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at Hellman's.com. Hi,

0:38

and welcome back to prosecuting Donald Trump.

0:40

It's Tuesday, July 2nd. I'm

0:44

Andrew Weissman, and I'm here with

0:46

my co-host, Mary McCord. Morning, Andrew.

0:48

Seems like I just was on with you.

0:51

Yeah, well, guess what? That's because

0:53

we were. Oh, we were! Okay. This

0:56

is going to be an episode where

0:58

we talk to another NYU colleague, Ryan

1:00

Goodman, and we'll turn to that in

1:03

a moment. I know that you just

1:05

heard from us talking about the immunity

1:07

decision. There were a couple of things

1:09

we wanted to flag before we talk

1:11

with Ryan about the case that came

1:13

out, it feels like a year ago,

1:15

but was just last week, which was

1:17

the Fisher decision. But there are some

1:20

things we wanted to flag in connection

1:22

with the immunity decision. So, Mary, do you want

1:24

to start us off on that? Sure,

1:26

because yesterday, after we recorded, more

1:28

things happened, surprise, surprise. One

1:31

of which is that Donald Trump, through

1:33

his attorneys, sent a letter to Judge

1:36

Marshawn, that is the judge in the

1:38

Manhattan trial for which he was found

1:40

guilty a month ago. I don't know.

1:43

Every time is impossible now. Of

1:45

multiple felonies related to his payment of

1:47

hush money to Stormy Daniels to keep

1:49

her from talking about things that would

1:52

have affected the election back in 2016.

1:55

So as we await his sentencing, which

1:57

is scheduled for next week, July, 20th,

1:59

2020, we'll be July 11th, as soon

2:02

as this immunity decision came out, Mr.

2:04

Trump's attorney sent a letter to Judge

2:06

Marchon asking permission to file a motion

2:08

to set aside the verdict on the

2:10

grounds that he is immune from that

2:12

prosecution. Now again, this was not, we

2:14

have not seen this letter. This was

2:16

reported by the New York Times and

2:19

we have not seen the substantive motion

2:21

yet. Right now he's saying, put off

2:23

my sentencing, let me file a motion

2:25

to set aside these verdicts because I

2:27

can't be prosecuted because I'm immune. Now,

2:29

Andrew, I don't know about you, but

2:31

if my recollection of us covering that

2:33

trial every single day by reading the

2:35

transcripts or you in many cases going

2:38

to it and us discussing it on

2:40

the podcast twice a week, my recollection

2:42

is that the payments to Stormy Daniels

2:44

occurred before Mr. Trump was in the

2:46

White House and it's kind of hard

2:48

to imagine how reimbursement for those payments

2:50

could be official acts. But what do

2:52

you think? Yeah, I think that if

2:55

you're the defense lawyer, you're going to

2:57

make this motion. Of course. You should.

2:59

You know, if there's a 1% chance,

3:02

you make it. There's no

3:04

question that the conducted

3:06

issue is unofficial.

3:08

Yes, there is conduct that occurred

3:11

while Donald Trump was president. There's

3:13

conduct that occurred before he was

3:15

president that forms the basis of

3:18

the scheme that was charged and

3:20

for which he was convicted. But

3:22

there was conduct while he was

3:25

president. For instance, the reimbursements, the

3:27

signing of the checks, many of

3:30

those were signed in the Oval

3:32

Office. But obviously, that reimbursement of

3:34

payments to Stormy Daniels is the

3:37

most quintessential personal material. However, this

3:39

is where the Supreme Court immunity

3:41

decision is particularly egregious

3:44

because there is a five

3:46

to four split, not six

3:48

three, five to four split

3:50

on once something is considered

3:53

an official act, it cannot

3:55

be used according to the

3:57

majority in court. As

4:00

evidence. As evidence. And so

4:03

the argument's going to be

4:05

made that certain tweets, certain

4:07

testimony about things that Donald

4:10

Trump did while he was

4:12

president constitute official acts. And

4:15

so that should be kept out. So

4:17

let's break that down for a second

4:19

though to make sure. So the case

4:21

was about the payment creating false business

4:23

records to cover up these payments. The

4:25

payments, of course, to Stormy Daniels were

4:27

made before Mr. Trump was president. But

4:29

as you just indicated at trial, there

4:31

was also evidence elicited that Mr. Trump

4:34

signed checks reimbursing Michael Cohen, remember falsely

4:36

claiming this was for legal services by

4:38

paying monthly payments over the course of

4:40

basically his first year as president. So

4:42

this means that evidence came in of

4:44

things he did while he was in

4:46

the Oval Office. Doesn't necessarily mean those

4:48

were official acts because just being in

4:50

the Oval Office doesn't make him an

4:52

official act. So there will be an

4:54

argument about that. But then there were

4:56

other things that happened that came into

4:59

evidence while he was president, including,

5:01

as you just indicated, some of his

5:03

social media posts kind of talking about

5:05

this, right? Again, I think most of

5:07

us would be like, you're talking about

5:09

a personal thing, not official act, but

5:11

there's something where an analysis, his attorneys

5:13

will argue has to happen. And then

5:15

there was Hope Hicks, for example, as

5:17

well as Madeline, help me out here,

5:19

Wester. Wester Hout. Yes,

5:22

who worked in the White House, who

5:24

also testified about what they knew of

5:26

this issue that I'm sure his attorneys

5:28

will argue those are official acts. So

5:30

before we get to the point of

5:32

none of that can be admitted into

5:34

evidence, we've got to determine if those

5:36

are even official acts, right? Absolutely.

