, the conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government in violation of 18 United States Code, Section 371. B, a conspiracy to corruptly obstruct and impede the January sixth Congressional proceeding at which the collected results of the presidential election are counted and certified, the certification proceeding in violation of 18 United States Code, Section 1512K, and C, a conspiracy against the right to vote and to have one's vote counted in violation of 18 United States Code, Section 241. Each of these conspiracies, which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud, targeted a bedrock function of the United States federal government, the nation's process of collecting, counting, and certifying the results of the presidential election, also known as the federal government function. Hello and welcome to a special episode of Prosecuting Donald Trump.

I'm Andrew Weissman, and today I'm here with Melissa Murray. Many of you may know her, but no, she is not Mary McCord. She is a constitutional law scholar. She is a law professor at NYU Law School, where she is one of my colleagues, or I'm one of her colleagues. She is also co-host of an absolutely wonderful podcast, Strict Scrutiny, which she does with Leah Littman and Kate Shaw, both of whom are equally fantastic. One of the things that's amazing about Melissa is she speaks law and she speaks English, and she's also funny, and she also has a bon mot for everything, which I think... Is that French? Yeah, I think that's French. Melissa, Welcome.

Thank you for having me. I think you should also note that in addition to being all of those things, I also have the good fortune of being your co-author. Our new book that is now available wherever you get your books is called The Trump Indictments: The Historic charging documents with commentary, and the commentary is by us.

Exactly. This book collects the four indictments against Donald Trump, and it features extensive commentary, a cast of characters, introductions to each indictment, an overarching introduction, lots and lots of tools, including a timeline, to understand the various allegations that are made in each of the four indictments. In this first episode, we're covering the DC and New York indictments with certain excerpts that thought would be particularly interesting for you from two incredible actors, Liam Neeson and Glenn Close. Melissa, I was wondering what your thoughts were about the passage we just heard. That, in many ways, is a reflection of what our book is about, which is really trying to give a handbook and a guide for non-lawyers, even lawyers who are not immersed in criminal law and constitutional law, so that they can follow along. The commentary we're going to engage in now is actually what's in the book.

No, that's exactly right. We spent a lot of time with these indictments, regrettably not in the company of one Mr. Liam Neeson, a man with a very special set of skills in addition to his lovely Irish brogue. But we went through all of these indictments, and as we were reading them, we were reacting in real-time with each other about what was raised in those indictments, why those choices were made. We thought it would be really important for those who are following the trials or just reading the indictments at home to hear some of those insights, to understand what choices were made and why they were made and what they might mean going forward into a criminal trial.

I noticed your reference to Liam Neeson was a reference to the movie Taken. Am I...

Is that right? Good, Andrew. Very good.

I think you might have tipped me off as to that. Of course, what I was- Don't mess up the magic, Andrew. The magic meaning I have to be spoon-fed. What I was What I'm going to say is I remember I saw Liam Neeson first, not in the movies, but he was on Broadway in Anna Christie, a early play by Eugene O'Neill, and it was starring him and Natasha Richardson. Oh, yeah. His wife, who passed away. Yes. It was when you go to the theater and it's just one of those transcendent experiences. It was unbelievable. But I think, Melissa, you're now getting a sense of what Mary has to put up with in terms of digressions. I provide embroidery to her substance.

Well, I don't know. Mary and I share the same initials. We are both M-M's. But on my podcast, Strict Scrutiny, I often provide the embroidery. I will say, I think Leah and Kate would concede that I am really teched up on popular culture in the way that they are not. I think I play the Andrew Weissman role on that podcast. So together, This might just devolve into absolute cultural chaos.

Yeah, well, it's going to be embroidery on embroidery. But this is one thing I can tell you is my cultural references pretty much end with the beginning of the 19th century. I think we're going to have separate- You did offer Eugene O'Neill to my taken, so there's that. Exactly. Okay. Melissa, why don't we start with what your thoughts were about what we heard at the top of the episode.

