You know you need protein to fuel results, but it's not easy when you're drinking the same bland chalky shake every day. Stop punishing yourself and get to GNC for the best protein in the game, including all the hottest brands and craveworthy flavors that will keep you coming back for more. We're talking protein that legit tastes like cookies, your favorite cereals, indulgent desserts, and more. Bust out of your protein rut and actually look forward to those shakes with unbeatable protein at unbeatable prices. Fuel your fitness with protein at GNC.

Hello, and welcome to Prosecuting Donald Trump.

It's Tuesday, March 19th. I'm Andrew Weissman, and I'm here with Mary McCourt.

Boy, I thought you might say somebody else.

That's because I've been doing this book tour with Melissa.

That other woman. Oh, my.

Mary, it was great to see you in person last week. It was. Where I was racing. I think it feels like a year ago, but was that Friday?

It was Friday. Friday, I saw you. Yes, it was just days ago, but it does feel like a year ago. Yes, it was nice to be up in the city. It was a beautiful weekend.

Got a lot of work done. It was really nice to see you in person, give you a big hug and hello. We've got a lot to cover. This would probably be a bit of a longer episode. Yes.

I'm just going to give you a quick roadmap, and then we'll dive in. We will, of course, start with district Attorney Alan Bragg's case in Manhattan. Lots of developments in that case right now. Trial date has been pushed. It should be starting next Monday, and it's not. We will then jump to Florida, talk about the motions hearing last week, rulings by Judge Canon, including a very, very unusual ruling that came out last night. We will then talk about the civil fraud case in Manhattan, because, of course, I guess this was just yesterday. Mr. Trump's attorneys basically went to the appeals division said he can't find anyone to give him a bond for the amount that he needs, which is almost a half a billion dollars. So they're asking for that to be modified. And then we'll look ahead because listeners will probably have learned last week that the judge in Georgia basically said either Fannie Willis, you need to get off this case, or Nathan Wade, you need to get off this case. Nathan Wade got off. So what does that mean for the Georgia criminal case against Mr. Trump? So tons to get into.

So, Andrew, let's with New York.

Okay, so let's talk about the New York criminal case. That is now something that the judge a few days ago issued an order saying that it is adhered for 30 days from the date of his order. So that puts it into about mid April. And there's now on the 25th of March, the day the trial was going to start, there's now going to be a hearing. So there's two things that we're going to discuss. But let's just talk for a second about this data dump where where new documents were produced by the Southern district of New York pursuant to a subpoena that was issued by Donald Trump's defense team in January. And then there were different tranches of documents that got produced to the tune of about 100,000 documents. Let me just frame the legal issue. There is a relatively new law in New York that prosecutors have to turn over discovery in a timely fashion to the defense. It's a really good law about making sure that the defendants have all of the necessary documents to prepare their case and present any defense to trial. If you do not produce all of those documents in a timely way, the sanction can include dismissal of the indictment.

It doesn't have to, but it can.

This rule is basically based in constitutional principles of due process, making sure that a defendant has a fair opportunity to defend himself.

Absolutely. It's now codified by the state legislature, but that's where it comes from. But in any event, the issue is that according to the filing by the DA's office, they said that they, over a year ago, asked the federal government for a series of documents, and they got some, and they produced those to the defendants. But then pursuant to the subpoena, which was belatedly obtained and served by Donald Trump, more documents were obtained, but very, very late. The issue for the judge, I think, is going to twofold. One, did the DA get any documents that were required to be turned over that he did not turn over? I think the chances of that happening are somewhere between slim and none. The second issue is, is the actions of the Southern district of New York, the federal prosecutors, can it somehow be imputed to the state such that the delay in turning things over by the federal government can be imputed to the state government? Because if the state isn't at fault and it's just the feds that are at fault, I don't see this going anywhere. Obviously, what we don't know is how relevant these documents are.

It seems pretty clear that the vast majority, at least according to the state, are not relevant. But there will be a category that even the DA's office says is relevant. I suspect this... Get ready for my pun, Mary. Okay, here we go. Because I've been talking about different tranches of documents and that there was a first set that was produced, and then there was a second set, and then basically DA is like, what the hell? Because you're going to say it's going to take another week. We have a trial. And the feds turned it over one day later. But I think what you're going to see on the 25th may be tranche warfare.

That's good. I applaud that.

I have to say this is my dear departed father was very, very into puns. This definitely falls into the category of the apple doesn't fall far from the tree. I suspect that we will be hearing from the federal government shortly I think that they will be trying to explain what happened here and why they produced what they did to the state and why they produced what they did to the federal government to try to explain- To the defendant, to Mr. Trump. Yeah, to Mr. Trump. Sorry. I think that we'll get more on that. Let me just quickly say why I think that the argument that the state and the feds should be viewed together as one is not going to go anywhere. There's a variety of reasons, but I think the simple one is the mere fact that the federal government had 100,000 responsive documents to a subpoena, but the state didn't pretty much tells you that they weren't acting as one. That's right. The state would have turned it over. But even if you didn't believe that, there's very good reason to believe that Alan Weiselberg, this CFO of the Trump organization, had been immunized by the federal government and put in the grand jury.