5:39

As well as so much of that,

5:41

I think, will be viewed as not official. Second,

5:44

even if it's viewed as official, for

5:46

instance, sending out a tweet, they'll say,

5:49

well, that's part of my official acts

5:51

is being precedent is communicating with the

5:53

citizenry that if it's public and in

5:55

the public domain, the idea that you

5:58

can't use it, and that's actually even

6:00

flagged. in a footnote as something that

6:02

should be allowed. By the chief. By

6:05

the chief justice who wrote the majority

6:07

opinion, yes. Because it's like how could

6:09

that possibly in any way affect the

6:12

functioning of the presidency in

6:14

any sort of meaningful way. So again,

6:16

there'll be arguments on this. The third

6:18

issue is that the whole issue of

6:20

immunity, there's a really good argument that

6:22

it was waived that both the trial

6:24

judge, Judge Marchand, but also when Donald

6:26

Trump was trying to remove this case

6:28

to federal court, the federal judge who

6:30

handled the case said that the issue

6:33

was waived. So then finally, by the

6:35

way, even if Donald Trump were to

6:37

win all of this, that it's official,

6:39

it should be kept out, it wasn't

6:41

waived. It also then has to be

6:43

material. Meaning if you keep out something

6:45

that is a grain of sand on

6:47

the beach, the judge can say this

6:50

wouldn't have changed the result in

6:52

any way. You're entitled to a

6:54

constitutionally valid trial. You're not entitled

6:56

to a perfect trial. And sometimes evidence is

6:58

let in that shouldn't have been, but it

7:00

has to be material. Right. That's called harmless

7:02

error, right? Exactly. There can't be something that's

7:05

just so extraneous that you say it has

7:07

an effect on the result and the judge

7:09

can say, no, it's too minor. So there

7:11

are lots and lots of arguments. We're really

7:13

just flagging the issue. Some of the things

7:15

that Mary, you and I are talking about,

7:17

well, wait and see sort of how it

7:20

gets played. I have

7:22

to say I'm not, I don't fault

7:24

the defense for raising it. I mean,

7:26

it was kind of like a gift

7:28

given to them by the majority that

7:30

was shocking given that Chief Justice Roberts

7:32

in the oral argument of the immunity

7:34

case was on the side of Amy

7:36

Coney Barrett that this should be allowed

7:39

into evidence that they sort of quit,

7:41

as we talked about yesterday, that he

7:43

really flipped. And so I understand why

7:45

the defense is making this argument, but

7:47

this is one of the, you know,

7:49

I'd love to say unintended consequences, but

7:51

I think I'm going to say intended

7:53

consequences. Is that you have

7:56

this motion now. Yeah. So the other

7:58

thing that we wanted to flag is

8:00

not something. actually knew that developed after

8:02

our podcast yesterday, but something we just

8:04

didn't get a chance to talk about.

8:06

And that was the Thomas concurrence. So

8:09

Justice Thomas not surprisingly agreed with the

8:11

majority in terms of their substantive ruling

8:13

about immunity. But he wrote separately, and

8:15

it's fairly short, to say essentially that

8:17

he also thinks that Jack Smith was

8:19

not constitutionally appointed. And this is the

8:21

argument that we have talked about recently

8:24

when we've talked about some of the

8:26

motions to dismiss pending before Judge Cannon.

8:28

In fact, the motion that was argued,

8:30

I guess, a week ago Friday, if

8:32

I'm getting my dates right, where

8:35

Mr. Trump and his attorneys had

8:37

argued that Jack Smith was not

8:39

constitutionally appointed under the Appointments Clause.

8:41

And they also made a separate

8:43

argument that he wasn't funded appropriately

8:45

under the Appropriations Clause. Justice Thomas

8:47

here somewhat gratuitously, in my opinion,

8:49

because of course this was not

8:51

at all part of the briefing

8:53

or argument or question presented or

8:55

question accepted by the court, completely

8:58

separate. Yes. Mary, could we take

9:00

out the word somewhat? Yeah. Okay.

9:02

Because yes, because as you can

9:04

tell, I'm being triggered here. I'm

9:06

on Trigger Avenue. Let's write about

9:08

something totally not briefed. Yes. Goes,

9:11

you know, says, look, the Appointments

9:13

Clause says that appointments have to

9:15

be provided for either in the

9:17

Constitution or be established by law.

9:19

Appointments for people with the kind

9:21

of authority that he thinks Jack

9:23

Smith has. He says it's difficult

9:25

to see how the special counsel

9:27

has an office established by law

9:29

as required by the Constitution. And

9:31

if Congress has not reached a

9:33

consensus that a particular office should

9:35

exist, the executive lacks the power

9:37

to unilaterally create and then fill

9:39

that office. Given that the special

9:41

counsel purports to wield the executive

9:43

branch's power to prosecute, the consequences

9:45

are weighty. So he weighs in

9:47

on something completely different to say

9:49

Jack Smith's appointment is unconstitutional. And

9:51

in my opinion, this is almost

9:53

like trying to lay a roadmap

9:55

for Judge Cannon, who still has

9:57

this motion pending before her. I

10:00

kind of hate saying that actually, but I don't,

10:02

I doubt she's listening to our podcast. Yeah,

10:04

so notably what he's

10:06

put out there and in this

10:09

gratuitous fashion, and by the way,

10:11

you're really supposed to address issues

10:13

that are presented, not these other

10:15

issues that are not brief. That's

10:17

just a straightforward proposition that all

10:19

courts are supposed to follow. But

10:21

what he's saying would actually apply

10:23

to other special counsels. So right

10:25

now, David Weiss is a special

10:28

counsel who is prosecuting Hunter Biden.

