The Trump Indictments with Melissa Murray, Andrew Weissmann, and Lawrence O’Donnell

[Applause] thank you so so this is the new room this is the uh this is the Off Broadway Theater this okay all right we can work this room I've never been in this room before uh Andrew Melissa thank you very much uh for doing this um this is going to be strange for me and you'll be able to detect this by the time we're about 8 minutes in I'm going to need a break they are usually 4 minutes long and we will skip the commercials but I'll have to just gather my thoughts and then come back for another eight minutes because I've never done what we're about to do I'm I'm a little a little scared of this this no commercials thing uh so there are two authors names uh on the cover here Melissa Murray and hre Weissman you have some co-authors in Jack Smith Alvin Bragg uh fonnie Willis uh and and Melissa what uh first of all what gave you the idea of and by the way thank you this makes filing at my office so much easier cuz we had these things I mean just stacks of these things you know and we we're losing them them and now we know exactly where they are all the time uh what gave you the idea to put them all together like this so thank you all for coming here I know you've braved incredible weather to be here and we really appreciate it um one of the reasons why we decided to put this book together was because we like all of you are interested in what's going on we are teachers first and foremost we both teach at NYU we also are contributors at MSNBC and part of our job is to take complex topics and Concepts and break them down into digestible bits for people to understand people who have some legal training no legal training and with these indictments which are absolutely historic the first time we've ever had a former president criminally charged in this country's history it was absolutely imperative that the public be able to follow along with these trials if and when they actually occurred but even if they didn't occur to understand the nature and gravity of these charges and so we got the idea that we would take these indictments collect them and then really granularly annotate them so individuals could follow along understand what choices were being made we could explain those choices explain the players some players go across different indictments and that's important too and so we wanted to make this a guide a handbook that the American public could use as they followed along because we thought it was so important for them to follow along so we have been doing you might have noticed uh the the cliffnotes version of this at 1 p.m. on uh MSNBC every night and so it's a this is a peculiar situation in which the original material is actually becoming available to you this way after we've been playing with the cliffnotes for months already uh and so so Andrew for for readers let's say they've been watching you on on my show and others and watching Melissa and you know reading the times uh what what will they get in here uh that they don't already have from the perspectives they've developed through the shows and the times and and reading what they have written well leaving your show aside you know one of the one of the um downsides of what we do on air uh is that I sort of analogize it to speaking in Haiku um as you said you sort of do these eight minute blocks and then there's a you know there's a break so you could you can um sort of suggest a theme but you don't have enough time to really get into the intricacies of it and you know part of the um Challenge on air is to figure out how do you succinctly boil something down to make it to make a point to make it usable but to not you you don't have time to really explain a lot of nuance uh and so either a podcast or in a book you ly have tons of time to do that um and so let's just take the New York indictment since that seems like in I hate to say this but I think that's the only indictment that will actually go to trial before the general election um I know this this is like I'm going to be the downer in this group um and by the way I also wanted to thank you all for um braving the weather as I got here I was thinking about that quip of I wanted to get out of my wet clothes and into a dry martini um but this this is water um uh so um the the New York indictment um there's a lot of discussion about why it's a felony what are the different theories for um that Alvin brag used for uh being a felony uh what are the legal bases um for that in the introduction Melissa and I spent a lot of time talking about um the argument that could be made for why it's a righteous prosecution putting it in a global context putting in the context of other cases that have been brought which is a that actually is a really serious thing for any country when you're charging a political leader is thinking about uh not legally is it selective prosecution but sort of is it something that is appropriate if the person was not name Donald Trump or any political leader is it um fair in the way you're treating them and I always analogize this in our introduction we talk about different cases I analogize it to work I did in special Council Mueller's investigation which involved Ukraine where the president went after his female political opponent um and one of the things that he ran on was lock her up uh that may sound familiar because that political Leader's campaign manager was Paul maniford um so there's um but so there that was that is sort of a show trial that happened in Ukraine and we talked about what are the attributes of a show trial and why would you what were the arguments here for why that the New York indictment actually we go through each of them is not a show trial um so by the way this is why you know it's TV might be better because it's it's shorter but this is the truth is I can't tell you how much I love this because normally at this point Melissa ryerson's in this year yes from the control room my brilliant executive producer telling me we got to go and we gotta we got to go sell some commercial stuff and so I just love hearing paragraph upon paragraph Yes so by the way um and you know you're going too long when that it's not just in your ear but then in in your in your ear it's like and we're done yeah uh Melissa uh one of the things that fascinates me about this and one of the things I think it's really valuable for is for historians 50 years from now a 100 years from now most of whom if not well yeah Mo almost all of whom will not really know how to go find indictments in you know whatever Court archives there are at that time but this will be there this okay when you say that it makes a law professor feel very sad that nobody will I didn't say law professors I I said historians they they don't work with this kind of material you can have been a distinguished American historian for the last 200 years and never written about an indictment ever not one you know and then here are here are the four right that historians are going to care about a great deal you've made it easy for them and they're going to find it um what are you hoping and these are not law professors I'm