I'm reading between the lines of things that happened in the state courts.

There's also redactions in some of the motions having to do with this discovery delay that suggests things that are not public.

Yeah. When Alan Weisberg was then investigated and charged and pled guilty, not once but twice by the Manhattan DA's office, what you would want to do if you knew that another prosecutor's office had immunized your target is you're required under the Constitution not to use that person's statements or, the most important part, any leads from that statements. People might remember Ollie The North is a classic example of that. But that's a good reason why the state would want to keep very clear of anything having to do with Weiselberg and his immunized testimony in the federal government. It would be a very strong reason for the state not to be coordinating with the federal government other than seeking relevant documents that are unrelated to Weiselberg and to what he himself has said or what they learn from it. That's somewhat complicated, but this is a long way of saying, We'll know more on the 25th, but I suspect we're going to get written papers from the federal government and even the state explaining more what happened here. Yeah.

All of this explains why Alvin Bragg in response to Mr. Trump's motion for a 90-day adjurnment of the trial said, We don't think you need 90, but we basically agree with documents coming in this late that 30 days would be appropriate. And so it was no big surprise, I think, for the judge in the face of that to say, Okay, I'm going to adjurn things for 30 days from the date, again, of his order, not the date of the hearing next week. And then we'll take this up and consider it. And he even did say, On the 25th, we'll determine what the trial date will be if there will be a trial. And I think that was because the motion is to dismiss the entire case because of this discovery delay. And I think that's pretty unlikely, as you indicated. And I I think it's unlikely just because I think it would be unwarranted, although the judge clearly wants to get to the bottom of who was responsible for this. But I think it's also somewhat unlikely because the judge has gone ahead and issued decisions on this whole slew of motions in limine by issuing written opinions yesterday.

And if somebody was strongly thinking they were going to dismiss the case, they might hold off on writing all those opinions. Now, it could be they were mostly written already before this discovery dispute arose. I don't read too much into this, but still, that's a lot of opinions that he wanted to get out so that the parties would know what evidence they can put on and what they can't.

What is an in limine motion? This is like we speak legal.

That's right. And there once was a person nominated to be a federal judge whose nomination, I think, ended up going nowhere because he did not know what a motion in limine was. You may or may not recall that.

He should have been listening to our podcast.

Yeah. A motion in limine just is a motion brought before trial. Usually, it is about seeking to either get permission in advance to introduce evidence or get a ruling from the court that certain evidence that you think the other side wants to introduce will be excluded. The reason you do this in advance is because that you are trying to avoid a mistrial. A mistrial could happen if one side or the other introduces evidence that shouldn't have come in under the rules of evidence and that causes prejudice to the other side. It could be a basis for the court to say instructing the jury to disregard that is not going to be good enough because they've already heard it and we can't put the milk back in the bottle, and so we're going to start over. This is very common.

Mary, what stood out to you? There were so many. What did you think were the most significant things in reading the tea leaves of how the trial go?

A few minor points I'll make, but let's just give a big picture. I mean, there are things that the judge ruled that would not be admissible, things that Mr. Trump had sought to admit, things like the fact that the Federal Election Commission dismissed any complaints about campaign violations from these payments to Stormy Daniels, things like Mr. Trump wanted to be able to elicit that In documents filed by federal prosecutors at Mr. Cohen, Michael Cohen sentencing, they gave some opinions about his credibility and concerns about his credibility. The judge here understandably says, You can't get in hearsay about what somebody Nobody else thought about the credibility of the DA's witness here in this case. But you can, of course, impeach a witness with information that would suggest they're not being credible, including information that maybe they didn't always tell the truth on the stand. You can certainly impeach based on that basis.

Yeah, Mary, just so everyone understands, that's essentially the judge is saying, and this is really typical, and this is where the judge got it totally right, and I'm sure the experienced defense council knew exactly what the judge was going to rule here, which is, of course, a witness's credibility can be impeached with all of their bad acts, ways in which they have a motive to lie, or they didn't see things correctly. All of that can be presented. So the jury in the criminal case makes the determination of what weight, if any, to give to that witness's testimony. What you cannot do is give to the jury someone else's opinion about their credibility. That's right. That's a jury determination. You can't replace it with someone else's determination.