10:30

I didn't see that. No, I didn't see that in

10:32

here. Can you tell me, did you see Justice

10:34

Thomas talk about how David Weiss should be

10:36

appointed? No, I'm looking, I'm scanning, I'm

10:38

skimming and scanning. I'm not seeing it.

10:41

Yeah, not seeing any reference to that. Yeah, what

10:43

about Rob Herr? Did you see a reference to

10:45

Rob Herr? Not seeing that. Yeah, so, yeah. And

10:48

I should say, I mean, just

10:50

to correct myself, he doesn't say

10:52

is unconstitutional. He says, there are

10:55

serious questions whether the Attorney General

10:57

has violated the constitutional structure by

10:59

creating this office. So I'm sure that's

11:01

the wiggle room he's leaving for some

11:03

of those other special counsels. Yeah, that's

11:05

great. Mary, let's preview what

11:07

we're about to have Ryan Goodman come on

11:09

to talk to us about the Fisher case.

11:11

That happened a year ago, which means Friday.

11:14

Friday. So just can you remind us what

11:16

the Fisher case is, and then we'll get

11:18

more into a deep dive with Ryan? Sure,

11:20

Fisher is one of the thousands

11:23

of folks who attacked the US

11:25

Capitol on January 6th, more than

11:27

1,400 of whom have been prosecuted.

11:29

Alleged. Alleged. Alleged. Because he hasn't gone to trial

11:31

yet. That's right, he has not. He

11:33

was charged with obstruction of an

11:36

official proceeding, as well as many

11:38

other offenses, including assaulting law enforcement

11:40

officers. He's not yet been

11:42

to trial. He challenged the government's

11:44

use of that obstruction charged

11:46

against him. That is the issue that

11:48

went up to the Supreme Court. That is

11:51

the issue that the Supreme Court decided on

11:53

Friday. It obviously has implications for other cases

11:55

of the rioters and how they've been charged.

11:57

It has implications, although I think almost no.

12:00

none for Mr. Trump, and we're going to

12:02

dive into all of that after the break.

12:11

MSNBC's Lawrence O'Donnell. When I was

12:13

working in the Senate, I didn't

12:15

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complexity of it all. Mastering the

12:24

detail is crucial to being able

12:27

to present anything that happens

12:29

in Senate buildings or any of the

12:31

other news centers that we have to

12:33

focus on every day. The Last Word

12:35

with Lawrence O'Donnell, weeknights at 10 p.m.

12:38

Eastern on MSNBC. A

12:41

U.S. Senator destroyed by blackmail. He

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was not bound by the truth

12:47

or by facts. The country's most

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outrageous political demagogue ascending toward the

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peak of American power. Millions upon

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millions of devoted followers. This

12:56

is a story of heroes willing to

12:58

face down tyranny and the risk to

13:00

the country if they fail. Rachel

13:02

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13:05

of the chart topping original

13:07

podcast. Listen now on Spotify.

13:15

Welcome back. As promised, we are

13:18

very pleased to have join us today,

13:20

Ryan Goodman. Ryan is the founding co-editor

13:22

in chief of Just Security. He is

13:24

a law professor and co-director of the

13:26

Reiss Center on Law and Security at

13:29

New York University School of Law. You'll

13:31

see a theme here two days in

13:33

a row, two NYU professors joining us.

13:35

And he served as special counsel to

13:37

the general counsel of the Department of Defense from

13:39

2015 to 2016. So

13:42

good to have you here with us this

13:45

morning, Ryan. Thanks so much for the invitation

13:47

to be here with you guys. So Ryan

13:49

and I teach National Security Law at NYU.

13:51

And Ryan, I thought maybe- And I've actually

13:53

guest-taught with you. So there you go. Every

13:55

year. We just get the band back together. And

13:57

I think I've told this story, but it hasn't

13:59

been. told in a long time and since

14:01

we're at the point where I only have

14:03

so many anecdotes even at my age. But

14:05

when Mary teaches, my favorite student reaction was

14:07

the week after Mary came and taught, a

14:09

student came up to me and said, you

14:11

know, I figured out what I want to

14:13

do with the rest of my life. And

14:15

I was like, okay, that's pretty impressive. I

14:17

mean, you know, this is a law student,

14:19

so they're really just beginning in their career.

14:21

And I said, so what? What are you

14:23

thinking of? And she said, I decided I

14:25

want to be Mary McCord. No, she doesn't.

14:32

Very flattering, but no. So

14:36

Ryan, I thought maybe the first

14:38

thing is one of the things

14:41

that Mary said when she was

14:43

introducing you was to talk about

14:45

your being the co-editor in chief

14:47

at something called Just Security. And

14:50

we're going to be talking about a piece

14:52

that you were the primary author that

14:54

I will say Mary and I... Just kind

14:56

of hung on. Yeah, right. Timbets done. And

14:58

yeah, we flagged minor issues, but it was

15:01

your brainchild. But before we do that,

15:03

do you want to just talk about what

15:05

exactly is Just Security? And even though Will

15:07

and the show notes have a link

15:09

to the particular article that we're going to

15:12

talk about, there's so much more on Just

15:14

Security. So I thought maybe we'd first

15:16

just talk about, look, what is it? Thanks

15:19

so much. And also thank you for

15:21

being equal partners on our joint project.

15:23

So Just Security is an online forum,

15:25

like a publication or magazine that one

15:27

might think of that's just purely online

15:29

based here at NYU School of Law.

