MSNBC’s Nicolle Wallace with Prosecutors Andrew Weissmann and Mary McCord: Prosecuting Donald Trump

foreign but I don't podcast live very often I'm nervous this is the real deal thank you so much um there are no two people that I try harder to have on my show every single day than than these two um which leaves their calendar sort of gunked up between four and six months days um so it's really a pleasure to be here on your podcast um I I mentioned in the back there's so much news today that I want to keep you on the room by saying we're going to get to in a minute I want to go back though in the Wayback machine because one of the stories that I think is so captivating is the dictator Hangout between Kim Jong-un and Vladimir Putin and it's easy to look at it as a story of two International pariahs hanging out because no one else will really have them but it it shouldn't be lost on anyone but they're the two foreign leaders Donald Trump has publicly said the most amazing things about Angela Merkel he loathed Vladimir Putin he loves Western European leaders he could never find anything generous to say Kim Jong-un is someone he thinks is brilliant and strong so I'm not you know stitching together any sort of narrative these are the facts as we know them and I want to ask both of you having having served in the Justice Department in National Security roles how the country protects itself from what Russia might do to interfere in the next election when the stakes are so much higher than they were in 16. I'll start with you Mary well you know one of the problems now is that there's kind of No Holds Barred right I mean in the 2016 election there were a lot of suspicions about Russia assisting in the election uh wanting president Trump to win there were a lot of statements that Trump would make out there you know Russia if you're listening can you find those missing Hillary Clinton emails those kind of things but I think we didn't know the true extent of Russia's interference until in our election until really after the fact right after it was already done and now we all know going in that Russia will try to interfere we all know that the stakes for Russia are even higher now Putin's got a war in Ukraine that the U.S is is helping to fund Ukraine to fight um and uh we also have unrest I'd say in um in North Korea and in the South China Sea and other places in the Far East and so these are things that we know that these foreign leaders are ones who are are are very much wanting to see uh Trump win this next election and so I think it's you know as Andrew will probably talk about money is one aspect right there's lots of ways to get money into a campaign that are hard to investigate especially before an election um when you know there's so many things going on but there but there's so many other ways we learned about last time right um infecting our politics with fake email or fake Facebook accounts and fake social media accounts and actually even orchestrating on the ground uh events here in support of Mr Trump so I think there's so many threats we're worried about including political violence generated right here in the United States that has nothing to do with our foreign ever series um and so knowing which place to put your effort I think is a real a real challenge for our election officials our law enforcement our investigators you know Trump's appointed director of the FBI Christopher Wray has now testified for I think at least four years that the greatest threat to the Homeland is domestic violent extremism it's something we talk about all the time do you worry that the pattern that laid the foundation for 9 11 which is that we can only focus on so many threats at a single time as a country defending itself from many many many sources of threats do you worry that we're distracted by that domestic threat and not paying enough attention to Russia so I I think that's unlikely Justin I'd be interested in Andrew's take because he was General Counsel at the FBI but of course I worked very closely as well throughout my career but with both the counterterrorism and The Counter Intelligence um uh you know sections of the National Security Branch and you know they they're our whole teams that remain focused 100 of the time 24 7 on Russia on North Korea on China on Iran um and those are different people than the ones who are investigating domestic extremist threats domestic violence extremism and those are different from the people frankly who are in who are spending all of their time studying and learning about foreign terrorist organizations which have not gone away right I mean Al Qaeda is still out there Isis is still out there uh al-shabab is still out there and they you know you can't turn your focus away from those the one thing I think about the domestic extremist threat though that we also have to keep in mind is that it is not completely separate from sort of the Russia information right because the generation of so much disinformation I mean this is just like it's like a fertile ground for our adversaries to say let's just put some more seeds of political division among these people who are already polarized and just make it worse and so you know it's it's easy for them well and Andrew that's happening this week we covered a story on Monday about the Georgia district attorney fani Willis and some of the special grandeurs being doxxed having all their personal information put out on the internet including their home address the addresses of their businesses their family members their children's names their children's schools can you imagine and the law enforcement officials in Georgia who investigated so they couldn't get it down because it was housed by a Russian company so this is exactly what Mary's talking about this toxic combustion between Russia's desire to see Trump Prevail in this case in a prosecution in Georgia and the stirring up and stoking of anger here at home so in the Mueller investigation there were two types of charges that were brought in connection with Russia specifically one was active measures and one was sort of the hack and dump which go to exactly what you're talking about so active measures is um social media and and really trying to sow division uh and which obviously um I wouldn't say that's the cause but it certainly is that's now here we don't really need to have a foreign interference for it we have it home Crown uh and there was you know actively supporting uh candidates other than Hillary Clinton on the Democratic side and suppressing the black vote and supporting Trump uh and denigrating other Republican candidates so very very pointed and then there's the hack and dump is that hap that's going to be going on with Russia China other countries as well I'm that's going to happen I'm less concerned about that for our upcoming election than as we were talking about before we just came out I'm really concerned about money pouring in uh from Russia and other places and other places and to use Mary's term There Is No Holds Barred because so you know Putin as you've mentioned has every interest to see because of his particular situation to see uh somebody in the White House who's going to side with him and and stop funding the Ukraine war effort which used to be supporting Ukraine just to for everyone to remember was something that was a core