And like you said, totally what you would expect. The judge also rejected Mr. Trump's argument that Michael Cohen shouldn't be permitted to testify at all, that he is not credible, that he has perjured himself. And the judge said, There's no evidence he's perjured himself in connection with this case. There's no authority in any case I've ever seen that says that one party can't call a witness, frankly, even if they had committed perjury in another case. As we talked about before, oftentimes the government does have to rely witnesses that have a lot of what we call baggage, right? Maybe prior criminal convictions like Michael Cohen has, maybe prior false statements made to the government. Those are lies. The key point here is you have to make sure the defendant knows about those things and can ask questions about them and do what we just called impeachment on those. Usually, frankly, the government will do what we call take the sting out of it by eliciting on its own that baggage when the government sponsors the witness. So not surprising at all on that.

There's no question the defense is entitled to cross up one side and down the other, Michael Cohen, and frankly, any witness they want to impeach. I've never seen a motion to say, But this person, I'm going to impeach him so your government cannot even call him to the stand. And the judge said that, and here's the interesting part, the letter that was written to the court about Michael Cohen not being able to be called to the stand was written by one of the defense lawyers, but not both. There are two defense lawyers, Todd Blanch and Susan Necklace. Susan Necklace did not sign that letter. I took that as a really interesting sign. I've known Susan Necklace. We're not friends or anything, but she's a very well-known defense lawyer here. She's superb. She's just a very, very good defense lawyer. She represents her clients zealously, but she has limits. She's going to stay within the ethics rules, and I've never seen her not do that.

You lose credibility in front of a judge when you make a request that is so unsupported by law. I could imagine her saying, I'm not joining that because it's utterly unsupported.

Exactly.

Which is what the judge said.

That's something worth keeping an eye out for. It was in particular was about this motion that I have never seen Clearly, the judge had never seen. It was a dead loser to say that you shouldn't keep somebody- You have to keep somebody off the stand. Off the stand just because they have credibility issues. I mean, go ahead, impeach them and let the jury decide. A judge doesn't say, you can't do it.

That's right. Two other I want to talk about that I think are very significant from these rulings. One is that the judge did rule that a certain amount of what we've referred to before in the podcast under law as other crimes evidence in New York law, it's called Mulineau evidence, after a particular name of a court case, but it's the same as what we think of as Rule 404(b) evidence in the criminal system. That is evidence of other wrongs or bad acts that is relevant to state of mind, motive, intent, absence of mistake, knowledge, that thing. One of these, the court said that could come in was the evidence of the Trump Tower meeting. Remember, we're all the way back in 2015 because this whole case involves the 2016 presidential election. The evidence of that meeting is that Mr. Trump, David Pecker, the head of AMI Entertainment, which puts out tabloids like the National Enquiry, and Michael Cohen met at Trump Tower and discussed a catch and kill strategy to basically, If they hear of negative information, negative stories about Mr. Trump, they will basically grab it by buying it, kill it so it doesn't see the light of day, and therefore prevent negative information about Mr.

Trump from coming out during the most intensive part of the campaign. Anyway, the court said, yes, that can all come in because that's inextricably interwoven in the narrative and events, the steps that eventually led to purchasing the information from Stormy Daniels. The other thing that the court said come in is the fact of the Access Hollywood tape coming out. He says that this helps establish defendants' intent and motive for making the payments to Stormy Daniels and then attempting to conceal them. However, the court did something here a little bit unusual that listeners may be curious about, which is the court said, I'm going to allow you to elicit testimony about that videotaped interview, the Access Hollywood interview. This is one where Mr. Trump says, famously, I can grab women by this part of their body. When you're a star, you can do whatever you want. I'm going to allow testimony about that, but I'm not going to actually allow the tape to be introduced into evidence unless the defendant opens the door. He said that tape itself essentially could be too prejudicial or more prejudicial than probative. But this opens the door means if the defendant himself says some things about that tape, that in fairness, the judge decides at trial means, okay, now the jury has to see the tape, then the judge will let the jury see the tape.

So that's that ruling. The last thing I want to talk about, because I think this is somewhat fascinating, is Mr. Trump had wanted to essentially make an advice of counsel defense without formally making an advice of counsel defense. And we've talked about before, when someone relies on advice of counsel as a defense, the law around that basically says, you have to show that you went to a lawyer, you told them all the pertinent facts, they gave you their legal advice about what to do, you followed that advice, and now you're being prosecuted for it.

By followed, you relied on it. You relied on it. The reason you did what you did is because you relied on what they were saying.

What that means is when you make an advice to counsel defense, and this is why you have to give notice of it in advance, that means all of those communications you had with your lawyer about it that would normally be protected from disclosure by the attorney-client privilege now have to be disclosed to the other side so that they can properly prepare to try to rebut your advice of counsel defense and to try to ask about it and impeach that advice of counsel defense. Mr. Trump knew that if he relies on this, that's going to open up a bunch of his communications with his attorneys to Alvin Bragg and his team. What he did is he tried to have his cake and eat it, too. He said, I want to rely on just the fact that Mr. Trump knew that there was the presence of counsel, that counsel had been involved in some of the discussions about this, and that's relevant to his intent and his willfulness in terms of these payments, but we're not formally relying on advice of counsel defense. Basically, Judge Mershon said, I'm not having any of that. You can't make an advice of counsel defense without actually complying with the requirements of advice at counsel.