15:31

And it primarily brings top level legal

15:33

experts, but also policy experts, to address

15:35

issues at the intersection of security, rights,

15:37

democracy, rule of law. And I think

15:39

one of the things that we do,

15:42

we do multiple things, but one of

15:44

the things that we do quite well

15:46

is by having those experts weigh in

15:48

on tippy top pressing

15:50

issues and to be able to do it

15:52

at a rapid reaction. And then otherwise, deep

15:54

dives in highly researched pieces like the

15:57

one we'll be discussing today that is able

15:59

to data in the

16:01

ways that scholars and experts generally

16:03

do. So the other thing I

16:05

note that you do, Ryan, is

16:07

that Just Security has a podcast.

16:09

So we'll plug that on our

16:12

podcast. It's really terrific, and it's

16:14

a very good companion piece to

16:16

the articles that you put

16:18

out, and it's just a different forum

16:20

and format to be able to access

16:22

them. So, Ryan, tell us what you

16:24

were thinking of when you had the

16:27

idea of doing this piece,

16:29

because a lot of the work was while

16:31

the Fisher case was pending, sort of how

16:33

you saw the piece, how

16:35

it related to the Fisher arguments

16:37

and what you were trying to

16:39

accomplish. Sure. So tracking very closely

16:41

all of the Department of Justice's

16:43

January 6 cases, of which there

16:46

were over 1,400 individuals

16:48

charged, the one issue that came all

16:50

the way to the Supreme Court is

16:53

this issue of whether or not individuals

16:55

could be charged in a particular obstruction

16:57

statute. And a lot seemed to hang

16:59

in the balance, because at one point

17:01

it even seemed to be the modal

17:03

category, the number one charge that was

17:05

being brought that individuals had engaged in

17:07

obstructing the congressional proceedings. So it seems

17:10

very high stakes. And that

17:12

was the general understanding, I think, of most

17:14

experts, myself included, I should even put it

17:16

that way, when this came to the Supreme

17:18

Court. So if the Supreme Court invalidated the

17:21

Justice Department's use of the statute and the

17:23

ways in which they had employed it in

17:25

these cases, it looked like a large portion

17:27

of all of the Justice Department's work could

17:30

go away. And the question in my mind

17:32

was, what would the reaction to that be?

17:34

Because you could see the train coming. That

17:37

seemed to be the direction the Supreme Court

17:39

was going to take. And what would be

17:41

the reaction? How might that feed into a

17:43

lot of disinformation? And what could we anticipate

17:46

ahead of time to preempt and ward off

17:48

that disinformation, like the way in which you

17:50

could easily imagine something like that coming out

17:52

of the Supreme Court could be deployed in

17:55

a disinformation environment to make big arguments about,

17:57

oh, see that? There's the weaponization of the

17:59

Department. of Justice. See that? It's all over

18:02

criminalization of politics. They've used a statute that's

18:04

completely invalid. It's overreach. And so it was

18:06

based on that that I thought, let's do

18:08

a deep dive into the project to see

18:11

really how the department has used the statute.

18:13

How many cases does this really affect and

18:15

the like? Danielle Pletka So before we get

18:17

into that analysis, let's make sure all listeners

18:20

are understanding what statute we're talking about. This

18:22

is a statute that is the actual citation

18:24

to it is 18 United

18:26

States Code Section 1512C,

18:29

and it has two parts,

18:31

a Part 1, C1, and

18:33

a Part 2, C2. Under

18:35

C1, it is unlawful to

18:37

alter, destroy, mutilate, or conceal

18:39

a record, document, or other

18:41

object with the intent to

18:44

impair the object's integrity or

18:46

availability for use in an

18:48

official proceeding. That is not

18:50

the statute that the Department

18:52

of Justice charged in most

18:54

of these cases against those

18:56

who attacked the Capitol on

18:58

January 6th. C2, however, prohibits

19:00

otherwise, and that is a

19:02

quote, otherwise obstructing, influencing, or

19:04

impeding an official proceeding. So

19:06

the government's theory was that

19:08

by violently attacking the Capitol

19:10

and prohibiting Congress through that

19:12

attack from engaging in the

19:14

joint session on January 6th,

19:17

as required by law to

19:19

count the electoral college votes,

19:21

those attackers were otherwise obstructing,

19:23

influencing, or impeding an official

19:25

proceeding. So that's the issue

19:27

that went to the Supreme

19:29

Court. 14 out

19:31

of 15 district court judges appointed

19:33

by presidents, both Republican and Democratic,

19:35

had said, yes, that otherwise

19:38

clause C2 applies to this type

19:40

of conduct. One judge had said,

19:42

no, I feel like because of

19:44

C1, it needs to have something

19:46

to do with impairing the integrity

19:48

or availability of some sort of

19:50

evidence. That's the issue. And I

19:52

should also say in the DC

19:54

circuit, the DC circuit panel, a

19:56

three judge panel agreed with the

19:58

14 judges. and not

20:00

with the one that this statute could

20:02

apply to the conduct of the rioters

20:05

with one dissenter. That's the issue went

20:07

to the Supreme Court. The Supreme Court

20:09

ended up ruling in a six to

20:11

three decision, but the six to three

20:14

is not the ideological split we've become

20:16

accustomed to, and we can talk about

20:18

that. The C-2 is informed by C-1,

20:20

so it's not otherwise meaning in every

20:22

other means possible, but that it has

20:25

to be tethered to C-1. However, it

20:28

gave an expansive to our minds, I think,

20:30

Ryan and Andrew, an expansive reading of C-2

20:33

saying that it encompasses more than

20:35

obviously just altering a document record

20:37

or other object, because that's in

20:40

C-1, but it encompasses creating false

20:42

evidence as well as impairing the

20:44

availability or integrity of other things

20:47

used in an official proceeding. And

20:49

this is important beyond records documents

20:51

or other objects, including witness testimony

20:54

or intangible information. So that's where

20:56

we are on the law. So

20:58

what's really interesting about that is

21:01

it was quite expansive in terms

21:03

of, well, it does tether it

21:05

C-2 to C-1. It basically says

21:08

anything having to do with evidence,

21:11

and evidence can be tangible. It

21:13

can be intangible. It can be

21:15

documents. It can be witnesses. It

21:17

can be information. Exactly. Now, what

21:20

it doesn't include is if you

21:22

are just attacking the Capitol to

21:24

obstruct the proceeding, but you're not

21:26

in any way, there's no intent

21:28

to affect information going to the

21:31

proceeding. You're not trying to destroy

21:33

documents, alter the testimony of somebody,

21:35

keep information from somebody, that's not

21:37

part of your intent or even

21:39

affect. That would be carved out.