talking about what are you hoping those historians will see in this and and what kind of tool this will be for them well to be clear the book is not written for law professors um it is written for audiences who have a wide variety of experience with the law familiarity zero to 100 if you will and the idea is that everyone can enter into this book and take something out of it for the person who's thinking about the sweep of History I think one of the things that the book does very well in addition to Simply collecting the indictments is to give you a glimpse of what the last four years have really been like for us and I think because we are living in it we are somewhat anesthesized to how unbelievably unorthodox the last four years really were I mean I certainly have and it was only when Andrew and I began working on this and putting them together and annotating them I me I think there was one point where I called you was like can you believe this happened yeah that that's the polite version like yeah it was like WTF did this happen so again like we have become so inundated and you know we are part of that we're on MSNBC every other night talking about this stuff to the point where it's normalized for us but when you take these indictments together you read them in this very granular way it becomes really clear none of this was really normal and more importantly the allegations if correct speak to a pattern over time I mean if you look at these indictments this is criminality that occurred before during and after this presidency we have never seen anything like that in the history of our country and I I think just putting it all together it's like a time capsil where you're literally just letting it all wash over you again but without the sort of intermittent time punctuation like it's just like it's all just washing over you as a flood so let's go to the four which is the Stormy Daniels case that conduct was 2016 October uh a last minute arrangement for a payoff by a political candidate to make sure information about him does not become available to these voters pays $130,000 uh keeps false business records to do that uh that's the crime he's facing in Manhattan starting with jury selection some of you might be among the lucky on uh on March 25th if you get that jury notice March 25th uh that's when they start uh so let the trial is underway we're we're past jury selection we're underway this the indictment is right here in this book and I'm at home following this trial I'm watching some of the coverage on TV I'm reading the New York Times what why should I I should then pick up this book and and take a look at that indictment to see oh this is the part they were talking about today EXA exactly um One Thing by the way it although the scheme is cooked up before Donald Trump uh becomes president um allegedly allegedly um and obviously this you know this is one we we teach so we're very committed to the fact that the government has to prove each and every element um and we explain what that is and what this what is us be proved um and they have to you that Beyond A Reasonable Doubt unanimously uh to a jury uh and we also explained for an aquid it also has to be unanimous a lot of people don't understand that that you can't have an aquid without all 12 jurors agreeing that um but um what I was going to say is that the end of the alleged scheme happens when Donald Trump is President um so you he was signing checks in the Oval Office according to Michael Cohen that's right as you do yes um so um you know to me that's you know I remember the reaction to the allegations and then the proof with respect to Bill Clinton in the Oval Office and anybody who's been in the Oval Office it doesn't there's sort of an apolitical quality to the Grandeur of the institution and um the idea that that would be something that you would do you know in and sort of defile that institution is is remarkable um I do think there's parts of the trial that are not in this book I mean obviously the live witness component will be really interesting um Michael Cohen is there's going to be just tons of battleground arguments with respect to him uh the uh the state is going to be saying he's not the star witness because there's tons of corroboration he's just he's yes he's in the story but he is a narrator that's highly correr um the uh you'll hear the argument that he did everything that he did that is um bad in this scheme he was clearly doing for someone he is not the person who had sex with Stormy Daniels he is not the person who cares about that not becoming public if none of that's personal he obviously is doing that for someone in the same way when he said he would pleaded guilty in to perjury in Congress it was about not revealing information about the Moscow tower that Donald Trump was involved in so these are all crimes that you will hear were done for him um this the defense and one really great thing about this trial is that um particularly one of the defense lawyers Susan necklace is terrific um she is very well known that type that is how you want a trial to be with good lawyers on both sides she will be a formidable uh representative it is not going to be what you have seen in other cases where you're wondering about the quality of the lawyering she is First Rate um and she is going to rightly question Michael Cohen's credibility especially because he recently at in the State Trial before judging Goron the one brothera the New York attorney general um Michael Cohen testified under oath that when he plad guilty in federal court that one of the crimes he is not guilty of meaning that when he swore under oath to a federal judge that he was guilty he his new testimony is that was a lie that let's just say that's a really good fod for a defense lawyer um uh in terms of you know how the what he's going to say about that and how I'm very interest how the state is going to deal with that issue because you know there's an ethical rule that you're not supposed to put somebody on the stand if you know they're going to lie so it'll this is a very experienced State prosecution team so it'll be really interesting to see how they deal and navigate the facts and their ethical obligation uh Melissa could you talk for a minute about the challenge prosecutors face when they're putting on a witness uh who is known to have lied and worse I mean we're living in a city and certainly isn't the only one where prosecutors have put Mafia murderers on the witness stand who will testify to how many people they've murdered guilty and and and then say to the jury oh and he did this this and this and and the prosecutor's job is to get the jury to to to accept that that confessed murderer is telling the truth about this it seems like a very peculiar piece of verbal surgery to be able to pull off no this is something I think prosecutors do all the time as you say I mean most witnesses to crimes May themselves not necessarily come to the witness box with Clean Hands and I think most prosecutors realize that um that these are witnesses who are likely to have their credibility questioned or impeached through various methods by the defense