Republican value um before um Donald Trump and um so you're going to have um Putin doing everything he can to support Trump including financially so for instance when people are saying well his money is being drained uh that yet I think he's going to get lots of foreign money and the problem is that that takes a long time to investigate and meaning too long uh and we're just it's right now that to make everyone really depressed but there's no way to track that and to make a case and to prevent it um I think unless you get really lucky before the election which said that at that and at that point if it's Trump or an ally it'll all be pardoned or not investigated so that to me is you're gonna I just think that's where the main issue is and then obviously it's marrying those very well because it's her day job um which I like to think is the podcast but it's not it's becoming so Mary does this amazing work at icap um dealing with domestic extremism and domestic Terror groups like The Proud boys and the earthkeepers ensuing them sibling and I just think whatever Russia was trying to foam and is something that is very much now embedded in our country and will be regardless of whether Donald Trump disappears tomorrow you know as someone who had a senior role in the Mueller investigation and what you were investigating was whether these comments Mary's talking about Russia if you're listening if you look at what's happening now I mean his his position on the Ukraine war is it would end in 24 hours if he was reelected that's not because he'd help Ukraine win it right the opposite is true he would give it back to Russia um and you look at that call that's because they all speak Russian that was his comments about Korea but but you look at the circumstances that tipped off urine probe right the Mueller probe and then you look at where both men are now so Putin's soldiers are facing attack and artillery from weapons largely funded by America's President Joe Biden if you think about what Putin was willing to do because Hillary Clinton pissed him off and you look at what Joe Biden has done it's so much Graver even by Putin's View and then you look at Trump in 16 he was literally running for kicks he got bored his TV show I think flamed out so he ran for president now he's running to stay at a jail do you worry that we have a failure of imagination to predict and prepare for what Putin and Trump will do together this time I just so I think it may be that I just think it is very hard if let's just take the money piece it is just um because we're a democracy and we believe in the rule of law for now um exactly but the but part of that is that you can't just be up on to use a technic term you can't just have explain that though so you can't go get a A wiretap or a fisa which is sort of a national security wiretap without having probable cause and you have to go to court in my circumstances and and get approval for that kind of thing and that's the way it should be and we were both in the government and we accepted that as as part of what you have to do and so what you would need is not sort of me and Mary speculating about this is this guy has to be what's going to happen because you have two people who don't believe in the rule of law and as you said they have every single incentive to do this and they don't care as long as they would get caught after at a time when it doesn't matter anymore um and so that doesn't so that's not probable cause having a motive is not enough so you would need to have more than that in order to trace in the money um I do think in terms of disinformation um it is that is one which um a recent decision at the fifth circuit is I think is just an Abomination because I think the far right has really weaponized the First Amendment whether we're talking about the 303 creative case which based on the First Amendment for the first time I think in our history has allowed discrimination against gay people um and in spite of the fact that the state had made it illegal to do that um saying that it's their First Amendment right to discriminate um and in the fifth circuit the most recent decision is about the preventing the Biden Administration from having Communications with social media both of us it was a better decision than the district court had that's for sure but it's hard you know that that's why and this is about covet disinformation I wanted to explain this so we used to be in this situation when um so when I was at the FBI let me just give it a very concrete sort of hypothetical example um a military leader calls up and is very upset because information is on let's just say Facebook but it could be Twitter and because that is revealing the identity of uh senior State Department official or military leaders and including calling for their violence uh calling for violence with respect to them and we knew what these social media companies internal policies were which is that at least at that time most had very good policies about not having that on their websites so depending on the level of threat um and this let's take an example which is really serious I would call The General Counsel of Twitter and say I'm not telling you what to do but we don't have authority to tell them what to do but I am raising with you this information because I'm not sure it's gotten to your level and we think it probably violates your policy which is X we think it meets it if you know you actually have to make that decision usually the general counsel is incredibly solicitous about thank you so much no it hadn't reached my attention they usually get back to you as to what their decision is and you because you want them to take it down obviously if they didn't take it down you'd have to figure out your legal options but I never was in a situation where they wouldn't do it because we wouldn't make the call without there being that kind of concern anyway that is the topic that the district court and now that the circuit is as Mary said in a slightly revised way has said no this is part of a woke um agenda by the by the administration and we don't want those kinds of calls you are trying to take down conservative speech you're trying to stop people from uh putting out disinformation about covid um because the by Administration was very concerned about all of our safety in in this country and and obviously it's a it was a global issue um and I remember what the oral argument one of the judges said well isn't that something that they they might because they could wrong wrong I mean this is like science actually is not debatable on something like that there's hard evidence it was really a shocking comment from the court um so anyway it's a real problem because there is a way to try and have a public-private partnership and this is trying to put a wrench into that issue and I think what an important imported this idea that these companies were going to feel coerced by the government now it's certainly only possible that companies would be could be coerced by the government but what the examples are not coercion the examples are you know we're in a pandemic we've got information that we're doing the best we can to try to get out to people to try to make sure they're safe and that public health is safe and um and to take down some of the disinformation and so it's really just about communicating