21:42

But there is this ability within

21:44

a fairly, I thought, expansive view.

21:46

In other words, it could have

21:48

been worse, is what I would

21:51

say. Exactly. I just wanted

21:53

to say about the 14-1, which I'm going

21:55

to ask Ryan about that. But the interesting

21:57

thing about the 14-1 at the district court

21:59

level... with 14 judges saying

22:01

that the government was right, and

22:03

one judge saying, now I think

22:05

C2 should be cabined more closely

22:08

to C1, is

22:10

that three of the 14 judges were

22:12

nominated by Donald Trump. So, especially since

22:14

we've talked so much about Judge Cannon

22:16

and, you know, cool appoints who, this

22:19

is a case where, as you said,

22:21

Mary, it's not just Republican and Democratic,

22:23

but even judges who are appointed by

22:25

Donald Trump looked at this and said,

22:28

this is a permissible use. And I

22:30

think that just goes a long way,

22:32

that hard data goes a long way

22:34

to dispel this idea that this is

22:36

the Department of Justice doing something novel

22:39

that was politically motivated and outside the

22:41

box, because you really don't have that

22:43

just in terms of how the district

22:45

courts ruled on this. Right. And just

22:48

to add in a couple other data

22:50

points on that, in addition to the

22:52

three Trump-appointed judges at the district level,

22:54

there's also Reagan and George W. Bush

22:56

appointees in the 14. And

22:59

something that I have not seen remarked

23:01

on publicly, when we're talking about the

23:03

question of was this a political use

23:05

of the statute, what people miss is

23:08

it is not the Biden Justice Department

23:10

that is first to use the statute

23:12

in this way, it is the Trump

23:14

Justice Department before January 20th, 2021. The

23:18

first charges that they bring include

23:20

the very statute used for these

23:22

kinds of conduct. So it's actually,

23:24

it crosses over both administrations as

23:26

well. And that's right, because people

23:28

I think sometimes forget, right? January

23:30

6th obviously happened two weeks, almost

23:32

two weeks before the inauguration

23:34

and then transition. And there were multiple

23:36

cases brought quickly in those couple of

23:39

weeks. Yeah, that's what happens when you

23:41

commit crimes in front of law enforcement,

23:43

you would think. That's right. So Ryan,

23:45

turning back to the project in terms

23:47

of you were saying that you wanted

23:49

to sort of do this deep dive

23:51

to sort of test out what would

23:54

the effects be. So tell us what

23:56

you did and what your statistics found

23:58

and sort of how you to use

24:00

the. crazy word, bucketized the

24:03

groups. Yeah, so NPR has

24:05

a database of all of the January

24:07

6 defendants, and they track it very

24:09

closely. They update it every week. So

24:12

that includes what are individuals charged for?

24:14

What have they been convicted of? Did

24:16

they plead guilty? Did they plead guilty

24:18

to which charges? Da, da, da, da,

24:20

da. So we were already in conversation

24:24

with NPR about their database, which we're using

24:26

for another big project. And

24:28

along came the Supreme Court oral argument,

24:30

and then the decision was about to

24:32

be handed down. And we went

24:35

into the NPR database, thanks to

24:37

their extraordinarily diligent work, to collect

24:39

all of the cases that have

24:42

been used for this charge. And

24:44

it started to produce a very

24:46

dramatic effect. So basically, the idea

24:49

is that the invalidation

24:51

of this particular use of the

24:54

statute for capital rioters does not affect

24:56

that many cases. It's actually very small.

24:58

The way that the mainstream media had

25:00

been covering it before the Supreme Court's

25:02

opinion is to say, there are

25:04

a huge number of cases. Basically, 350 people

25:07

have been charged with this crime. So that's

25:09

about a quarter of these people. OK.

25:12

So that's a quarter. That's a

25:14

sizable number of the January 6

25:16

defendants. Well, what that misses is,

25:18

for example, individuals that are not

25:20

affected whatsoever by the Supreme Court

25:22

opinion, a good quarter of that

25:24

quarter are individuals who, yes, they

25:26

were charged for this obstruction statute,

25:29

1512C2, but they pled to other crimes

25:31

and not to the 1512C2. So

25:35

their sentences, their pleadings, everything remains completely

25:37

intact. That's one part of it. That

25:39

already whittles it down quite a lot.

25:41

The other part is, yeah. And we should also

25:43

remind people, I mean, we said a quarter, but let's just

25:45

put the big number out there, right? More than 1,400 people

25:48

have been charged. So when we're at 350 a

25:50

quarter, I'm like, that's already a huge number

25:52

of people who were never even charged. Now

25:55

you're saying about a quarter of that quarter

25:57

pled guilty to something else has been sentenced,

25:59

no impact. Three-quarters of whom, this

26:01

is just entirely irrelevant because there's not

26:03

a 1512 C2 charge. Then

26:06

of the 340 or so, a quarter of that, they

26:12

pled to something completely unrelated. Correct.