The show opened with a really wonderful reading of the initial language in the January sixth election Interference Indictment. Again, the dulcet sounds of Liam Neeson's voice. But can we talk about the substance of this? I just felt like Liam Neeson was channeling Jack Smith here. It was like Jack Smith talking to America, but in an Irish brogue, and possibly with the ability to create a bomb out of a Snickers bar and save his daughter all at the same time.

One of the things that happened when this indictment was rolled out was that Donald Trump and his followers started to say, Well, these are conspiracy charges. These are about language, and these are all protected by free speech. You heard a lot about a conspiracy to do this and a conspiracy to do that. Then there are other parts of the indictment that talk about different ways in which people spoke to do different things. Donald Trump wrapped himself around the First Amendment saying, This is just free speech that's been criminalized by Jack Smith and the Biden Justice Department. I just I wanted to give people not chapter and verse, but let me just give you a sense of how I see that. Words can be used to commit crimes. Let me just give you some obvious things. When you go to a bank with a gun and you say, Give me your money, those are words. To take an example from the DC immunity argument in the DC appeals Court, where Judge Pan turned to Donald Trump's lawyer and said, If your client ordered seal Team 6 to kill a political opponent, well, an order are words.

If you order a murder, whether you're a president of the United States or you're John Gotti, the former boss of the Gambino family, those are words. You know what else is a crime? Making a false statement to a federal officer, to a prosecutor, to an FBI agent. Literally the statement itself, if it's false to that officer, is a crime. It is just a bogus argument to attack what is laid out here as protected by the First Amendment. So Melissa, that was my big picture view. I was wondering, what were your thoughts?

I agree with everything that you said about the First Amendment and that it's not just that words are fine and you can say whatever words you want. Some words do have consequences, and those consequences can come with criminal liability. But I thought what was really interesting about this indictment, and again, I'm thinking of Jack Smith as played by Liam Neeson here, was that they explicitly addressed in the indictment the question of the First Amendment. There was almost a prebuttal that occurred in the indictment where Jack Smith explained that it's fine for someone who is engaged in a bitterly contested election to make statements saying that they want to challenge the election. You can do that. What you cannot do is tip over past this point where the First Amendment would protect you and actually encourage people to undertake lawless actions by feeding them lies that they believe. I think that's a big part of the indictment here, the fact that this wasn't just simply a difference of opinion. Donald Trump, as Jack Smith alleges here, knew that the election had not been stolen. He continued to perpetuate the lie that it had, and it had really violent consequences on January sixth, and that is why we are here.

That is why this indictment has issued.

Let's pause here for a quick break, and we'll return to hear more excerpts from the DC January sixth indictment read by Liam Neeson. Back in a moment. Chen Saki.

Have you ever seen the house this dysfunctional?

Rachel Maddo. 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?

Mondays, 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 Saki at 8:00 PM Eastern, followed by The Rachel Maddo Show at 9:00 PM Eastern, Mondays on MSNBC. Today's news requires more facts, more context, and more analysis. The It's never been harder to understand. That's why it's never been more important to try. Msnbc.

Understand more.

Hello, and welcome back to this special episode of Prosecuting Donald Trump. I'm Andrew Weissman. I'm here with my co-author and colleague at NYU Law School, Melissa Murray. Melissa, let's listen to another excerpt from the DC January sixth indictment read by the acclaimed actor Liam Neeson.

The Conspiracy. From on or about November 14th, 2020 through on or about January 20th, 2021, in the district of Columbia and elsewhere, the defendant, Donald J. Trump, did knowingly combine, conspire, confederate, and agree with co-conspirators known and unknown to the grand jury to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government. The purpose of the conspiracy was to to return the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. The defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power.

Melissa, based on that clip and putting it together with the other portions that we heard, Liam, I'm on a first-name basis. I think, is he Liam to you now?