and it works both ways I mean you know we talked about Michael Cohen Alan weiselberg is going to be a a witness for the defense and he himself has some credibility issues that have come up this week that will surely be discussed by the prosecution so you it's not just a question for the prosecutors I I think it in this case certainly it's a question on all sides this is sort of standard fair but again in the book we emphasize this like the reason why those witnesses can be impeached and why their credibility is questioned and should be questioned is because as part of the rule of law that makes us a democracy we have this principle that defendants are entitled to mount a vigorous defense and that's any defendant even if it is someone whom you view as distasteful or that you don't like very well in order for this system to work for all of us every defendant has to have these rights and every defense lawyer has to mount these challenges and and these are commitments that cannot be selective or itinerant they have to matter for everyone even Donald Trump so uh Andrew as you were going through the indictments um were there surprises to you and I mean lawyerly surprises I don't mean evidentiary like we all had cuz we all we all discovered things in these indictments that we didn't know just fact assertions and and fact and actual text messages and things that we didn't know about I discovered that a shower can be golden like like a golden shower at Mar well a bathroom a bathroom can be golden okay I didn't mean it quite like that take your time uh if there's any way you want to correct the record the golden toilet I was surprised by the golden toilet picture in that indictment we talked about that one this is giving a little insight into the progress and how we how we worked well together yeah we did laugh a lot yeah um so what was new you want to know okay okay go so yeah save me yes exactly um so this is going to be great the next faculty meeting at NY way um so um yeah there I thought something that was unusual it's a bit in the weeds we do talk about this which is um in the DC uh indictment the so-called January 6 indictment the one that is uh on hold um uh that was supposed to have started on Monday uh one of the really unusual aspects was in the introduction where it's clearly written as I suspected it would be for the public to be able to read it and understand the story um that is one of the things that happens when you're on a high-profile matter where you know the public is interested you you usually do a speaking indictment and you use language that is less legal ease um so that people can follow along one of the things that I thought was really unusual and smart was the way it was crafted to um say what Donald Trump was entitled to do usually an indictment is about ACC ation of what the person did that was criminal uh and what the scheme was about but it went out of its way to say that he was entitled to go to court he was entitled to speak even speak falsely um to say I won when he knew didn't that's not the crime uh and I thought it was just so smart to pull the teeth on that that claim and say but that's not what we are charging um that is not the crime here so don't get confused and it was smart because that of course is then what we heard which is oh the first amendment protects um what this the charges are here which by the way is as somebody who's a prosecutor for many many years just a couple quick examples of why that is um wrong uh and uh one is let's say you're committing a a bank robbery and you say give me all your money well that's speech um it is not protected um and then a sort of standard crime is the one that Alan weiselberg and Michael Cohen have both pleaded guilty to which is perjury that's speech that is saying something and it is a false statement um and it is under Earth and it's a false statement under oath and that is speech and you were not protected by the First Amendment from doing that so I think that that's all things that we explain but it is to answer your question I thought I was surprised they did it and I thought that was really clever uh April 25th um I hope you're not busy that night because I'd like to see both of you at 10 o'clock uh April 25th we now know is the day when the United States Supreme Court will hear what may be the well is the single most Fantastical claim ever made by a president of the United States to the Supreme Court and that is Donald Trump uh claiming complete immunity from any criminal prosecution for anything he may have done while president uh what will you be listening for on April 25th when we spend our day hanging on their every word well can I first say when they announced that they would Grant C in this case and then they set oral argument for the week of April 22nd I had been imagining that this would happen on the Monday Monday the 22 I put it in my calendar as the Monday the 22nd as did I um and so now that I know that it's on the 25th so it's on Thursday all I can imagine is Miranda Priestley from The Devil Wears product like please move at a glacial Pace you know how that Thrills me like they're just going so slow with this um the United States Supreme Court you know which I think about a lot um can move quickly when it wants to we've seen it move quickly for a lot of things um during the pandemic they moved very quickly to decide Shadow docket cases that would keep religious institutions open during the pandemic for worship um they moved very quickly when President Biden issued his vax and mandate that got through the court in record time we've seen them move quickly for election related disputes in Bush versus Gore but here we actually saw Jack Smith ask the court to bypass the DC circuit something that happens before um review without CT without a lower level review that happens in other cases because the issues were so pressing and the need to resolve these disputed facts so urgent that the Supreme Court was ultimately going to be the left word anyway let's just get to it and the court said no we're going to have oral argument in January before the DC circuit we'll hear from the DC circuit the DC circuit took its time um and to be fair to the DC circuit they issued a very deliberate methodical opinion that painstakingly went through in a very generous way every argument that Donald Trump made about his entitlement to immunity even arguments that were absolutely specious and and somewhat stupid they gave them incredible attention they answered them very carefully and they issued a really comprehensive opinion knowing that this could then go to the Supreme Court and the Supreme Court could essentially ratify it by refusing to Grant C and instead this case had been briefed before the court since February 15th and we just learned that the court is going to take c on it and not only is the court going to hear this case it's going to hear it in two months and that means the March 4th trial start which had already evaporated now becomes even later now if this goes at all it's going to be May June and we're in the heat of an election cycle the United States Supreme Court in delaying this immunity decision