He followed a ruling, frankly, that federal Judge Kaplan had made in the Sam Bankman-Fried case involving cryptocurrency, which is that it would leave a misimpression for the jury that you had relied on the advice of counsel by doing something like this without actually complying with the requirements of the defense and supplying the information to the prosecution.

I actually think that Judge Kaplan did this in a more careful way in terms of his record on appeal. Did. Because Judge Kaplan, actually, before he made a definitive ruling, and by the way, Judge Mershon still has time to do this, heard from Sam Bankman-Fried outside the presence the jury and said, I want to hear what you're going to say about counsel, because it would be under some circumstances, and I'm not sure they're here at all, the case that if you thought a lawyer was fully knowledgeable, let's say you're at a company and you have your general counsel there, and you think your general counsel knows all of the relevant facts, and they speak up and say no when things are problems, and they say yes when things are good, and they're there for all of the meetings, and you think they know everything. And later someone says, Wait a second, you had a bad intent. You'd be like, But wait a second. I had my general counsel there.

He was sitting right there by me and he didn't flag anything. Yeah, or she.

She didn't say anything. And she's there and does that all the time. I thought she knew everything. Now, obviously, you'd have to have all of the factual predicates for that. And that's where I thought Judge Kaplan was very good in the Sam Bankman-Fried case about making sure that wasn't the case. And so he precluded it saying, This is fanciful. I'm not letting you do this. It's basically saying I didn't have the requisite mens rea. I didn't have the bad intent the law requires. I'm not really saying I relied on explicit instructions. I just thought since my lawyer was there, they would say something. Now, by the way, with Donald Trump, what's crazy about that is, I mean, this is a guy who, if you just look at the Mar-a-Lago case, not only does he not follow what lawyers say, he's deliberately misleading them. That's right. And getting them to make false statements, allegedly, to the government. So the idea that he's following legal advice I'm not really seeing that. I'm not feeling that.

Frankly, the Judge, Mershon said, the court can't endorse this tactic of trying to make this defense without really making the defense. So, yeah, he wasn't having it. Okay, let's take a short break. We'll come back, and we will talk about what is going on in the Mar-a-Lago case.

You know you need protein to fuel results, but It's not easy when you're drinking the same bland chalky shake every day. Stop punishing yourself and get to GNC for the best protein in the game, including all the hottest brands and craveworthy flavors that will keep you coming back for more. We're talking protein that legit tastes like cookies, your favorite cereals, indulgent desserts, and more. Bust out of your protein rut and actually look forward to those shakes with unbeatable protein at unbeatable prices. Fuel your fitness with protein at GNC. Join MSN CNBC's, Simone Sanders Townsend, Michael Steele, and Alicia Menendez as they team up to host The Weekend.

We want to get the newsmakers, the people that are in the middle of what is happening.

It's about the conversation. A lot of Americans check out of conversations.

We want to check them in.

Conversation we begin and that you continue all week long.

The Weekend, Saturdays and Sundays at 8:00 AM Eastern on MSNBC.

Okay, welcome back. Mary, turning to Mara Lago and Judge Canon. I think this is a good moment to do for people what is going on. I know in my head, and I'm pretty sure in your head, you have to make a decision with respect to what do you think is going on with Judge Canon. Do you think she's being partisan or not? That's one data point. You have to make some judgment about that. The second is if you think that is doing things in a partisan way. One thing that is important for everyone to understand is something that the judge has unlimited power to do once a trial starts. In other words, once a jury is sworn, there is a rule in federal court called Rule 29. Now, I hope everyone's sitting down for what I'm about to say, but I think it's really important for people to know this because it's what animates my thinking, and I'm pretty sure everyone's thinking about this. But Mary, you'll tell me if you disagree, which is under Rule 29, the judge, while a trial is going on, can say, let's say at the close of the governance case, can say, I don't think that any reasonable juror could find that the proof establishes guilt.

It can be based on the facts. It can be based on some erroneous view of the law. The judge can dismiss the case under Rule 29 with prejudice that operates as an acquittal.

It's really called a motion for a judgment of acquittal. Every defense lawyer makes at the end of the government's case, even if they know they're not going to win, they make it in order to make that record. Your Honor, the evidence is insufficient to prove my client's guilt. I move for judgment of acquittal. The government can't appeal. Maybe that's what you're going to say. Sorry, Right.

If the judge issues that Rule 29 right then and there without letting the case go to the jury, it is not appealable. It is a judgment of acquittal. The case is over, and there's nothing you do, even if the judge is completely wrong on the facts and the law, it cannot be appealed.