and trying to make the best decisions possible under an extraordinary circumstance so to think that that's coercion it really was a step pretty far well I like that we kind of have moved this way because I think what I wanted to lay out with you guys here um without my producer who's here trying to get me the break or some of these um are some of these structural pieces because I think texts of the brakes should be laid on these pillars one Putin and Trump are far more desperate than they were in 16 when they clearly colluded right may not have warranted charges of a criminal conspiracy but collusion was established by the Mueller prep we can name names Elon Musk is now in charge of Twitter and he has greenlit white supremacy white nationalists violent rhetoric violent images and it's it goes beyond politics I mean there's no stuff on Twitter in the aftermath of mass shootings it has never been there before and pro-russia and anti-ukraine right so we so we have two men that colluded in 16 far more desperate the stakes much higher we have social media where all of their messages are Amplified and circulated amongst their followers we have someone who has already revealed himself Elon Musk is interested in platforming the worst elements who happen to intersect I won't say that all of trump supporters are among that group but all of that group seems to prefer Trump over by then um and and then I want to get to the third piece the the institutions in which you both served there's a very real conversation to be had about whether they'd exist in another Trump term I mean and it's not just Trump actually Rhonda Santos also has a platform of basically dismantling doj and the FBI if you take those three positions and the normalizing of the assault on the rule of law where are we well I think you know the first thing we know that Trump would try to do because he's been very vocal about it is he would turn the doj into his own weapon and he would come after everyone who's been investigating him and every political enemy I mean he's not even he's not even trying to hide that he's he's because he's not on Twitter we miss it but it's not true social if any of you know how to find that yeah that's what he says and the thing of it is you know at the beginning of his first Administration I think that there were actually a number of very very fine public servants uh who thought you know they might not be all in for everything Trump stands for but they will go back into the administration in high level positions um and you know try to do their best to keep things afloat now I'm not necessarily going to say nice things about Jeff sessions because he had his own uh you know misogynistic racing racist uh problems himself but I think a lot of other people at a lot of levels including at this at the cabinet level thought you know we can keep we can keep these Institute tuitions you know within the mainstream we can keep doing the things that they've done uh throughout their existence the Department of Justice know this because you were involved in the transition I was there you talked about that sure I mean uh the people that came over to doj to talk about National Security were um you know Jesse Lou and Ken Weinstein people who'd been prosecutors for years people who had served in high level positions in National Security and elsewhere at the department Andrew also met with the transition team these were people who I know personally and I've worked with for decades and they were doing a kind of a transition that you would expect in terms of asking the right questions getting up to speed because you know when a transition occurs it means a new team of politicals come in all the career people stay and I I was a career person but uh but I wasn't going to be staying in that acting Assistant Attorney General for National Security position somebody else was going to be coming into that position ultimately and so they need to know what's happening what in National Security what are the threats what's going on right now because a lot of it's classified the world didn't know about that we had threats to Airlines we had all kinds of things that you know weren't public at the time Mary was engaged in the peaceful transfer of power yeah yeah which like exactly platform it's endangered um and and I guess what you're saying is they were normal they were normal but you know what we saw is all the normal people got fired you made a face yeah so we added to slightly we haven't talked about this but so I had a transition team also it's like it's called The Landing team yes and you prepare these huge binders as part of the transition um and yeah it may be because that was national security and at the time I was on the criminal side and sort of left the FBI it was now at Main just to some in the Criminal Division um and National Security there tends to be it tends to be more apolitical in some ways and it tends to also be like there's a enormous respect within the IC and then internationally there's just a very tight-knit Community um because I mean it's not very it shouldn't be that controversial it's you know it's like you're against terrorists and terrorism um so on the criminal side um art it was it was different so it wasn't like Jesse living can't Ken Weinstein who I love and adore and really respected and um the thing I remember is the three people who came in um first they hadn't read anything like we had these huge binders nothing but the main thing was um there were three white men that was the first thing that struck me and we were three people and it was me um and a friend of mine when I remember when I got to the FBI and I said they're all white men and a friend of mine said no no at the FBI you are the diversity um uh so it was me um and an Asian-American woman and an Hispanic man um and that was sort of very sort of Representative of that Administration but only one of the people on the other side of the table had did we even know um so it wasn't the same caliber and um just didn't have any experience so it was somewhat surprising because you there was just you know I think um you know you expect as a sort of seriousness and and that happens uh across administrations um and both of us have served in in all sorts of administrations for for decades it's because we're old I'm old sorry it's good for yourself um and so speaking old great again so um you know that's in regardless of what which whether it's a democrat or a republican there's just a lot of experiences but can I ask you I mean I mean sliding doors my favorite movie ever I mean the slide the slightly investigating Mike Flynn right don't you already have Flynn on a wiretap with kislyak I mean like isn't this so you're like hey here's the binders we're on to you I mean what was that like Mary Mary's like this is a perfect thing about this before no so um well she's we have not talked about it no like but this is perfect now we were not telling that to The Landing team um The Landing team was frankly coming coming in before a lot of that became public and I can I can speak about things publicly because the report the FBI report of my interview with the Mueller investigation about this whole thing is now public so uh I reread it today so that I wouldn't say anything that was not public but you know it came to the FBI's attention they