essentially gave Donald Trump deao immunity we're not going to get to a trial in that case and it's because of the Supreme Court and I just just to pile on because um one what Melissa is saying is when the court rules that even if even if the court says there is no presidential immunity or there's no presidential immunity that um covers the charges here even if there's some carve out um you have to add on uh 88 days which is the amount of time that the case was from the time of the initial stay but that judge chucken um ordered until the time of the March 4th trial and so she has said that that's going to get tacked on so you can just do I don't do math in public so I'm going to leave you to do the math in public um but what the Supreme Court did and I the reason I think it's so important what m is saying is I don't think that we have a functioning court system like this is not a functioning democracy and we talk about other countries that have dealt much better witholding um political leaders to account this is new here but we detail all of the sort of socalled Western democracies which have gone through this and and have done it so much better um and if you think about the Supreme Court did by delaying this and even now sort of taking this lacad disal approach Donald Trump's only interest for this is not oh I want to put the trial off any defendant wants to put the trial off and never go to trial I mean that's it's a rare defendant that's not a cognizable interest for that a court says oh that's great I'm going to grant that I mean that was not what was before The Supreme Court what was before The Supreme Court was a claim of immunity Donald Trump's interest in that is to have that decided quickly what he is saying any defendant who's saying I'm immune is saying every day that I am under indictment I am harmed because I should not suffer the appr probium of an indictment in fact we have Donald Trump saying that repeatedly he is saying that um uh under he's under a gag order in the DC case that's still in effect he's saying that interferes with his Liberty and freedom and and free expression so he has every interest in this issue being decided quickly um and obviously the government had every interest in it being decided quickly and yet the court basically as Melissa said could have taken it in December um they could could have decided this and uh when it the when they had two weeks they could have decided in one day whether they're going to take this not two weeks and then scheduling it two months out as if the parties haven't fully briefed this issue twice in the district court and the court of appeals and it's not like the court isn't following what those decisions are so to me it is just a real sign of a dysfunctional court system which un fortunately is a badge of countries that do not have a functioning democracy can I pile on no we're going and my questions are really important here you have to wait for please I also think you can't understand that decision to schedule that argument to Grant certain and schedule the argument for April without also thinking about the disqualification EXA case that they decided this week and you know there that was an entirely predictable decision like no one expected the Supreme Court to allow Colorado and any other state to sort of have this Patchwork of ballots where Donald Trump is on some and not on others but although it is nominally a unanimous decision there's this concurrence um there actually two concurrences um all of the women on the court seem to be saying these Bros are going too far and the three women who are democratic appointees went even further to say and they've completely obliterated section three of of the 14th Amendment to the point that even if we wanted to use it after the election there's no way that we could because now it can only be operative if Congress says so and obviously this Congress can't elect a speaker it's not going to pass legislation to make section three of the 14th Amendment operative and that's something the Supreme Court did and again functioning democracy the court system is a core part of that this is a court that was installed by Donald Trump like this 6 to3 conservative super majority is a direct result of Donald Trump and they may exhibit flashes of independence from time to time but one of the things that was so striking about that concurrence from justices Soto myor Kagan and Jackson was that they basically call Donald Trump an oath breaking insurrectionist multiple times four four times not that you're all four of them yeah and they also say that these scotus Bros their colleagues are trying to insulate the court and this candidate from ever using Section 3 going forward I mean that is a shocking thing I mean like it shows the tensions that are roiling beneath the surface on this court it's not a functional system and this might not be a functional Court I want to go to the tensions uh roing under you I want to get your insights about how the court works or how this court might work uh is it conceivable in in those internal machinations which I will not call politics um is it conceivable that there was a desire here that developed to get to nine no matter how much we have to contort ourselves to get to nine and three boy if they went another paragraph it would be a descent you know you I was reading that I was like this is the most dissenting concurrence I've read in a while not the most but yeah yeah but and so is it possible that there was this desire to get to nine so that on the case they're going to here on April 25th they can try to get to nine again against Donald Trump that may be the case I mean it's very clear does it work that way do they think that way yes I mean it it's very clear that the Chief Justice wrote this pruum opinion how do I know that because they drag him in the first line of the concurrence desent where they quote from the dobs case or the Chief Justice says in dobs we shouldn't do more than we have to and then here they're going further than they have to so it's very clear who wrote what um so the chief justice is sort of the architect of the pruum opinion that speaks for the entire court in which the three liberal justices concur in the Judgment um and it is likely that he demanded some kind of unanimity here he wanted a show of unanimity given the gravity of this question for the country he got it nominally and and again I think a lot of the mainstream media talked about it as a unanimous decision but he can't put this concurrence in a box and lock it away I mean it's very clear that there were real tensions here about how far the court went um if it is the case and I think it likely is the case that they wanted to be unanimous here in granting Donald Trump a victory because they will later be unanimous in concluding I think they can only conclude that no a president does not have immunity that allows him to use the offices of the president to assassinate a political rival and be you know completely insulated from Criminal liability for it yes I think that may be in the offing and they will be unanimous in handing him a defeat but that defeat is a paper tiger at