Or is it just me? He's Mr. Smith to me, Mr. Smith who went to Washington.

Oh, touche. Melissa, so what were your thoughts on this in terms of the more detailed language now about the conspiracy that we just heard?

So two thoughts here. One, one of these charges that Jack Smith has brought against Donald is about the obstruction of an official proceeding, the certification of the Electoral College. And interestingly, the statutory provision that is being used to charge this here comes from a relatively recent statute, which you know very well because it emerged in the wake of the Enron Scandal. So this was part of Sarbanes-Oxley. There's actually a case pending before the United States Supreme Court right now called Fischer versus United States that is about whether or not this statutory provision, which was enacted in the wake of the Enron Scandal, is actually meant to apply to a situation like January sixth, where individuals were trying to obstruct the certification of the Electoral College. And so the argument that Fischer who is just an ordinary run-of-the-mill January 6 protester/defendant, is saying that it was actually meant to get at a different set of crimes. It was never meant to be applied in this particular context. That case is pending before the Supreme Court. I believe they're going to hear oral argument on the issue in April. If the Supreme Court agrees with Fischer that this law was not intended to be broadly applied to the obstruction of any official government proceeding, that knocks this count out for Jack Smith.

That's something that we don't hear spoken about in the context of this indictment. Mostly, we've been talking about how the trial has been delayed. But a really big question that the Supreme Court is going to answer is whether one of these charges, and there are only four charges here, one of these charges is going to fall out.

Yeah. So one of the great things about the way this was charged is, yes, it would affect one of the four, but there would still be charges to go forward. And one of the, I don't know, maybe the hidden blessing of the delay is if I'm Jack Smith or a. K. Liam Neeson, if I'm trying this case, I'd rather know exactly what the Supreme Court says. It may be that this charge doesn't apply at all. It may be that they say it applies, but the jury has to be given a very specific language. You don't want to retrial. That's right. If you can, have all four charges go, but you want to make sure that the jury charges correct. There's a good chance that if there is a green light in this case's schedule, that Jack Smith and his team will have that data in order to make sure that the judge, the check-in, is correctly charging the jury so they can take into account whatever the Supreme Court does. The other thought I quickly had was just One of the things we do that I thought was extremely helpful, and I actually have started using the book this way, is there's a reference in what we just heard to co-conspirators, but they're not named in the indictment, and we explain the policy reasons why that is.

But our book lists them all, and there's a whole cast of characters.

Based on reporting, not rank speculation, but based on media reporting. Yes.

Absolutely. So that we have educated information about who we think they are and how they've been reported in the press. You can correlate that so that you don't have to sit there and go, Wait a second, who is number one again? Who is number five? It makes it much more readable. That's the thing, even though you and I are discussing this all the time, either on TV or on podcast, you can forget because it's so confusing. There's so many names. It's really useful to have one place to look. By the way, that is what I would call a Shameless pitch. That's my Shameless pitch for the book.

Here's more subtle pitch. I think one of the values of the book is that a lot of these individuals show up in multiple indictments, not necessarily as wrongdoers, but just as people who are players in whatever is happening. It's hard to keep all of the information in check and how they relate to each other. I think one of the nice things about the book is that it lays each cast of characters out with respect to each indictment, but also has an overarching cast of characters that talks about how they all relate to the indictments as a whole. Yeah.

Then just to underscore something you said, Melissa, is that, again, we are basing this about public reporting, and so we try and list where the data comes from. We also make a point, if these are people who are listed as unindicted co-conspirators but not named, it means that they are not charged with criminal wrongdoing. That's one where both of us teach at a law school, defense rights and due process is part of our DNA. It doesn't matter if you think somebody might be guilty or not. That's irrelevant in terms of how the legal process is supposed to work.

I think that's exactly right. Just to underscore that, the rights of the defendant, the rights of the accused in any criminal proceeding, those are sacrosanct, and it doesn't matter what you think about the defendant. Those rights are not selective, they're not itinerant, they have to apply to everyone, or it doesn't mean anything at all.