Just like the government can't appeal when a jury acquits a defendant, it's done. And so this is treated the same way.

A lot of times what a judge does, he thinks that Rule 29 should be granted is in order to preserve the government's ability to appeal, is they take the Rule 29 argument and they take it under advisement and they let the case go to the jury. Once there is a jury verdict, if the judge then grants the Rule 29, it is appealable. This, by the way, this rule is very controversial. There have been lots of proposals over the years to change it so that district judges don't have that power. But why are we raising this? We're talking about this because we're going to talk about two things that the judge did that I'm going to use the legal term since we've used terms like in limine. This is going to be a new legal term for people, cacamame.

Okay. Yeah, it's like bananas.

It's I'm going to put in context what we're about to talk about, which is the concern that if you think that, as I do, that Judge Canon is not just a neophyte, but she's also partisan, that there's this concern of how do you go up to the 11th Circuit, the Court of Appeals that oversees her, which has reversed her twice, how do you get back up there and what's the right moment to do it? Because you really only have one more shot at doing that. But it would be the third time. You know what they say. Three times a charm. Right. Anyway, Mary, so what happened? What are the two decisions she's done?

Last Thursday, she heard argument on two of Mr. Trump's motions to dismiss. One was a motion to dismiss on the grounds that the charges were too vague. The charges counts 1 through 32, which involved this unlawful retention of national defense information after you've been requested to return it. Mr. Trump had argued, We don't know how that can possibly apply to a former president who had authorized access while he was president and could designate the materials as personal when he left office. It's too vague to understand what conduct is prohibited here when we try to apply this law to a former president. The second motion was the motion based specifically to dismiss the entire case, not just the unlawful retention of national defense information counts, the entire case on the grounds of the presidential records act, by which Mr. Trump argued that because Trump had designated all of these records as personal before he left the White House. There was no basis at all for an investigation into his retention of those documents at Mar-a-Lago. Therefore, the entire case needed to be thrown out. What the judge did, the first thing she did that causes us to worry about what she's planning to do at trial, is she said, I'm going to deny your motion to dismiss on vagueness grounds, but it's without prejudice, basically because some of these things might be more appropriate to be dealt with at trial in jury instructions.

That caused, I think, many of us to put up our antenna saying, Wait, if vagueness is a constitutional principle, it's a matter of law, is Is the statute too vague for a person to be held responsible for violating it? Does that violate due process rights of the defendants? It's not an issue for a jury to decide if we think this is vague. Juries decide they get instructed on law, they apply that law to the facts, and they make findings of facts. I think that's the first thing that made some of us think, Is she thinking of putting vagueness to the jury or maybe to herself on a motion for acquittal at trial.

Also, Mary, on that, first of all, there's nothing vague. It's ready for decision now. And so this, to me, going back to our Rule 29 point, it's like this is the world's worst decision for the government. She could either have ruled for the government, that, of course, is good for the government, or she could have ruled against the government, in which case they could have appealed it.

That's right. Because one thing a government can appeal is a dismissal of an indictment.

That's right. Yes, exactly. Or dismissal of charges or suppression of material evidence can be appealed. So this didn't allow them to go up on appeal by just saying, Oh, it's vague. I'll consider it later. Yeah, at trial. Why? I mean, this is... Right. And so, again, this isn't just an experience. I mean, this is clearly like, I do not want to give you a chance to go up on appeal because what can happen if it goes up on appeal is that court can not only rule against me, but they can take me off the case.

I do think there's also an experience here and a complete unfamiliarity with the classified documents and cases involving classified documents It's just so obvious in everything that she does. But this has a particularly- But this isn't an either or.

It can be an and. 100%.

Then the second thing happened yesterday. I tell you, Andrew, this is a two-page order she put out. I think I've read this order 15 times, trying to make some sense of it. That's anything other than just you're trying to tank the case at trial, and I'm having a really hard time making sense of it. That's what she essentially said.

Mary, you want my analogy, by the way? The analogy is I'd like the government's position as to... I'd like them to propose jury instructions for one of two charges that I'm planning on giving to the jury, but I'm not sure which one it will be. On one side, I'd like you to have a set of jury instructions with the assumption that the Earth is flat. But that may be wrong because I also want you to propose jury instructions for a second theory, which is that the Earth is square.

I was going to say square. See, I was thinking. Yeah. So both are wrong.

This is why it's so great we do this podcast. No option that is legally correct.

To remind people what the government said in response to the presidential records act motion was, first of all, this is completely immaterial. Presidential Records Act is completely immaterial to the charges here because he's charged under a criminal statute with retaining national defense information after he was asked to return it, and he was unauthorized to have it. That criminal statute applies completely and apart from any designations of personal or presidential under the presidential records act. If you did anything else and said that a president could declare everything personal before leaving office, that would mean a president could purposefully say, I'm designating all of this classified information as personal, leave office with it. He's got authority to do whatever he wants with it. He could sell it to our adversaries. He could give it away to adversaries. He could do anything he wants. That's preposterous, right? The criminal laws that apply to classified information, to national defense information, apply of their own force. So That's our first argument.