were about to close down their investigation of Mike Flynn when they learned about these calls he had with the Russian Ambassador um Sergey kislyak and the cons nobody ever lies to anyone that isn't Russian just just yeah keep going um so this is December right right well this is when the calls took place but I learned about them at the beginning of January uh when uh Andy McCabe at the FBI called me um and said they were concerned because some of you may remember that um uh one of the things that President Obama did at the end of his term was issue sanctions against Russia for the hacking and the interference in our election because even before the Mueller investigation there was a very very significant intelligence Community assessment of Russia's interference in our election and some of those sanctions included expelling 35 Russian diplomats from the U.S um and the calls that we became aware of that Mike Flynn who was going to be the incoming National Security advisor to Trump those calls took place right on those dates uh of of when Russia decided they weren't going to do any retaliation and everything was kind of surprise everyone was kind of surprised why wasn't Russia going to retaliate when we kicked 35 of their diplomats out of the country well as we know now which has been publicly revealed you know Mike Flynn was having conversations basically saying just chill uh Trump's coming you know don't take any drastic action now I won't get any more detail to that so why do we care about this well we care about this because obviously you know it is troublesome that before his administration's even in office he's having these conversations but what became even worse was that when some of this leaked and it was reported by The Washington Post um vice president Mike Pence went on National Television the Sean Spicer went on national television and said we've talked to Flynn he did not talk to kislyak about these sanctions we've talked to him and he says he didn't well we're sitting there going that's not true we know what he said we know he talked about it we know he brought them up it wasn't like he could have forgotten that they were talking about you know other things and he forgot that that this was mentioned he's the one who started the conversation so our concern then was um the Russians know that those conversations took place so they now either think that the National Security advisor is willing to lie to the vice president of the United States or that the vice president is in on it with the National Security advisor and covering up for Russia and so they have compromised they're compromised so what do you do well that's what because like this I mean here's and I and I I'll explain why I came back to this I think the two active Federal criminal cases against Donald Trump deal with election interference and Trump is a national security risk my experience in covering Trump for eight years is there are no new Trump stories I wake up every day and I open the New York Times app as soon as my eyes are unblary and they all fall into the same categories of trump cheating in elections or just Trump cheating and Trump in Russia all of them so so tell me so here's another thing it's not in the binder really what you do when the incoming National Security advisors right so what do you do I mean we had discussions because we've learned about this actually even before transition and we had discussions about who do we even call we're not even sure who is the right person to tell this to right um and we had some disagreements with the FBI about what we thought that it was necessary to to you know um once transition did occur we thought it was necessary to alert someone over there and so um some really kind of bizarre things happened while we were still the Department of Justice and FBI trying to work out the approach without telling anybody and this won't surprise you Jim Comey sent over some agents to interview Mike Flynn and shocked uh shocked yeah and I was sitting in a meeting with the acting attorney general Sally Yates and we were actually talking about you know who should we contact over at the White House to give them a defensive briefing let them know that this is what had happened and she got on the phone to call Jim Comey to say Jim we're going to go over and we're going to talk to him and Jim said I just sent two agents over to interview Mike Flynn right now um and so we were not happy about that because there's protocols it's not that they shouldn't interview him but when you have an FBI agent's interviewing the National Security advisor at the White House you you talked to the general counsel the White House counsel about it you work this out you talk to the Department of Justice about it um just so everyone knows the FBI um it likes to say it's an autonomous component it but the um which is like a you know because likes to think it's independent but the FBI is a part of the Department of Justice so the FBI direct dependence is like in spirit yes right it's on the same team right exactly what just because he's not here what what would comey's defense of the note be there is no defense I mean Mary and I are sort of like you know we famously agree on everything but you know on Jim Comey we are like there's no daylight um exactly um there's there's no defense for that I mean you report you report to the deputy attorney general and the Attorney General um I don't think with Jim it particularly helped that they were women um I think he would have done it anyway but I don't think that just I just don't think that's it was a particularly useful fact for his staying in the chain of command um and could we also just what happens there is that Flynn lies to the FBI agents which is why he ultimately gets prosecuted for lying to the FBI and that was Pete's truck and and they didn't go there with that at all as they sort of are trying to get him to tell the truth because they know like Mary can't say this but like let's just say the conversation that somebody has with somebody who's in a a Russian in this country who's who's an ambassador let's just say there might be a very good chance that that's recorded um so spy on those kind of people yes I mean it's it's what's called um uh there's certain types of electronic surveillance that are called establishment ones where um you know every every country does that it's just part of the spycraft let me just ask this one question that's never made sense to me Mike Flynn would have known that we would have been recording Sergey kislyak why does he lie this is what has boggled my mind right like he's he he's been in National Security his whole career and so the the sort of the hutzpah of having the conversations that that he had was was pretty amazing but you know I don't think I'm going out on a limb there he's changed a lot over his career yeah um and I think I think I mean I think that's we've talked to this I think Mike Flynn I mean there's a reason you know uh President Obama famously is one of the things that he told Trump during the transition was basically to warn him to say whatever he was like Flynn was into leading an agency that was important he's not that anymore my limited experience with him you probably hit more was I mean some things something's off um and you can you know sometimes you meet someone since then that