26:14

So they're completely unaffected. And then

26:16

the next question is, how

26:19

many people are still materially unaffected?

26:21

So there's a majority of all

26:23

of the individuals charged with this

26:25

crime, if they were convicted, either

26:27

based on a plea deal or

26:29

by trial. Supermajority of them were

26:31

convicted for other felonies as well.

26:33

So there's other felonies stay. And

26:35

then thanks to y'all's analysis from

26:37

the vast experience that the two

26:40

of you have, we also then

26:42

analyzed the database to show and to

26:44

make the point that in the recharging

26:46

of these individuals, so it might now

26:48

go back for recharging, the judges can

26:50

still use the underlying bad conduct, even

26:52

though it's no longer charged because that

26:55

would still be a legitimate part of

26:57

the sentencing guidelines. For then the judges

26:59

to determine what the sentence should be.

27:01

So other ways in which it still

27:03

remains highly relevant, the conduct

27:05

of entering the capital to interrupt the

27:08

certification of the election by Congress. And

27:10

could I just interject there? Because one of the

27:12

things that people, a lot of people talk about

27:15

is, oh, this offense carries a 20-year penalty. So

27:17

even if you're convicted of other felonies, this was

27:19

the big one with 20 years. For

27:21

the most part, people have not been getting sentenced

27:24

to things like 20 years. I

27:26

mean, most of the double-digit sentences have

27:28

involved people like the Oath Keepers and

27:30

Proud Boys who were convicted of seditious

27:32

conspiracy, which also carries a 20-year sentence.

27:34

And a few others who had very

27:36

violent assaults on police officers, for

27:38

example, got double-digit sentences. But to

27:40

this point about those who may

27:42

need to be re-sentenced and

27:44

the judges can still take into consideration

27:46

the conduct underlying the obstruction of offense,

27:48

in many cases, their sentences, I suspect,

27:50

will end up being the same as

27:52

what they were because they weren't getting

27:54

20 years. They were getting something less

27:57

than that. And something well within the

27:59

maximum. for the felonies for

28:01

which they were convicted. Yeah, one

28:04

sort of pointer for our listeners

28:06

is it's so annoying, I

28:08

think, for prosecutors and defense lawyers

28:11

when the media and others just

28:13

immediately jump to the maximum

28:16

sentence. And a lot of times when

28:18

you hear about somebody's been charged with

28:20

something, the media says, and they could face

28:22

120 years in jail

28:24

because there's six charges and each of

28:27

them carries a 20-year maximum. And

28:29

Mary and I both go, are you

28:31

freaking kidding me? I mean, that's absurd because

28:34

there are guidelines and no judge is thinking

28:36

120 years. Just because

28:38

there's a maximum, you could cover that

28:40

just as much if you wanted to

28:42

cover the minimum. And so it's just

28:44

not in any way predictive of

28:46

what the person is likely to get.

28:48

And just the other point, just to

28:50

underscore something you said, Mary, which is

28:53

the people who've gotten high sentences have

28:55

been charged with things like

28:57

seditious conspiracy or assaulting an

28:59

actual police officer. So the

29:01

1512C2 is not the charge

29:03

that's doing the work in

29:06

terms of the sentencing. But Ryan, I think

29:08

you look like there's something you wanted to say

29:10

and then we thought we'd take a quick

29:12

break and we have a lot more questions

29:14

to ask you about the piece. Sure.

29:17

Just to piggyback on something that you

29:19

just said, Andrew, which is just take

29:21

Joseph Fisher himself, the lead plaintiff in

29:24

the case. So he

29:26

has not yet gone to trial. This

29:28

was a pretrial motion. It is possible

29:30

that the obstruction statute now cannot be

29:32

charged against him. We can discuss with

29:34

an under-anxious still. We'll come back to that, yes. Yes. But

29:37

he, like the other two defendants that were

29:39

consolidated in this case, all three of them

29:42

have other felonies. Those felonies include assaulting law

29:44

enforcement officers. So their fate as to whether

29:46

or not they're going to serve time in

29:48

jail may be unaffected by the Supreme Court

29:50

ruling, even though the Supreme Court ruling is

29:53

in their favor. So why don't we take

29:55

a quick break and then let's come back

29:57

to this issue of whether Mr.

30:00

Fisher could still be charged

30:02

with the obstruction

30:05

charge, the C2 charge. Because

30:08

I think it also allows us to

30:10

talk a little bit about the split

30:12

in the Supreme Court and Katonji Brown

30:14

Jackson and where she ended up and…

30:16

And Amy Coney Barrett and where she

30:18

ended up. Exactly, because she is such

30:20

an interesting character. But this is the

30:22

tease. Yes, we're going over the cliff.

30:24

Okay, let's leave it hanging on the

30:26

cliff. Okay. Hellman's

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at Hellman's.com. MSNBC's Lawrence

31:03

O'Donnell. When I was working in the

31:05

Senate, I didn't realize that it's the

31:07

perfect training for the job that I

31:09

have now. Covering government,

31:11

covering politics, the complexity

31:14

of it all. Mastering the detail

31:16

is crucial to being able

31:18

to present anything that happens

31:20

in Senate buildings or any

31:22

of the other news centers that we

31:25

have to focus on every day. The

31:27

Last Word with Lawrence O'Donnell. Weeknights at

31:29

10 p.m. Eastern on MSNBC. Welcome

31:38

back, Ryan. Why don't we talk about

31:40

under what circumstances do you think that

31:43

Mr. Fisher could still

31:45

be charged with an obstruction

31:47

charge under C2? That'll

31:50

take us into some of the opinions. So

31:53

the road map is laid out

31:55

by Kentonji Brown Jackson's concurring opinion,

31:57

and the justice at the very

32:00

end of her opinion, the very final passage,

32:02

basically says there's still a

32:04

path here for the Justice Department

32:07

to charge Mr. Fisher under

32:09

the very same statute. You just have to

32:11

apply the framework. And then the

32:13

question is, as Mary had

32:15

said out at the beginning, under the

32:17

new test, did Mr. Fisher act with

32:19

the intent to impair, let's

32:22

say, the availability of records,

32:24

their proper certificates, or trying

32:26

to facilitate the false certificates,

32:28

and in this instance, I think, would be

32:30

interrupting the electoral certificates from being used in

32:34

the congressional proceedings. They very well might have the

32:36

case against him, and that would be the charge.