that point because the real Victory came this week when they decided to grant C in that case and then schedule it for 2 months from now so we can talk about the unanimous defeat that's likely to come I'm sure it will but it won't matter because this court already handed Donald Trump a victory when it mattered so can I just just I'm goingon to just sent a little for that you're going to disent I am because I think um so I think I I agree with the fact that there is de facto immunity meaning even if they say you know what a president isn't immune they could say a president is immune but guess what by what we just did this President is um because there's he's not going to get to trial except if if Joe Biden wins then then it would um there is a possibility that it will not be I I do not think it's going to be a unanimous decision um I think there are justices who are going to at least carve out some areas of official presidential cont that you do have immunity for and there's even just to guarantee that Donald Trump will not go to trial there is a um a way that they send it back for fact finding um and whether it's in the official Orit exactly so in the Civil context that is happening now um where um the DC circuit has sent something back for fact finding about whether something is official or unofficial conduct um to the extent that they think it's you know we need to just slam the door shut because if we decide this in May and you add 88 days well maybe judge checkin will shorten that maybe um as I've talked about maybe Jack Smith will go back to her and say 88 days is too long because we're going to slim down our case this a prosecutorial phrase of slim to win um you want to be very targeted and if you one way they could deal with that is say you know what um we need to have the Court decide first whether it's official or not official in other words was it done as part of campaign or not and that issue there's a hearing on it and that can be appealed again uh I concur I told you I told you I'm really not in a good mood jeez it was going so well and then had to bring in a little too much reality but uh just Melissa for the audience it's a very common jurisprudential route for an appeal to work its way up like this get to the Supreme Court they order it back down to the district court or even to the appeals court for we'd like you to consider this uh It's Not Unusual and un unfortunately in this case since it's the first of its kind that most people will be following uh through all of these stages of of federal jurist Prudence it will feel feel like oh some Trump has pulled off another trick of it being sent back uh to the district court so it is very common for the high court to remand things back all the way to the district court we saw it in Trump versus mesar that was the case about the Congressional subpoenas we also saw it in Trump versus Vance um in mesar it was to go back and consider these you know new considerations about how Congress should issue subpoenas and for what materials interestingly um when that got remanded it was sort of in June of 2020 which meant that those Congressional subpoenas never came to light in time to influence the presidential election in 2020 and I think that might have been by Design like the court didn't want to be understood as a factor or a player in that election and so the remand allowed them to do that and a remand here might do the same thing like get the court out of the political Fray um you know is that a trick on Donald Trump's part you know possibly maybe I do think it speaks to the Court's interest in its own legitimacy and being viewed as neutral and apolitical even at a time when I think most Americans would understand the court to be inextricably intertwined with politics and these politics in particular uh Andrew the uh I just want to underline this point about the the delays work uh as a savior for Donald Trump only if he's elected president and only in the federal cases that if he's elected president he will in effect be able to kill the two Federal prosecutions against him uh what would be the he won't be able to do anything to the Georgia prosecution won't be able to do anything to the Manhattan prosecution except uh not he be able to not participate in a trial so you'd end up delaying if the if the Georgia trial hasn't started you have to wait for him to not be president to to go to trial uh talk about what happens I mean I don't by the way I don't think Donald Trump's going to be elected president so I'm not actually I I am I I'm I'm just I am the least I'm the least troubled person by the time the Supreme Court is taking because I believe Donald Trump will be in a federal courtroom as a criminal defendant in January of next year you know they'll be they'll be cutting from the Biden inauguration to the courtroom you know where he's being prosecuted so I I'm very relaxed about the delay I'm the only one uh but but but that's the point of it and but I just want to imagine this fictional scenario that I don't think will occur where Trump's inaugurated what happens in in in the Trump justice department uh who does what to stop where we are in the prosecution and I and it depends on where we are it depends on if we're in the appeals process or earlier so um you might have been writing for the westwing like one episode too many um uh um uh by the way I will say something very very positive which is if there is a judge chuin trial and a conviction and I do not think he will if there is a judge chucken trial there's no way he's getting acquitted in that case and I think he would get the proof seems overwhelming um uh judge chuckin I think is sending him to jail um I think there's um you know there there are lots of people on air who are saying you know because he was the former president or he Secret Service she won't do it I I I having worked in DC having been in that Courthouse I don't think that judges who have seen hundreds of people who are lowlevel people or lower level people go to jail that they're going to think that a rich white leader of that group is not going to go to jail I think like that is going to be the driving impetus that that the sort of aristan most so that's my one positive note for he made a comeback right exactly so I've watched the westwing I can do I can do positive like um so um so if if Trump were to take office all he has to do is um tell uh Jeffrey Clark or Sydney Powell his new attorney general and um Deputy attorney general to that just to go ahead and move to dismiss the federal cases now that does require Court approval we know that from for instance in the Michael Flynn case where the justice department wanted to dismiss those there was a whole conton about um whether the court um H how much power the court had to say no to that um the court has limited Authority but um there would be a lot of dispute over that issue but the justice department under Trump would be saying get rid of the federal cases and that's true regardless of whether the cases have gone to trial whether there's an appeal there certainly there won't be there's no way that all of the appeal process will be done there won't be