you can just tell just if you meet him something's not right and I don't mean that in a derogatory way I mean there's some issue and so that felt least worrying about his feelings right I mean he plotted the Insurrection and he still is pardoned and he you know absolutely I mean he's he admitted right twice to committing a crime and then his defense when he withdrew it was that I lied to the federal judge when I said I was guilty twice so that so he exactly so I both admitted to underlying crimes which by the way he did and then said I committed perjury which was well you know I mean it was just and by the way he does that change of heart when he gets a new attorney guess who Sydney Powell ring a bell so I want to use this as our as the pivot to the two Federal cases against Donald Trump um and I'd love for you to go back and and share anything about you and Sally I feel like that's the scene out of a movie and Sally it's going over to the White House um but you have to work into an answer but another episode is it we should give you a whole episode we should well actually to answer that what was that let's see were you guys that get in a car and you're like yeah how did that go what happened what happened is after Comey went over and then the agents came back and reported and we all thought it seemed like Michael Flynn line we still had this issue if nobody had told anyone in the White House that Flynn apparently lied to vice president Pence and so one night I got a call at home and Sally said I want to go talk to um the White House counsel Don McGann and I want you to come with me and I think there were two reasons for that you know she was a holdover uh you know political pointies leave all of their jobs in government at transition but they can't leave the a non-political appointee at the Department of Justice because only a senate confirmed presidentially appointed appointee consign foreign intelligence surveillance uh orders and so she there every transition one stays she was the one who stayed until of course she was fired on January 30th for not defending the Muslim ban but that's a whole nother episode a whole another story so she says but so I think because she was political and I was not I was career serving in an acting capacity with almost 25 years in the department I think she wanted a witness number one and she wanted somebody career to be in the room um so we drove over and we went up and we met with dom again and one other person James Burnham and we told him exactly what we knew and was he like yeah I know or was he oh no way like what because I'm always surprised that these people are surprised right like what did he say so you know first of all I think they were really shocked um but trying not to look shocked um and on that meeting really asked very few questions um but one question two questions were um is there a criminal and it would it well actually dime again said would it be okay if I ask you if there's a criminal investigation going on of Flynn and celier said it would be okay for you to ask it would not be okay for me to answer um I love Sally yeah it was great it was the perfect answer because again that distance right between the White House and the Department of Justice particularly when we're talking about somebody who's in but we know there was because Jim had sent two agents over right well this is another interesting thing because there was a whole debate about is this a Counter Intelligence investigation or a criminal investigation because the only crime would have been potentially A Logan act crime so Logan act but once he lies it becomes yes but that's after they've already gone to interview him right so once they've interviewed him these lies then we can be thinking about a criminal investigation and of course in Candyland the Trump person always takes the criminal path right like it's like it's like he might have been standing at like the intersection of counterintelligence quiet secret no one will ever know and crimes and like from people always take the crime I just just just to put in context though how like just how far we've come this is Mary and Sally it's going to the White House because of a sense of this is what they're entitled to know as the people who are going to now be the custodians um of the White House and at the justice department and a sense of what is required um and I mean all of this just fell apart but that's just to put in contact of that trip is because of what the Department of Justice is supposed to be yeah we we thought the the vice president had been lied to and by somebody who was compromised and he needed to know that and the other question that Tom again asked was what can I do with this information and we said you can do what you think you need to do with this information um and so it wasn't a very long meeting about 15 minutes we went back to our offices and the next morning Sally called me I was in my office and she said Don again called and wants us to come back over here some more questions and I'll tell you honestly and again this is all in the my interview that's been made public um it really went pretty much like the first interview I think that they had I think they were so taken aback when they heard this that they needed to like sort of sleep on it and then ask a few questions but mostly it was the same things that we had already done the previous day this was a little wake-up call to Don McGann as to like a little window into what his life was going to do oh right who famously becomes 30 hours later the star witness of Mueller's volume two I mean it's I mean it kind of starts in that room by the way he called um in the interview when you know because we interviewed like Mary and and Sally and and Tom again repeatedly came in to keep on telling us more information but he um called the Oval Office the Magic Kingdom that's time again Tom again um because this is where I feel out of my depth as a cable host I don't know what that's about is it that was because um you know when he said that he takes notes remember the whole battle oh yes Trump hates lawyers who take notes right exactly because um we know that good lawyers like Roy Cohn um which would be disbarred lawyers like Roy Crown um uh they don't take notes but the reasons Don McGann was taking notes was the same reason he would think of the oval as the Magic Kingdom because like I mean it was just a real experience pulled through to the [Laughter] the tip of War I mean so so the Mueller team successfully prosecutes Mike Flynn Paul manafort George Papadopoulos there's a deal with the deputy guy Gates is that right um and they all get pardoned I mean what does that feel like well not the not the ones who cooperated right um it's just fascinating to me that like the the people who are all pardoned it's like everyone who didn't cooperate I mean you know this is I mean I'll give Jim Comey um some props for this is when he initially sort of analogized and said this is like talking to a mob boss I remember at the time thinking oh Jim that's like Hyperbole and he's totally right and there was exactly right um and I just didn't I hadn't seen it um so the idea that you'd pardon the people who didn't cooperate I mean it's completely consistent and and that's what's going to happen if he's um you know if he's in the white house again that's