32:39

And just to add a little bit

32:41

more to that, the reporting in the

32:43

24 hours since the Supreme Court opinion

32:45

by CNN, New York Times, and others

32:47

indicates that the Justice Department is poised

32:49

to make these kinds of moves, not

32:51

necessarily Mr. Fisher's case, that they might

32:53

have that as well. But CNN, for

32:55

example, said that in multiple cases the

32:57

Justice Department has provided evidence

33:00

to the jury that shows

33:02

the ways in which the clerks

33:04

of Congress had to run with the

33:06

certificates out of the building because of

33:08

the incoming writers. That provides you the

33:11

kind of theory of the

33:13

case that would fit the legal framework

33:15

that the court just articulated. And

33:18

certificates, just to be sure everyone's tracking, you

33:20

know, this was the day that Congress, the

33:22

joint extension, was going to literally count the

33:24

electoral ballots, and those are transmitted by the

33:26

states with all of the electors in each

33:29

state signing and a certification that these are

33:31

valid. Now, of course, we know there were

33:33

also, you know, several states that sent up

33:35

false certificates. That's not the point of this

33:37

particular charge here. That has been the point

33:40

of separate charges and separate

33:42

cases. But those certificates is

33:44

something that was a document that needed to

33:46

be counted, opened by, I should say, envelopes

33:48

opened by the vice president and counted on

33:51

that day. And those were very much impaired

33:53

by the riot. The other thing that I

33:55

think is significant, you said concurrence, but just

33:57

to be sure everyone's clear. Alexis

34:00

Jackson's concurrence was written separately because

34:02

she agreed with the conclusion of

34:04

the majority, again, a 6-3. She

34:08

was one of the six who said

34:10

that C2 does have to be tethered

34:12

to C1, and it has to involve

34:14

impairment of integrity or availability of something

34:17

to be used in an official proceeding.

34:19

So she wrote separately. It's not like

34:21

a dissent writing separately, and people can

34:23

sort of write that off as, oh,

34:25

well, that's a dissent. This was a

34:28

concurrence, and this is saying here is

34:30

how I, who agree with the majority,

34:32

see this playing out. And she says

34:34

quite clearly, and these are her words,

34:36

it might well be that Fisher's conduct

34:39

as alleged here involved the impairment or

34:41

the attempted impairment of the availability or

34:43

integrity of things used during the January

34:45

6 proceeding in ways other than those

34:47

specified in C1. And

34:50

if so, his prosecution can

34:52

and should proceed. This remains available for

34:55

the lower courts to determine on remand.

34:57

So I think that's really important. Can

34:59

I just say why there's sort of

35:01

an elephant in the room here? Because

35:05

I think what she, although she

35:07

addresses the Fisher case, and this

35:09

is very factual, both

35:11

what she's saying and our earlier

35:14

discussion about the broad definition of

35:16

evidence that the court in the

35:18

majority gives to C2, the looming

35:20

issue is Donald Trump and his

35:23

case. And

35:28

maybe again, I'll pose this to Ryan. How

35:31

do you think this

35:33

decision affects the C2

35:35

charge and the conspiracy

35:38

C2 charge? Because these are charges

35:40

that Donald Trump faces. We'll leave

35:42

aside the immunity decision, which we

35:45

talked about yesterday with our colleague

35:47

Trevor Morrison, but how do you

35:49

think this decision affects the

35:52

Trump case? Is it go forward on

35:54

the sort of the Katanji Brown Jackson

35:56

theory, or is there some nuance that

35:59

we're missing? So I think that the

36:01

the Jack Smith case throws forward without

36:03

any real risk from Fisher. And

36:06

that's because the theory of the

36:08

case for Donald Trump is the

36:10

false slate of electors that he

36:12

helped orchestrate across the seven

36:14

different states, false documents

36:16

or forgeries, as it has

36:18

been charged in some of those states, to

36:20

be submitted to Congress. And

36:23

that is fully consistent with the

36:25

majority opinion, as well as Justice

36:28

Jackson's opinion. The majority, I

36:30

think, almost goes out of its

36:32

way to give as an example,

36:34

quote unquote, false evidence. Creating. Yes,

36:36

that's a good point. Creating false

36:38

evidence that fits nearly

36:41

like a hand in glove with the

36:43

false certifications. And that's obviously a record

36:45

or a document. It's such an easy

36:48

application of the majority opinion, almost of

36:50

C1, except it goes beyond

36:52

it to include falsified documents. And so I

36:54

don't think Jack Smith should lose any sleep

36:57

over it. I believe it weren't for the

36:59

immunity opinion, but that's another story. Yes.