Mary, so he could just... You know what? That painting of Abraham Lincoln- Yeah, it's personal, right? In the East Wing. I've always had a fondness for that, and that is now being transmographied to my personal property, and I'm taking it. You want to charge me with theft?

Yeah. It's my own. I got to designate it as personal.

It's personal. I know you want to charge me with theft, but you can't do that because the criminal laws are subservient to my transmogrifying anything I want as president to personal, which is like the divine right of Trump.

You're being very creative today with your examples, and it helps. Their second argument was, even if there is some authority under Presidential Records Act to designate things personal, These are original classified documents classified by the intelligence community. There is no world in which they are personal because the definition of personal is for one's personal use only that have not for use in exercising your constitutional or statutory or other official duties as president. The very nature of classified documents prepared by the intelligence community in order to brief the president when he was the president is necessarily so that the president can exercise his constitutional and statutory and official duties. So the notion that original classified material could be personal is just ludicrous. And these are both legal arguments.

Mary, you think that documents about our nuclear capabilities or the nuclear capabilities of foreign adversaries are not personal documents belonging to any individual after they leave office? I do think they're not personal. Okay. Now, the shocking part of this, just to relate it back to Judge Canon, is that she's assuming the law is wrong, and she's assuming the facts, not an evidence, which is that Donald Trump even did any of this, which is so preposterous. Those aren't even facts that have been presented. She is suggesting that in one of her jury charges, is that it's basically a directed verdict.

Let's tell listeners what it said, because your example was about flat earth, square Earth, not exactly what Judge Cannon said. Rather than rule on any of those legal arguments the government made, which is that the PRA has nothing to do with it, and that they could not possibly be personal because they were prepared by the intelligence community, she just doesn't say anything about this and says- By the way, the PRA is the presidential records act. She says nothing about this and says, I'm ordering you to file by, I think April April second, yes, April second, proposed jury instructions and verdict forms on counts 1 through 32, the counts relating to the retention of national defense information, assuming, and I love how she says this, assuming the following competing scenarios and tells the government you must offer... I guess she should tell both parties, yes, defendant Trump and the special counsel must offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury. So one is basically, assume a jury gets to examine a record retained by a former president in his or her personal possession at the end of the presidency and make factual findings as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions under the PRA.

So she says, Basically, assume that I would just give that question to the jury to look at each document and decide whether it's personal or presidential.

Which is legally wrong because it doesn't have to be proved beyond a reasonable doubt because it's not an element of the crime because it has nothing to do with the crime.

Back to the arguments the government's made, right?

Option one is legally wrong. Now, let's go to option two because I'm sure that's going to be so much better. Oh, Yes.

Actually, this one's worse, I think, in many ways.

It is. It is worse.

I'm just going to read it. Option two is, a president has sole authority under the PRA to categorize records as personal or presidential during his or her presidency. Neither a court a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president's decision to exclude what he or she considers to be personal records from the presidential records transmitted to the National Archives and Records Administration constitutes a president's categorization of those records as personal under the PRA. Now, there is then nothing left for the jury to decide. There's no question to put to because her hypothetical scenario is, assume that a president's decision to exclude what they consider to be personal documents from what they return to the archives means that they're personal and it can't be reviewed by a judge or jury. There's nothing left. There's no jury instruction to give.

Right. I guess the one question would be, is the factual question of whether the President, in fact, did that during his term. Did he, in fact, do that? But again, it's irrelevant. First First of all, it's not possible. That's not what the PRA. There's no way this factually happened. The only way this would become even factually relevant is if Donald Trump hopped on the stand and said this. Two, even if he said it, again, it is not the law. This raises the issue of what exactly is Jack Smith going to do? Does he at some point or has he already realized that Judge Canon is not just an experience, but is doing things that for whatever reason, are just legally wrong and consistently legally wrong for one side, mainly not his.

But done in a way that makes it very difficult for the government to appeal. This order on its own, it's not an appealable order. The question becomes, we've talked to this before, is this something that the special counsel could take up to the Court of Appeals on a petition for a rid of Mandamus, basically saying what the judge has done here is so clearly and indisputably wrong that we think the appellate court should intervene and direct her not to do this. I think that's probably something they're carefully considering because, again, if what she essentially is going to do here is try to put this issue off for after a jury is sworn and then potentially either actually grant a motion for a judgment of acquittal or give such cockamane instructions to the jury, which would be wrong. There just wouldn't be an opportunity for the government to appeal. This is just unfortunate in so many ways. Honestly, I think it makes look really bad, and I think that I shouldn't be so worried about that. But to me, that undermines the institution of the judiciary, which is something I'm very concerned about and the legitimacy of the institution.