gonna all of the people who are charged the January six people proud boys Oath Keepers um this is this is in sort of us speculating I mean it's just that's which brings us to Full Circle I think where this started is who is going to be the Attorney General if he wins again who's going to be the Secretary of Defense the Secretary of Homeland Security the chief of Mike Flynn right I mean it's going to be you know Clarks and the people I mean Jeff Clark was there already for a day 10 minutes um you know for for our audience at New York minute yeah yeah so let me ask you about um let's take them I think in terms of what even Trump would agree with US represents the gravest legal threat to him and that would be the Jack Smith case into the Insurrection and the coup plot um what can you just walk me through the trajectory of that case when and if you think there'll be a trial and what you what you think um but do you think the chances are that that's something that happens and is concluded before people vote um I certainly think that the the district court judge in D.C Tonya chuckan she's very much trying to get this to trial she set the trial date for March 4th which was not as quickly as the government asked for but it was far more quickly than Trump's request which was 2026. um uh and sorority and autocracy and it's a doable thing but you know one of my concerns is one of the things that Trump's attorney has been clear that he's going to file although he's already late he said it was going to be the first week or the second week which are now passed is a is a motion to dismiss the case on the grounds of executive immunity presidential immunity which is not totally unlike the the what we're seeing with Mark Meadows and Jeffrey Clark in the Georgia investigation they want to remove their cases to federal court so they can file motions to dismiss on the grounds of Federal Officer immunity but the immunity is a little different as president um and we've never it's never been really tested in the courts in this context because we've never had a president charged with a crime like this um based on things he did while he was in office so that he still hasn't filed that you know he can wait until the deadline for pre-trial motions to file that if he wants right and then we have a full briefing schedule then judge chutkin will probably rule quickly she's ruled quickly before she had the Trump B Thompson case which was about the house select committee's uh subpoena or request for for presidential records for its investigation she rolled very quickly but then he'll be able to appeal that because we're talking about immunity and so you don't you can't be made to go to trial if you're actually immune so he'll appeal that and probably the DC circuit will probably issue a very fast briefing schedule and let's just assume that he loses there he can seek cert in the Supreme Court and then it's up to our Supreme Court to decide do they do a fast track or do they or do they do a slow roll and so and and do they have five votes for a stay right I mean because in order to prevent the March trial date there would have to be a stay um get out there I'm going to try and be optimistic I I think that the I think the argument for presidential immunity is not strong particularly given these facts and I I don't think that even uh for the three justices appointed by uh Trump that day necessarily have a lot of love for Donald Trump and what he stands for I do think they will get two votes you can guess who that will be um but you need more married to the Mob one and yeah so and I do think that you know if Mary said an appellate lawyer so well she's not anymore but um uh uh so I I do think too you know we can learn something from the Trump V Thompson case right because that's when again where executive privilege to you know tell people what that is yeah executive privilege is uh really a Communications privilege to protect the free flow of communications within the White House by the president and those of his closest aides right and that doesn't and so that means that they can be privileged against having to testify about what they talked about or turnover documents about what they talked about in some cases if they fall within that privilege that privilege is not absolute even though the president uh many presidents of both parties want to say it's absoluted actually is not absolute and it can yield to an overwhelming and compelling government interest and what was interesting about how select committee's request for documents presidential records as part of his investigation is Donald Trump was no longer the sitting president yet he invoked executive privilege President Biden who was the president said I'm not invoking executive privilege so you had this Clash of a current president and a former president so the first issue was can he even can Trump even claim executive privilege there's some precedent for former presidents being able to claim it so that went forward and then it was rejected because what the house select committee had asked for was clearly within their constitutional authority to gather information for purposes of potential legislation and so under a variety of different tests that could possibly be applicable the court said you don't you don't have executive privilege here that that decision was stayed that was a decision of Judge chutkin went to the D.C circuit they ruled the same way that was stayed while this went to the Supreme Court the Supreme Court then they would ask the Supreme Court to stay in other words stay the order for the documents to be sent to the has select committee the Supreme Court denied this day and denied cert and that me and and and the two descents of the two you're talking about well there was only one vote not to stay it and I think we all know who that is um and so so that's a different situation than whether he's got immunity from Criminal culpability it totally is but I think it does show that this court does care despite all the other gripes that many of us have with this court um they at least some of them do care about the institution I think that they find January 6th and what happened there I mean the Supreme Court was right in the middle of you know it's right across the street from the capitol there the mob was you know coming onto their grounds to the the fences went up around the Supreme Court just like they did around the capital right they lived in that environment based on this violence and I think they're appalled by it at least most of them so I feel like um justices including Trump appointees Amy Comey bear Cody Barrett and and Justice Kavanaugh um I think you know they care about the preservation of democracy and so that's my optimism and I'm not always optimistic no I'll take it I'll take it um I want to ask you if you think Jack Smith will win if the trial yes yes we should all go home now I'll tell you Mary and I have talked about this which is our biggest fear um in all of these especially let's just take the two Federal cases because that's the area that we really have expertise in um it's just not fathomable to either of us that there would be an acquittal there has to for an acquittal it has to be unanimous many people always think it has to be unanimous for a conviction but it has to be unanimous either way it's just not possible