a quote final conviction before January so there is the ability for that new Justice Department to just say get rid of the cases and then as you pointed out with the state cases um it is extremely likely those will be on hold for four years um he could not part just to be clear he can't pardon his way out of those there's State cases they're independent but they would be on hold um in the same way that there's Cil immunity those cases would because you don't I mean it it seems unfair but you don't as a as a system you don't want 50 states to be able to start charging the president while they're he or she is in office should be so lucky that it's a she um and um that there would be that Hiatus uh so it turns out uh Andrew is not the only worst case scenario person in the room um our first audience question uh if hypothetically the Supreme Court decides that he is immune what effect would that have on the Georgia case Melissa so if he's CRI if he's criminally immune um honestly like wow okay whoa um it just shatters my whole like I got to change the whole course now there's that um it I mean if if those acts are viewed as within the scope of his duties for purposes of the federal election interference case then there would be ramifications for the Georgia election interference case as well and again I had not even contemplated that like to me it seems such an open and shut case that we are a nation of laws and not men but maybe we're becoming a nation of men and not law let me explain so something to you about the 92nd Street y audience they have all lived through some major disappointments in their lives okay especially in 2016 so there's going to be some worst case scenario questions here you got to be ready when you come here for worst case scenario questions Andrew bring it on that was dark that was Grim uh Andrew this is something you've you've thought about uh and thought about on TV with me from time to time uh audience question what are the chances of Judge Cannon being removed and little editorial note below that hopefully [Laughter] soon um so I don't know if anyone listen to my podcast with Mary mcord but the um she's uh as you know I kind of we try and be dispassionate but i' I'm done like I um she was reversed twice by the 11 circuit a conservative circuit um it was an example of judges appointed by Republicans can be really good and follow the law and uh judges appointed by Donald Trump um can also follow the law and be very good that is not how I view judge Canon um and sort of over and over again there there's so many examples big and small as to things that she has said and how she has hand handled herself that go beyond just her inexperience um cuz for a while I was trying to give the benefit of the doubt um where she says things and does things that are just partisan um I think the best two ways that she could uh get reversed or in the classified document so-called sea litigation that goes on um mostly behind the scenes if she is going to be essentially outing those documents uh to the public uh the government is going to appeal that um they they cannot not appeal it they they have an obligation in terms of our national security to do it the same thing there currently is a motion for reconsideration on her outing names and the statements of witnesses and disregarding what is going on um that Alvin brag has just filed the gag order with respect to um again she does not do the right thing they will appeal that because of safety of of witnesses um her most recent ruling though shows that she's very aware of the issue of of appeal and removal so she has a recent decision where it reads like Jack Smith is wrong and it goes on and on about why he is legally wrong and everything he said is wrong and then she rules in his favor um and you're just like what what I mean it's it's it's nonsensical except if you think about it from the perspective of she does not want to give Jack Smith the ability to go to the Circuit so can we talk about Judge Cannon for a minute judge Cannon's part of a broader political landscape that we all need to be very aware of um I grew up in Fort Paris Florida where judge Canon sits um it is a courthouse that currently has three District Court vacancies these are all seats that President by could fill except that for district court that trial court level there is a sort of Senate courtesy where the state senators um Marco Rubio and Rick Scott have to provide their blue slip sort of give their approval to the president's nominees for those spots and they can V essentially gives them a veto over the president's nominees because of that blue slip process neither Rubio nor Scott has okayed any of the people who have been floated to fill any of those three vacancies on the southern district of Florida which means that those seats are going to be vacant and they likely will continue to be vacant into the next election cycle and the next Presidential Administration and when the cases go in the wheel in the southern district of Florida or any other district for that matter you have a chance like base a one in whatever the number of Judges sitting chance there's literally a a roulette wheel that's how you end up with your judge but if you're in the southern district of Florida where there are literally only three judges but three vacancies that means when this case went in the wheel for to get assigned a judge there was a one in three chance it was going to be Eileen Canon and it was and the um the senatorial uh courtesy point is something that in the past others have objected to Al Franken when he was a member of the Senate Judiciary Committee objected to the whole thing just said we shouldn't we shouldn't be doing this uh and and so um going forward in in that case is there I know you've at different times imagined a breaking point for Jack Smith and and and judge Canon is is there one somewhere on the horizon um I as I said I think it will be on National Security and witness protection I mean so far he has played it by the book um he has brought the case where the case arose um there were many people who said you know he could have um sought to bring some of that case in DC um having worked on high-profile matters you don't do that um I mean this case arose um in Fort Pierce that's where it was brought um and so he played that by the book he was not sitting there thinking how do I pick a how do I avoid her or that jury um which is the right thing to do um he has also I think given her the benefit of the doubt um in terms of seeing how she would do um but I think with her with the reconsideration motion I think that is not granted as I said I think if it comes down to um anything involved safety whether it's n or grand safety or witness safety that's not going to be a choice that for the reason that you are a prosecutor that is going to compel you for the same reason that I think the justice department Witnesses of jurors Witnesses jurors and just I mean the information that that if she again plays fast and loose with um the classified documents I mean where she was perfectly happy to have lots of people see it who did not have the authority to see it and