Right. It's about the rule of law. I mean, that's the big picture. That is part of the rule of law. Let's hear a final clip from Mr. Smith.

Manner and means. The defendant's conspiracy to impair, obstruct, and defeat the federal government function through dishonesty, fraud, and deceit. The defendant's knowledge of the falsity of his election fraud claims. The defendant, his co-conspirators, and their agents made knowingly false claims that there had been outcome determinative fraud in the 2020 presidential election. These prolific lies about election fraud, including dozens of the specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots or that voting machines had changed votes for the defendant to votes for Biden. These claims were false, and the defendant knew that they were false. In fact, the defendant was notified repeatedly that his claims were untrue, often by the people on whom he relied for candid advice on important matters and who were best positioned to know the facts, and he deliberately disregarded the truth. The defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly that they were not true. The defendant's knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others' right to vote and have their votes counted.

He made these knowingly false claims throughout the post-election time period including those below that he made immediately before the attack on the Capitol on January 6. A, the defendant insinuated that more than 10,000 dead voters had voted in Georgia. Just four days earlier, Georgia's Secretary of State had explained to the defendant that this was false. B, the defendant asserted that there had been 205,000 more votes than voters in Pennsylvania. The defendant's acting attorney general and acting deputy attorney general had explained to him that this was false. C, the defendant said that there had been a suspicious vote dump in Detroit, Michigan. The defendant's attorney general had explained to the defendant defendant that this was false, and the defendant's allies in the Michigan state legislature, the speaker of the House of Representatives, and majority leader of the Senate had publicly announced that there was no evidence of substantial fraud in the state. D, the defendant claimed that there had been tens of thousands of double votes and other fraud in Nevada. The Nevada Secretary of State had previously rebutted the defendant's fraud claims by publicly posting a the Facts versus myths document explaining that Nevada judges had reviewed and rejected them, and the Nevada Supreme Court had rendered a decision denying such claims.

E. The defendant said that more than 30,000 non-citizens had voted in Arizona. The defendant's own campaign manager had explained to him that such claims were false. And the speaker of the Arizona House of Representatives who had supported the defendant in the election had issued a public statement that there was no evidence of substantial fraud in Arizona. F. The defendant asserted that voting machines in various contested states had switched votes from the defendant to Biden. The defendant's attorney general, acting attorney general, and acting deputy attorney general all had explained to him that this was false, and numerous accounts and audits had confirmed the accuracy of voting machines.

So one of the things that we do in the book is explain that what we just heard is not really typical for an indictment. And we talk about the different types of indictments that you see in the law. And sometimes an indictment is not what's called a speaking indictment. It just literally is like a paragraph that says, Here's the crime charged. It doesn't really give details. There's no narrative. And that's all the law requires in terms of the indictment, where you just track the criminal statute. There's a congressional statute that says this is a crime, and so you can have just a paragraph. Then the defendant to understand what they're really charged with, to put meat on the bones. They get discovery as a matter of the rules of criminal procedure. They can get what's called a bill of particulars, where the government has to set out more details. That's not what we have here. Here in the DC case, and we'll in all of the other cases, we have what's called, the jargon is, a speaking indictment.

This is a shouting indictment. This is not just a speaking indictment.

There's the embroidery. I love it. I love it. I was accused, by the way, with one of our listeners of being the Gracie Allen to Mary's George Burns. Mary's George Burns, which, by the way, I think that continues also with the dating myself.

Is a very old reference. That is. That's a very old reference.

So This is clearly a case where the prosecutors wanted to make sure this was digestible to the public because it obviously is a case of national significance, and they wanted to lay out a story. The other thing about a speaking indictment people should understand is it is not by any means laying out all of the proof. I have written speaking indictments in the Enron case that you referred to, Melissa, earlier. We had speaking indictments. It is a very small subset that you use to tell the story, but there's no requirement, and it's just not possible unless you're going to have literally a book like the book we just wrote. You just don't have that. So this is speaking, but it's not a compendium of all evidence.