But it also puts the government in a really awful position, too, when it's just trying to litigate its case like it normally would any criminal case. It's so unusual to see something like this happen.

Mary, you've set out two data points, the vagueness ruling or non-rueling, and then this issue about the potential jury charge. One thing we don't know is what she's been doing behind the scenes on the SEPA Classified- Classified Information Protections Act, right? Right. We don't know that piece. That also could feed into the decision that Jack Smith has got to be thinking about is when do you take your shot? When do you think that there is enough that you will go to the 11th circuit? But so that is probably a good place to take a break and focus then. We'll return to New York to talk about the civil case and then briefly talk about something that's on our minds to keep an eye out for. Sounds good. Let's take a short break and come right back.

You know you need protein to fuel results, but it's not easy when you're drinking the same bland chalky shake every day. Stop punishing yourself and get to GNC for the best protein in the game, including all the hottest brands and craveworthy flavors that will keep you coming back for more. We're talking protein that legit tastes like cookies, your favorite cereals, indulgent desserts, and more. Bust out of your protein rut and actually look forward to those shakes with unbeatable protein at unbeatable prices. Fuel your fitness with protein at GNC. Get the best of MSNBC all in one place every day, each morning in your inbox with the MSNBC Daily newsletter. Understand today's news.

Sign up for MSNBC Daily at snbc.

Com.

So, Mary, let's go back to New York and talk about the bond, and then we can focus on Georgia and what we're keeping an eye out for. But in New York, something surprising happened, which is, guess what? When Donald Trump said he was worth millions and billions and billions with a B, that seems to be somewhat in doubt because he has submitted a filing saying not he's poor, not that he's broke, but that it is practically impossible for him to post a 464 million dollar judgment. But that, I have to tell you, didn't make a lot of sense to me. His filing, which sought to have the appellate court lower the bond requirement so that he doesn't have to buy the 25th, which is the date that the state has given him to post a bond. Remember, he's technically right now that the judgment can be enforced, but the state has agreed to give him 30 days to post a bond. So that's running out on the 25th. A lot of things happening on the 25th. He has said, I can't get a bond because he doesn't have 464 million dollars in cash.

To sitting around.

To sitting around. Now, it's weird because he seems to say, I do have a few hundred million dollars in cash. So obviously that could go towards the bond also. So it doesn't quite explain why that money can't be used. It could be that that is actually required by other loans for him to keep on hand. So it may not be unencumbered cash. And so that's one of the questions. But second, he says, I would have to use as collateral to get a bond. I'd have to use real estate. And none of these companies that would post a bond want real estate. They would want me to post collateral cash or cash equivalents like stocks in order to get a bond, which makes sense that a company would say, I want something liquid. I don't want real estate.

That I've got to then sell and might sell below market value and it's not easy for me to collect on.

Yeah, but Mary, that makes no sense to me. If you have a whole bunch of real estate and you're a billionaire and you have a lot of illiquid assets, but their assets nonetheless, and they're unencumbered If you have 464 million dollars in unencumbered real estate, then you, Donald Trump, can take out a mortgage on those and make them liquid and get the money. I mean, this is not complicated. And so they never explain that. And getting a mortgage is not something... It's not like you're selling them and selling them at a fire sale, which Donald Trump says, I shouldn't have to do. He doesn't have to. It's like all you have to do, if these were truly unencumbered, then just take out a mortgage. Lots and lots of people do and use that money, either put that money up or to use that to get a company that's saying, I will give you a bond, but I need liquid assets. You now have the liquid assets. So the filing didn't make a lot of sense other than- He can't get it.

He just can't get it. No company's given It was a big hit to him.

Yeah. And also it made you realize he doesn't have 464 million dollars in unencumbered assets, whether it's cash or real estate, because either that or he just lied to the court. But in some ways, you've got an issue of he's lying somewhere, either publicly to the court or both.

I think two things going on here. One, I think you're right. They're just not unencumbered. So the banks and companies are not interested in that as collateral. But second, that they just don't think he's got a real good chance of winning also on this appeal and maybe just don't want to be funding this.

Also, they could just be like, I don't want the opprobrium of this. Bad for business. I'm sure Chup has thought bad publicity, which is, I don't really want to be doing this. But in any event, the real issue is even if it's just a pure economic decision by a surety company- It's not adding up here. The filing that Donald Trump made does not add up. So one of the final things is there's this whole possibility to potentially go into bankruptcy. We'll see if that's remotely palatable to someone who's running for office. It wouldn't be the first time that Donald Trump filed for bankruptcy. It's also not clear exactly what it would do for him because bankruptcy is a federal proceeding. This is a state enforcement action. It's not at all clear that it would actually operate to stay this. An analogy is if you are filing for federal bankruptcy and you You are driving around New York City and you get a traffic ticket, you don't get to say, I don't have to pay that traffic ticket.