given the proof that that we've seen that that's going to happen in any rational world I just don't think see that but the reason if there's anything to worry about it's a hung jury a Hungary happens when the the jurors as many of you may know from sitting on a jury that if you don't if you if the jury just can't decide and sometimes that happens when you just have one errant juror I once had a juror who like was waited for 10 days copying down exhibits um because he wanted to write a book about the case and but at least he then voted to convict at the end of it after causing me no end of agita but the the problem with that and the reason I raised that experience was that that was a juror who really really wanted to be on it was a very high profile case in Enron and he wanted to be on that jury and so the real concern is somebody who is not candid wants to get on the jury and you have a hung jury a hunger wants to get on the jury in order to hang the jury exactly um and that's the biggest issue because if you have a hung jury is as you there's nowhere in the comms World which is that's going to be spun and it always is spun by the defense as a win and in some ways it is in the sense that they get they're not compiled they're not convicted anytime there's a second trial it's it's I mean I remember Bob Mueller saying to me during the when the first case we had was that was mine and was a manafort case and I remember him saying we have to win we knew that a hung jury was going to be viewed publicly as a referendum but here the referendum is not on you know the Mueller investigation here that one juror could have such a huge potential effect on the election um because I do think there'll be a trial uh the the GC trial will go first I think that will um I think there will be at least like you know 11 votes but the the concern I have is it is there one person who sneaks on let me ask a question from the audience and ask you to start with the DC case and then answer it for the Mar-A-Lago case um I'll have you go first with the DC case and take the mileage so the question is is there a precedent for this kind of case in U.S history um so the DC case I'm going to say yes um because uh obviously there's no precedent for a former president I mean thank goodness we've not been in that situation um of four separate indictments and 91 felony counts in total against a former president of the United States the leader of the Free World um but what I would say to the issue is that if there is a is there a precedent and I think it's a really good question because it goes to is Donald Trump being treated fairly and comparably and not a subject of selective prosecution is the scores and scores of people in DC who have been prosecuted and convicted um it feels like a lifetime ago but just last week Enrique tario was sentenced to 22 years so the leader of that leader should certainly be held to account and so that's also one reason that wasn't asked I think that for judge chutkin I think that at sentencing that she will send him to jail because it's just not what um it's just not possible I don't think that the fact that you have Secret Service is a reason not to do it there are all sorts of ways that the president and you're saying that's not it wouldn't be a punitive statement it would be around this this there can't be two I mean it has to be there can be two systems of Justice in the country I mean just remember for the judges tario just got 22 years he got 22 years and this is the leader of that person in terms of what what happened I'm somewhat simplifying but I mean I just think for the judges in that Courthouse um and they're judges who are appointed by all sorts of presidents who are speaking with one voice about those cases um and about um sort of how they see them so I that might have gone on too long but I just think that there's ample precedent for his prosecution there and you really just have to look at the current cases in DC we haven't talked about Lego documents case but I know I mean this this fell into your purview in the justice department and I mean I think in government we've all been involved in prosecutions of classified document mishandling this is one of this there's abundance right yeah it hasn't been the former president in the in the past but there's a it has been other high-level government officials sometimes um and certainly lower level government officials and so the mishandling counts the counts that apply when you have um unauthorized access to classified information or National Defense information it's called in the statute and you refuse to to return it when asked that's a felony it's a it's a 10-year offense and there are 32 counts of that in that indictment and so there's ample precedent and there's precedent for people getting substantial terms of imprisonment there's also ample precedent for prosecuting obstruction of justice there are two different types of obstruction of justice that are charged in that case and one is the effort of Donald Trump and his longtime Aid Walton NADA to you know withhold classified information that the government had subpoenaed after they had learned that you know when he voluntarily after a year of of nagging him when he voluntarily returned 15 boxes of presidential records and they contained classified information the government then subpoenaed opened a criminal investigation and subpoenaed more and the evidence is is pretty clear from the its allegations but it's pretty clear from the indictment and some of these things are you know recorded statements and statements of his own attorney that they basically hid documents not just from the government but from their own attorney Evan Corcoran and lied to Evan Corcoran about whether all of the classified information was that they had taken was in the storage room for him to search and caused him to create a false certification to the government that exhaustive search had been done and everything had been returned and of course we know thereafter search warrant revealed more than 100 additional classified documents that was one of the obstruction offenses the other a set of obstruction offenses as relates to the efforts to destroy surveillance videotape when the government came um to visit uh and saw that there were surveillance cameras they asked for they subpoenaed the surveillance tape and and that's when other Trump employees uh Carlos diallavera who's now been charged in the superseding indictment uh were pulled into this conspiracy to destroy uh that surveillance tape well obstruction of justice that's been prosecuted many many times in many many other circumstances when you know you're being investigated and you destroy evidence and you can and the government finds out you get prosecuted and so there's you know the the actor here a former president that's unprecedented unprecedented but these charges are are well uh rehearsed well known to the Department of Justice and are you as optimistic with the judge that ended up with this case that that goes to trial and that Jack Smith prevails I don't know that that will go to trial before the election she did send set a trial date May 20th but she has since then been very very slow we just today got protective orders with respect to both Donald Trump and well not in a protective order is because there's so much