that's why one of the reasons that she was reversed that um I think it's going to compel a prosecutor to have to do that and they're going to feel like that as they're doing their Duty in the same way that I think that the reason that you saw a search warrant being executed um without you know my surmise is that the mer Garland and Lisa Monaco um were we were compelled to do it because of our national security and when you see the type of documents that were there they were well within their rights to do that um to make sure uh that information was was um was kept sacran and that's one where having worked in the intelligence Community um you know I know that the January 6 case is obviously the the biggest case that it goes to our democracy um for anybody who's worked in the intelligence Community the idea of putting in Jeopardy that information is something that it's impossible to get my head around um it the kind of information when you see it is so sensitive and it's it's you know and as New Yorkers having lived through a terrorist attack I mean there's so much work going on to make sure that doesn't happen again the idea that you would not understand that is I mean it really takes a really sort of unusual mindset and that's being polite as to how you would not feel that obligation so I I just want to um let you in on how this works here here are all the audience questions in pencil right you saw the pencils for writing the audience questions well okay down at the bottom of the deck I have one that I simply cannot ignore in uh in this very strong blue pen handwriting that I recognize to be Esther Newberg who is the agent representing this book and it says it says please book please remind the audience that signed books are available for purchase in the lobby uh if you know as nberg you know why I was so nervous to get that done right um and uh here's an here's back to an audience question it's something we jumped over which is why didn't the Supreme Court offer to hear the immunity case when Jack Smith initially asked to hear the immunity case and again it is usually rejected when an appeal tries to go directly from the district Court bypass the appeals court go straight to the Supreme Court that's usually a no so we know what the standard practice is and what the standard batting averages we also know this is not a standard case it has a former president of the United States in it um what do you make of that what what do what do you see as the reasoning there so there are certain situations where the court will bypass the intermediate court of appeals um for example in students for fair admissions versus Harvard the the North Carolina challenge that was part of that had actually not been heard by the fourth circuit so while the Harvard case had been heard by the first circuit the North Carolina case had only been heard at the district court but the court decided that they would join both of those appeals together and just bypass the fourth circuit entirely um same thing happened in an earlier case guder versus Ballinger in the sixth circuit so it has happened before um and you would think of a case of this magnitude and where time really was of the essence they would do the same thing especially recognizing that in the end they are the last word on this question like you know it is emphatically the province of the judicial Department to say what the law is and there is a question about the scope of presidential immunity and they would be the last word on it so why so Lawrence is not the last word you were not the last word here um feel free to keep using that phrase though it's it's approaching 10:00 and I'll just be sneaking out the door but it's it's a it's the million dooll question right um it could have been the case that they recognize this would go to the DC circuit and they would write a very thorough opinion although we talked about all of the different permutations that that could take there could be an onbon DC hearing which is all of the judges in the DC circuit even after that three judge panel ruled could want to hear it so even in December there seemed to be an interest in allowing this to play out for as long as possible and now that the DC circuit has issued again a very careful and meticulously crafted decision we have this court saying okay we'll hear it they didn't have to they could just say you know the DC circuit decision stands we like we're not taking this and affirm the DC circuit's decision they took this up and they've set it for oral arguments two months from now again it's inexplicable to me and how does that first conversation go in the judges Chambers the different justices Chambers right because that's where the first conversation is it's it's a Justice and the clerks before before they start talking to each other before the Justice direct how do how does that conversation go there there must have been some uh in December who looked at this and said to to their justices clerks and justices we should take this I imagine there probably three no um I imagine there probably three who would be willing to take it up quickly recognizing the time pressure um they meet every Friday for conference and there are a bunch of different cases that are in the C pool to be discussed and whether or not they're going to Grant CT on these cases and this would be among the ones that they would consider we know at least that you mean the justices meet together on Friday on Fridays for conference um where they Friday they work Fridays they get the whole summer off all right all right okay I would take that deal the whole summer the whole summer off um so so they'll meet and they have this conference where they you know they discuss whether or not they're going to Grant Ser um it takes four to Grant C takes five to Grant a stay in any given case um again the fact of a conservative super majority has really changed the Dynamics of granting C because before when there was just a bare five to four conservative majority you really couldn't be sure where your fifth vote was coming from so you had to be really choosy about when you granted C because because the Chief Justice was kind of a wild card sometimes um Cavanaugh could be a wild card now that you have a six to3 conservative super majority they're just taking more and more things because they don't they know they can lose somebody right they have five Die Hard committed people in the bag and they can lose someone um and and I think in this particular case it is inexplicable to me given the time pressure and knowing that the American public is going to The Ballot Box in November and at least some in this country want an answer on this maybe even a majority of people in this country want a majority want an answer and that they're just you know they're not pressed in any way like not at all exercised to get to a resolution here so one of the things that happened that's that um that's in the weeds here is uh the continued stay the government argued that for there to be this continued stay that the normal there normal things that you have to show uh mainly that you have to show a likelihood of success on the merits um and