So one of the things I think is really interesting about the aspect of this indictment as a speaking/shouting indictment is that we talk a lot about how Donald Trump, as a defendant, is really trying his case on two levels. In the court of law, sometimes less successfully, as we those civil cases, and then in the court of Public Opinion. I think one of the takeaways from this indictment, and we talk a little bit about this in the book, Jack Smith also understands the value of prosecuting in the Court of Public Opinion, and that's what this is. I mean, he anticipates that this isn't going to be the routine indictment that gets handed down from the federal government and only gets seen by prosecutors and defense attorneys. He understands the historical import of what is happening and that these indictments are going to be texts over which many Americans will pour and read and digest and try to understand. I think we are helping out everyone by trying to break this down, recognizing that not everyone who reads these indictments is going to be a lawyer, and not everyone who is a lawyer who reads this indictment is going to be as teched up on the criminal law or the constitutional law to make this easy reading.

But the fact that we are in this moment where this indictment is going to be reviewed in much the same way we imagine a newspaper or any other document of national significance would be reviewed, that I think is really meaningful, and we ought to pause and reflect on that This is part of our National Linguafranca now.

Could not have said that better. These are historic documents for all time, regardless of what happens at the trials. Yeah. Okay, so we're going to pause here, and when Melissa and I come back, we're to hear from acclaimed actor Glenn Klaes, reading from the New York Criminal Indictment of Donald Trump.

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The Weekend, Saturdays and Sundays at 8:00 AM Eastern on MSNBC. Hello, and welcome back to this special episode of Prosecuting Donald Trump. I'm Andrew Weissman. I'm here with my co-author and colleague at NYU Law School, Melissa Murray. Okay, Melissa, let's switch gears now, and we'll dig into the second of the indictments we're going to cover today, the New York indictment. That is the one brought by the Manhattan district attorney, Alvin Bragg. We're truly honored to have the acclaimed actor, Glenn Close, read this excerpt from the people of the State of New York versus Donald J. Trump, the New York Indictment.

On the Hush Money Payments, the defendant, Donald J. Trump, repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election. From August 2015 to December 2017, the defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the defendant scheme's electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized for tax purposes the true nature of the payments made in furtherance of the scheme. One component of the scheme was that at the defendant's West, a lawyer who then worked for the Trump organization as special counsel to defendant, Lawyer A, covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with the defendant. Lawyer A made the $130,000 payment through a shell corporation he set up and funded at a bank in Manhattan. This payment was illegal, and Lawyer A has since pleaded guilty to making an illegal campaign contribution and served time in prison.

Further, false entries were made in New York business records to effectuate this payment, separate and apart from the New York business records used to conceal the payment.

Melissa, let me turn to you. What are your thoughts about this part of the New York entitlement?

One, her voice is amazing. So beautiful. I love Glenn Close. I think she's absolutely fantastic. I love her as Alvin Bragg. Has Alvin Bragg ever been played by someone with such an amazing range? I don't know. I really want to focus, and we talk a little bit about this. This was the one indictment in the book, I think, where we disagreed a little bit about the scope and the heft of this indictment. I don't know if it's your sensibilities as a federal prosecutor, and I don't disagree with you that the January sixth indictment in terms of the scope and substance of what is charged and the broader consequences and the need for accountability is incredibly important. I think maybe this indictment seems much more minuscule, less consequential, less weighty in the shadow of the January sixth indictment, both the Georgia indictment and the federal election interference indictment. But I really do think, and I think when you hear Glenn Close reading the words of Alvin Bragg, you understand this, too, is an important case. It's not simply about the falsification of business records to conceal criminal conduct, but that it was in service of sequestering this very damaging information or information that could potentially have been very damaging to a candidate running for President if the voting public knew about it.