classified information at issue here you can't just like turn over all this discovery to his lawyers and and say go you know look at it you have to have a protective order that says they have to be cleared uh have security clearances and they can only look at materials in a special sensitive compartmented information facility or a skiff and you know all these things they have to agree to and it's been months months and finally we have that protective order which means the classified information wasn't able to be shared until now so it's already injected delay we have had outstanding motions for a conflicts hearing because attorneys for these aides while NADA and d'alavera also represent other um former and current Trump employees some of whom are expected to give very damning testimony against the very people represented by their same lawyer and that's a problem and so she hasn't ruled on these things she hasn't even had a hearing on them so she her ability to delay things is is troublesome um I I do think that if in when like ultimately unless he becomes president and the whole thing is you know dismissed uh if it goes to trial the evidence is overwhelmingly strong based on the allegations in the indictment and this is their importance that judge chutkin put her case the D.C case first because you know if she did it uh she said you know what I'm going to slot it in right after Mar-A-Lago she's then Hostage to the Slow Rolling yeah um because the things that Mary is talking about a protective order uh conflicts hearing these are routines yes I mean this is kind of thing a judge just does immediately to get the case moving and especially in a case like this with their eyes of the world or upon you um and so having judge checkin realize this has to go before um is you know she basically is like I'm not going to have to deal with that and then she obviously called Manhattan and talked to the judge there and I think I think the judge and the D.A here deserve an enormous amount of credit for saying just because we brought it first we're not going to stand you know in your way knowing that this isn't more important DC case is more important I want to give both of you a last word on on what the podcast is it's called Prosecuting Donald Trump and it kind of rolls off all of our tongues right like there were four indictments I work in television three of them happened in the summer so there was a lot of skin to get indicted this week I can get a flight it's you know there were a lot of logistics right so you lost you lost some of the like holy you know what um it feels like that's something that should never roll up any of our tongues right Prosecuting Donald Trump he's someone who millions of Americans voted for and maybe more importantly would vote for again what does it say about your life's work that millions of Americans would vote for someone again who's being prosecuted in four places well it's it's devastating and I hope that if they they listen you know sometimes uh we make jokes and sometimes we're light about things because I think we all have to have levity in our life but we also oftentimes come back to the gravity of the fact that we even have a podcast called Prosecuting Donald Trump who would have ever thought that that would be necessary and one of the things we we really do try to do is talk about the legal issues and the strategy and the law so that hopefully people who are coming in with an open mind even if maybe you you know favor president former president Trump maybe you um think he had great policies maybe you even think that there was a fraud in the election that if you listen um that maybe you will learn something about how these statutes operate and how what he did at least based on the allegations was criminal was unlawful and more importantly is a threat to our democracy it's really just especially the January 6 related cases both of them they just go to the heart of our democracy if you can undermine the will of the voters and prevent the peaceful transition of power and that's exactly what was attempted here that was exactly what the whole scheme was um you've lost the Democracy um and so you know it sounds hyperbolic but it's just not because that's the reality that we're in so I hope people will appreciate that what we're trying to do is um really explain you know how the laws work how the criminal system works what the rights of the defendants are and why it's important that they get due process and they get a fair trial and none of neither of us don't want a fair trial but we think that the that the jury a jury who listens to the instructions of a judge should find guilt in these cases assuming the government can prove what's in the indictment it's really hard to top that I mean it's totally right I mean I I that was sort of the idea of this was to for people who are not sort of living this day to day and there's just so much Arcane material I mean we were talking about just even the last 12 hours Bonnie Willis is definitely keeping us on our toes because it's just there's so many filings and there are a lot of new issues and so a lot of this is explanatory so that's sort of the what I'll call the micro um and the of sort of walking people through this so they can have some tools to understand it and that's where we've just been prosecutors for so long and and have sort of similar careers with different embassies so it sort of helps guide people through that and we can sort of help with sort of the Judgment calls that are being made um and strategy calls um so that sort of micro and the macro which I think because we've been in the department for so long and and the reason we were in the department is why I think it's probably some of the reason that we have levity because it's very hard um it's nothing to make light of um and I think that I think the biggest lesson from the Trump Administration is that things that I took for granted um that were constitutional rights or in my in Mary's World um Norms is to the Department of Justice as to how you behave um that that's all evanescent um and that things that you just thought were fundamental to America aren't and that um someone just said I think it was um the the president said in Alaska I think was it just yesterday that it's something that every generation has to fight for and I thought that was that was unfortunately I mean I think that's right and I think that we're living through that and I think we're going to live through that as I said I think regardless of what happens with Donald Trump it's going to stay with us and it's going to be an existing struggle to deal with that phenomenon of um making sure that values that we care about are remain core American values that can be topped I just have to say as a News host um we stalked both of you long before your government service was over and just that you all have access to them is such a gift there are people who know the insides of the institution and and do what they do because it's the right thing not because of any political outcome so thank you both for using your platforms and for coming on our show and doing your podcast thank you so much foreign

Channel: The 92nd Street Y, New York

Views: 219,959

Keywords: 92nd Street Y, 92nd Street Y New York, 92NY

Id: v5yOh6VNNEY

Length: 62min 14sec (3734 seconds)

Published: Fri Sep 15 2023