that there would be five justices who would need to say that um that's otherwise you don't the that doesn't happen um and so this is just to be the ne the sort of B bad news they what you do yeah yeah so they um continued the stay by with they didn't go through the steps of saying here are all the things that you need to do to find that a stay should be done including the most important which is this prognosis as to the ruling to your point of like what can we expect normally you would have to have five Justice saying there's a likelihood of Donald Trump having a success on the merits they left that out um they anal is but they just said in their onepage order to the DC circuit continue your stay um as an order as an order to that court but that's not really a way to sort of finesse having to make that judgment I think if there are five justices who think that I think that was to avoid The Firestorm of a decision on this to hear it where they would have said we're issuing a stay because there are five justices saying there's a likelihood of success on the merits without going through all the reasoning so um it could it could be more benign it could be that they just decided um that they're just going to do it because this court has definitely engaged in might makx right and just ignored the legal standard but that is something in the background that I am concerned about whether that is one of the reasons that the state continued uh Melissa who are you on the court uh who would you say is there a wave saying who is the most effective if there is one possible Bridge or broker between the three appointed by democratic presidents and the super majority I think it's Kagan I mean Kagan to me is the obvious choice there um she has the respect I think of the other side I think the Chief Justice very much admires her um she recently gave him the American law institutes judge Henry friendly medal and you know spoke very warmly of him and he and accepting the medal spoke very warmly of her they seemed to have a good relationship that's kind of been her Meier I think during her time on the court um sort of making inroads I I think she really understands herself as kind of a tactician a strategist um you know reaching AC cross to and find points of agreement to narrow or blunt the real force of the conservative majority and and I don't know that it's always worked I me I think in some of the religious liberty cases um she and Justice Brier kind of got toen by the majority um they they did some appeasement that didn't actually work out um Justice Sodor I think is sort of stalwart in her position as you know the conscience of the Court like she she is not not speaking to her colleagues much of the time she's speaking to us and she wants us to hear what's going on at this court so we can make our own decisions I mean she's actually engaging in jurist Prudence a lot of the time but also a lot of the time in demos Prudence like talking to the people and trying to alert them to how extreme the court is and I think Justice Jackson is in a mode probably between the two of them between Pagan and SOA mayor in that there is definitely a very sort of professorial sort of tenor to the way she writes I think she's very good at drafting opinions that are able to Garner votes from the other side um there's a couple of cases last term where I think she was absolutely pivotal um you know I think her interjection in the Harvard affirmative action case about the hypothetical of two college students or two College applicants one a fifth generation North Carolinian one a fifth generation North Carolinian who's family had experienced slavery and segregation and could the Legacy candidate talk about her family's history in North Carolina yes could the black applicant could she talk about her family's history no because it's too closely associated with race and she's like well that by itself is an equal protection problem and I I think she shifted the tenor of that argument and I think she's also the reason why the Chief Justice left in at the end of that opinion this paragraph about how a candidate could write about race and how it had affected their life personally in a very sort of granular way um so she's sort of in between the two of them but it's sort of brokering with the right I think it's mostly Kagan but what's really notable about this disqualification opinion is that she's kind of all out of patience with them and the even an oral argument she's sharper than she used to be um she's impatient with them in ways that she wasn't before and you know it's it's Wonder It's Kind of Wonderful to listen to because she's clearly just you know she's done with the madness but it also suggests how far gone they are that she doesn't see room for brokering with them I had a question what did you think um I sort of know a little bit we've talked about this um what did you think about the somewhat bizarre Amy Cony Barrett oh concurrence the sort of can't we all get along um concurrence I mean wasn't that real I'm just I'm going to trigger you you are triggering me right now um I mean that was some real school marm energy right I mean so Amy con Barrett wrote this concurrence in which she agreed with the three other women that the Bros had gone too far but rather than chiding the men for going too far and being really extreme and deciding things that they didn't have to decide she got mad at the women for calling it out they were not being very ladylike oh yeah I mean clearly like and and then it was it was real Dolores Umbridge energy it was so really interesting um a lot of tone policing um I don't even know what to say about that I mean I think she's such an interesting character on the court and I would love to know more I mean she's been very tightly veiled like no I don't mean that in like you know sort of like a handmade way um but she she's kept to her herself and and we haven't really seen many flashes of Independence she does do it occasionally like there are these moments where she'll be like these guys are going too far but then she never actually goes far enough to call them out on it she sort of gets in line and it is both interesting and disappointing all at the same time I found that paragraph So peculiar that I read it in its entirety on TV because I've never seen anything quite like it um you know if you're still awake uh we're going to do the really cheap short version of this uh at 10:00 tonight um actually at the we're going to actually do it at the end of the hour because we've got all these Senate candidates coming in uh at the at the beginning uh and I just hope you are feeling what I'm feeling that which is this is the very best discussion of this that I have heard and I am so glad that I could be here today um and of course it's here the book the book is out there it's available uh Melissa Murray Andrew Weissman thank you very much for giving us this and thank you for joining us here tonight thank you thank you all

Channel: The 92nd Street Y, New York

Views: 438,145

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

Id: dKv1Q51ktTM

Length: 66min 24sec (3984 seconds)

Published: Mon Mar 25 2024