I think Donald Trump supporters talk about this. It's not a crime to cheat on your wife. It's not a crime to hide your cheating from your wife. Like, Okay, all that's right. But it is a crime to falsify your business records in a company for the purpose of then subsequently shielding information that can be of public interest from the voting public on the Eve of an election and for the purpose of ensuring that you have the best chance of winning that election. I think when you put it all in that light, it seems like this is part of an MO, right? The interference, the All of this, if proven, points toward what becomes a more pronounced episode of the same conduct on January sixth, 2021.

I completely agree with that. The one thing I will say is that I think Glenn Close could probably read anything, and we'd be like, That's really serious. But I agree with you. I mean, it's incredibly beautifully written and with a seriousness. But I think that in many ways, the problem is that it suffers by comparison because you look at the January sixth case, you look at the classified documents case, and this seems like it's less important. But you know what? In my old world where I was a criminal prosecutor, you know what's important? 18, 19, 20 felonies. You don't sit there and go, Gee, that's nothing. And falsifying business records is a crime that is commonly charged by the Manhattan district Attorney's office. I do think this is one area where one thing that's nice about our book is we have this introduction that tries to talk about these indictments in terms of their place globally.

Comparatively, other systems.

Yeah. And then comparing it to how prosecutors have dealt with similar crimes in the past and why we think that's important and how we deal with the idea of selective prosecution. This is the one case where we're not saying that we don't think it should be been brought, but we said that there's more of a question that people can legitimately ask about, are they treating him simply regardless of what his last name is, what the reasons for it. I just think it's in that context. But just to be clear, I think this is a righteous case, and that's not prejudging the evidence. At the end of the day, we'll see if the Alfenbrag can prove the case up. This is a case also where unlike many of the other cases, the prosecutors and the defense are excellent. They're really good lawyers. You know what's great? That's the way the system should be, and unfortunately, often isn't because of a lot of inequities in the system, particularly on the defense side.

Yeah, I think that's exactly right. I love the idea that it's not that this is less weighty. It just suffers in comparison. It's like a little black dress next to a massive black ballgown. Jack Smith's indictment is the ballgown.

That's exactly what I was thinking. That is exactly- I knew it.

I read your mind. We are- Sympatico.

Separated at birth.

Mm-hmm. That's us.

Okay, Melissa, let's listen to another excerpt from the New York indictment read by Glenn Close.

After the election, the defendant reimbursed lawyer A for the illegal payment through a series of monthly checks, first from the Donald J. Trump Revocable Trust, the Defendence Trust, a trust created under the laws of New York, which held the Trump Organization entity assets after the defendant was elected President. Then from the defendant's bank account, each check was processed by the Trump Organization, and each was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records kept and maintained by the Trump organization were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017. The defendant caused his entity's business records to be falsified to disguise his and others' criminal conduct. During an infertherance of his candidacy for President, the defendant and others agreed to identify and suppress negative stories about him. Two parties to this agreement have admitted to committing illegal conduct in connection with the scheme. In August 2018, Lawyer A pleaded guilty to two federal crimes involving illegal campaign contributions and subsequently serve time in prison. In addition, in August 2018, America Media Inc.

Ami, a media company that owned and published magazines and supermarket tabloids, including the National Enquirer, admitted in a non-prosecution agreement that it made a payment to a source of a story to ensure that the source, did not publicize damaging allegations about the defendant, before the 2016 presidential election and thereby influence that election.