Because I've declared bankruptcy.

Because I declared bankruptcy because it's part of a law enforcement regulatory process. And this, remember, is a case that's not just private parties. This is the state having brought this. So it's not clear that a bankruptcy proceeding would even work to protect him. But there's more, obviously between now and the 25th, we We'll see what happens. But you can be sure that the attorney general's office is loaded for bear on this issue and ready to enforce after the 30-day grace period that she has afforded Donald Trump.

She's made that clear.

Passes. Absolutely.

Yeah. Last thing, and mostly this is just stuff we'll have to be looking out for. Last week, Judge McAfee ruled that there was no actual conflict of interest in Fannie Willis, the district attorney there, her having hired Nathan Wade to be a special assistant district attorney to handle the Trump case. First, of course, during the grand jury proceedings, he said that there was not evidence that there was an actual conflict of interest in that she hired him so that she could benefit financially by paying him and then him paying for vacations and things like that that they did together. However, he used some pretty strong language to say that there was still an appearance, basically, of impropriety, an appearance of some conflict. In fact, he used a phrase, An odor of mendacity remains, which was a pretty loaded term, I thought. Because of that, and this is where it gets a little confusing, even though he said in his order that when there is just this appearance and not an actual conflict, it might be appropriate for a district attorney to be removed from a case, but not her whole staff, because it's only an appearance issue, not an actual issue.

Nevertheless, he went on to say, Because of this appearance issue, I'm you two choices, Bonnie Willis. One, you and your whole staff remove yourself from the case. Second, Nathan Wade removes himself from the case. So his ruling on her two options was inconsistent with what he had just written about what the law says with respect to appearance of impropriety. But nevertheless, those were the options. And within, I think, 24 hours, Nathan Wade had resigned and gotten off the case. So where does this leave us now? Remember, we didn't even have a trial date as it was for the remainder of this case against Mr. Trump or the other co-defendants in this case. We still have no trial date, and now, at least the lead prosecutor so far is not on the case. Where do you think that leaves us, Andrew, or are we just speculating?

Well, we are speculating, but one thing we know is that the defendants are seeking permission to appeal. They have to get a certificate that allows them to appeal this issue. That's something that will happen. I would also expect, and in some ways they were invited to do this by the judge, that they will be filing various ethics complaints with respect to Ms. Willis and Mr. Wade and various fora. So this isn't the last that we've heard of this issue. But just to make it clear, something you said, which is the judge made it absolutely clear that whatever the ethics issues there are, whether they're proved or not proved, it has nothing to do with the merits of the case. And he has said that, that's his first ruling, is that this is very much a sideshow. And then on the odor of mendacity, he didn't make a finding that somebody was not being truthful or that somebody... He also didn't make a finding that someone was truthful. So he didn't come right out and say either one. And so the odor of mendacity line seemed gratuitous in light of that. But I I think in terms of where we are, the defense is going to be continuing to gnaw on this bone.

And so we may have an appeal. We will have these ethics complaints, but I'm pretty sure that you're going to see the DA's office trying to move forward on this case. It'll be interesting to see whether they bring somebody else in or they certainly will designate somebody to be the lead to go forward. It could even be Ms. Willis herself. That's something to keep an eye on because this won't the end.

Okay. Our listeners are exhausted by now.

Right. It's really amazing because I did so much reading yesterday because there were so many things that were coming in. I think we covered a lot, but it's amazing. There's so many issues that came up.

There's more There's much we didn't. Yeah.

But the one thing we know sitting here today is next week is going to be a big week.

Absolutely. We'll be back, and we'll do our best to explain it.

Mary, before we go, a note that later this week, we have a special two-part series dropping, and it's on the new book that I was doing with Melissa, The Trump Indictments: The Historic Charging Documents with Commentary. The episodes are, I think, going to be really great because they include readings from the four criminal cases and then our commentary on them. We have some very, very special people reading from those excerpts of the indictments and having listened to it now. They're terrific. Anyway, that should be coming up later this week, so stay tuned for that. If you've got questions, you can leave us a voicemail at 917-342-297. Com. 34. Maybe we'll play it on the pod, or you can email us at prosecutingtrumpquestions@nbcuni. Com. Thanks so much for listening. We'll be back next week with much more. This show is produced by Vicky Virgilina, Katherine Anderson and Bob Mallory are our audio engineers. 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 podcast and follow the series.

You know you need protein to fuel results, but it's not easy when you're drinking the same bland chalky shake every day. Stop punishing yourself and get to G&C for the best protein in the game, including all the hottest brands and craveworthy flavors that will keep you coming back for more. We're talking protein that legit tastes like cookies, your favorite cereals, indulgent desserts, and more. So bust out of your protein and actually look forward to those shakes with unbeatable protein at unbeatable prices. Fuel your fitness with protein at GNC.