Melissa, I'm going to jump in here because something that I think has not gotten enough attention is the complicity of the National Enquire. Yes. I relate this very much to the Dominion lawsuit and the idea that Fox was a partisan player. That's not the role of the press. Here, whatever you want to, how you want to label the National Enquire, their job is not to keep information from the public, but that is exactly what they did. Not only were they keeping the information from the public, they were doing it on behalf of one candidate. That is so undermining of what the protections of the free press are supposed to be about. To me, that's like a dirty little secret that's not getting enough attention about that role. One thing at the trial that one might expect because of the way this is charged is that David Pecker, you can't make this up, but anyway. David Pecker, apparently, is going to be a witness for the state. He and Michael Cohen are going to talk about the scheme, the so-called Catch and Kill Scheme. David Pecker, this is a good way to illustrate how you can use the book because there's a cast of characters.

You can just look up David Pecker and see that he is the CEO of the entity that owns the National Enquiry.

I think there's a lot to unpack. I'm going to do this from the perspective of constitutional law. There's a case that I teach in constitutional law called Nixon versus Fitzgerald. It's a question about presidential immunity. Mr. Fitzgerald has sued President Nixon for something that happened while Nixon was in office. The Supreme Court says that Nixon, as a matter of civil liability, like money damages for the President based on something he did in his office while he was serving as President, there's absolute immunity. For that, for civil liability from money damages. There's this real dissent, and it's a quite vociferous dissent. They raise the question, does this mean that the President is above the law? If the President cannot be reached by civil processes, is he essentially acting above the law? Justice Louis Powell, who wrote the opinion for the majority of the court, writes, of course he's not above the law. There are other deterrence that will help shape presidential behavior and ensure that the president stays on the straight and narrow. One, his own respect for his own legacy and the prospect of his place in history. The prospect of impeachment is also a check on the President, and the media serves as a check on the President.

If you think about that, when I teach this class now, my students almost think it's quaint, maybe even a little funny. Impeachment is toothless now. We've seen this because of the incredible polarization in the Senate and the even distribution of votes between the Democrats and the Republicans. Impeachment is a paper tiger. You can impeach someone, but given the numbers, it's very unlikely that they are actually going to be convicted of anything. So take impeachment off the table. There are some presidents that really don't seem to care about their historical legacy and what the future generations of Americans will think of them. They're in it for right now. Then there's the question of the media, and that might be the last real viable check on the present, the media functioning as this broader institution that can call power to account. What's so shocking and so alarming about this indictment, and again, I think you're right, it does not get the attention it deserves, is the degree to which the media has been conscripted into a partisan project that is supposed to result in the election of Donald Trump, as this indictment explains. Feelings.

I love tying it to that case. This is why you're such a perfect person to be relating- Just stop right there.

This is why you're such a perfect person, the end.

You're right. That's it. There's no explanation needed. There it is. Okay, let's go to a final segment that we're going to play from the New York Entitement, again, read by Glenn Close.

Suppressing Woman 2's account. About one month before the election, on or about October seventh, 2016, news broke that the defendant had been caught on tape saying to the host of Access Hollywood, I just start kissing them, women. It's like a magnet. Just kiss. I don't even wait. And when you're a star, they let you do it. You can do anything. Grab them by the genitals. You can do anything. The evidence shows that both the defendant and campaign staff were concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular. Shortly after the Access Hollywood tape became public, the AMI Editor-in-Chief contacted the AMI CEO about another woman, Woman 2, who alleged she had a sexual encounter with a defendant while he was married. The AMI CEO told called the AMI Editor-in-Chief to notify Lawyer A. On or about October 10th, 2016, the AMI Editor-in-Chief connected Lawyer A with Woman 2's lawyer, Lawyer B. Lawyer A then negotiated a deal with Lawyer B to secure Woman 2's silence and prevent disclosure of the damaging information in the final weeks before presidential election. Under the deal that Lawyer B negotiated, Woman 2 would be paid $130,000 for the rights to her account.

Melissa, that's our last clip of what we thought were interesting allegations in the New York indictment. What did you make of the last clip that we just heard?

Again, this Access Hollywood tape is the tape that will not die. I mean, we are going to be hearing about this until the end of time. I just I can't really remember in October of 2016 when this tape first surfaced. I mean, again, a true October surprise, but it then didn't actually pan out in the way that it ordinarily might have. Donald Trump really didn't see any consequences. His wife, Melania Trump, dismissed it as locker room talk amongst boys, but it has really had a half-life in his post-presidential life. I mean, this is the tape that was introduced into evidence in the E. Jean Carroll case, the civil case for sexual assault before Judge Lou Kaplin on the Southern district of New York. That was a case that was tried by Robbie Kaplin on behalf of E. Jean Carroll. There's that really interesting deposition testimony where, Robbie played the tape and was like, Do you believe that that's true, that you can just do that because you are a star? Donald Trump reiterated it. Like, yeah.

Or as he said, they let people do this for millions of years for good or bad. I love that part.

It's a weird caveman defense.

Also, I missed the for good. That's like, really? By the way, Melissa, you want to know how I think of it? I think of it because during the Mueller investigation, do you know what else happened? When this tape came out, within hours, you had all of the inside emails being released that had been- The Hillary Clinton. That had been John Podesta and Hillary Clinton. That was clearly- What a surprise.

Such a coincidence.

It's like everybody had their October surprise in this. This is part of that. When I think of this, I think of it as how it triggered the response- That's interesting. To try and cover this. But it really provides the motive and part of why it was so important to try and buy silence, to do the catch and kill, because it was going to be not just this tape, but then there was going to be, Oh, and in fact, he did it. This is what he was doing, and it was going to make him look even worse. That's why you have this effort to pay her off and then cover it up with these alleged false business records. Yes. One final thing that I thought was fascinating is that this indictment, everyone talks about it, and we've talked about it as crimes that happened before he was the President, and there are obviously the DC case as crimes while he was in office. Florida cases are crimes that were after he was in office. But you know what? I know, you can't make this up.

That's alleged criming before, during, and after the presidency. That's a lot.

That's a lot. But you know the checks that he used to reimburse Michael Cohen that's alleged here? Do you know where he's alleged to have done that from?

Well, because I read the indictments and our book, I know that it occurred with a pen in the oval office.

Unbelievable. Melissa, thank you so much. It has been great to talk to you. We're going to do this again with some other- With our next book. Which is probably just good. We should do a book that's just embroidery.

I don't know what our next book is. Maybe it is Embroidery, but I will say that it was absolutely delightful to work on this project with you, Andrew. I share your view that this was something that we needed to do, that we needed to make time to do to make sure that everyone who wanted to follow these trials had the tools that they needed to do so as an informed and engaged citizen. So thank you for working with me on the Trump indictments, the historic charging documents with commentary. It's been an absolute pleasure, and I'm delighted to be with you here today on prosecuting Donald Trump.

Great thanks to Melissa Murray, my colleague at NYU School of Law, co-host of the terrific podcast, Strict Scrutiny, and the co-author with me of our new book, The Trump Indictments: The Historic Charging Documents with Commentary. Also, Our sincere gratitude to both Liam Neeson and Glenn Close for reading the excerpts you heard in this episode. And a very special thanks to Peter Coyote. This episode was produced by Vicky Virgilina. Katherine Anderson 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. Part 2 of this series drops Friday with a focus on the Georgia and Florida Indictments. That episode will include readings by renowned actor Peter Coyote and Tony award-winning actress, Renee Elise Goldsbury. Search for Prosecuting Donald Trump wherever you get your podcast, and please subscribe to the series.

Hey, it's Chris Hayes.

This week on my podcast, Why Is This Happening? Author and philosopher, Judith Butler, on their new book, Who's Afraid of Gender?

The question of gender is fundamentally linked with the future of our democratic world.

We would be, I think, making a mistake by imagining that it's simply identity politics or that it's fragmenting the left or that it's an artificial notion. It is not.

That's this week on This Happening. Search for whyisthishappening wherever you're listening right now and subscribe.