37:02

Yeah, and but would not lose

37:04

any sleep over Fisher. Though that

37:06

said, it'll introduce motions. It would

37:08

be incumbent upon Trump's attorneys to

37:11

make the argument in the immunity

37:13

opinion. They drop an early footnote

37:15

that basically invites it as well

37:17

as a possibility. But I can't

37:19

imagine as long as every one

37:22

of the judges sticks to the majority opinion, let's

37:24

say, that it would trouble the theory of the

37:26

case of the charges against Trump,

37:28

or I should say, and others. So

37:30

if any others were ever tried at

37:32

the federal level, including the co-conspirators, the

37:35

unindicted co-conspirators, and the federal indictment, they

37:37

too, for the involvement in the false electors

37:40

scheme, I think it would clearly apply to

37:42

them. Mary, you mentioned that while this opinion

37:44

is 6-3, at the outset, you

37:47

noted that it is not the 6 and

37:50

the 3 that one would expect. Because

37:52

Katanju Brown Jackson, who's usually viewed as

37:54

a, quote, unquote, liberal justice,

37:56

joins the majority. She does write,

37:58

as you said, seven. separately, but

38:01

the dissent, which is

38:03

three justices, the dissent

38:05

is written by Amy Coney Barrett. It's

38:07

not that she doesn't just join it,

38:10

she actually writes it. And

38:12

the one thing I will say,

38:14

I think I've said this before,

38:16

is I find her in this

38:18

term, you may disagree with her

38:20

on lots of things, but she

38:22

comes off as thoughtful and honest

38:24

and also a beautiful writer. I

38:27

think I may have mentioned this just

38:29

on yesterday's episode. And you know what,

38:31

I still have the same view, which

38:33

is surprising that it's 24 hours later

38:36

and I haven't changed my mind. But

38:38

I wanted to get your take on

38:40

sort of what she said, what her

38:42

criticism of the majority is, and what

38:44

you sort of made of the fact

38:46

that she was in dissent here. Well,

38:48

she is very pointed in her dissent.

38:50

She says that, you know, the majority

38:53

doesn't dispute that the joint session qualifies

38:55

as an official proceeding, that rioters delayed

38:57

that proceeding, or even that Fisher's alleged

38:59

conduct was part of a successful effort

39:01

to forcibly halt the certification of the

39:03

election results. And she says, given all

39:05

of that, the case that he can

39:07

be tried for obstructing an official proceeding,

39:10

and this is a quote, seems open

39:12

and shut. So why

39:14

does the court hold otherwise? She

39:16

then says the court abandoning its

39:18

normal approach to statutory interpretation does

39:21

textual backflips, those are her words,

39:23

to find some way, any way

39:25

to narrow the reach of subsection

39:27

C2 and she descends. And then

39:30

she basically says, look, the government's

39:32

interpretation is very straightforward. Otherwise means

39:34

otherwise. The plain language means in

39:37

a way other than the way

39:39

in C1, and that way should

39:41

not be limited by C1. Now,

39:43

the majority had used these statutory

39:46

interpretation canons that I would

39:48

say don't really apply here because the language

39:50

is clear, which is when you have a

39:52

list of things, and there's an otherwise clause

39:54

at the end, sometimes that otherwise clause means

39:56

well, it does have to be tethered to

39:58

that list of things. Usually in

40:00

those cases, the list is one

40:02

list. So let's say C1 itself

40:04

said altering, mutilating, etc. A document

40:07

or otherwise. In one clause, I

40:09

would agree maybe with the majority,

40:11

but it didn't. It has two

40:13

separate sections, C1 and C2. She

40:16

has great examples of that. She really

40:18

takes them to task and goes through

40:20

all of the textual analysis to point

40:23

out why it just does not hold.

40:25

Yeah. So I think it's important reading

40:27

because, again, we're starting

40:29

to get a feel for Justice Amy

40:31

Coney Barrett, just like we did in

40:33

yesterday's immunity decision where I thought, that

40:36

was a partial concurrence and a partial dissent.

40:39

She dissented on some very important points.

40:41

Even on the part with which she

40:43

concurred, she would have gone farther. She

40:46

made it clear she would have then

40:48

applied what the majority was coming up

40:50

with as its test about deciding what's

40:52

official and what is unofficial. She made

40:54

it very clear that the false-electro scheme

40:56

in her mind is clearly on the

40:58

unofficial side of the line. Exactly. Right.

41:01

So like you said, Andrew,

41:03

I think I'm really impressed with some

41:05

of the things she's doing, even when

41:07

I substantively might disagree because I think

41:10

she's clear about how she approaches from

41:12

a legal perspective issues and providing more

41:15

guidance frankly than the majority. But

41:17

anyway, I've digressed to immunity at this point.

41:19

Ryan, yeah, what do you think? Just want

41:21

to jump in with further laudatory

41:24

words about Amy Coney Barrett's work in

41:26

these cases. In the oral

41:28

arguments, I thought she played one of

41:30

those pivotal roles. So in the immunity

41:32

case, she is the one who gets

41:35

Trump's attorney to essentially concede that a

41:37

list of allegations, including the false-electro scheme,

41:39

is on the private side of the

41:41

line, not on the official conduct side

41:43

of the line. It's even a notable

41:45

moment in the oral argument where I

41:47

thought I detected Elena Kagan is asking

41:49

the next question and is even taken

41:51

by a surprise that Amy Coney Barrett

41:54

had asked Elena's question so that it's

41:56

a powerful pivotal moment for how everybody

41:58

even thinks of the case. case. Then

42:00

in the Fisher case, she's the one

42:02

that takes the lead in the oral

42:04

argument about asking the question as

42:06

to whether or not the statute would

42:08

apply to conduct that is acting upon

42:10

the certificates themselves. So it's not just

42:12

in the writing of these opinions, but

42:15

also I think as an act of

42:17

justice in the oral arguments, she's become

42:19

something quite impressive. Agree. Yeah. So I

42:21

mean, it is something worth

42:23

keeping an eye on. I think it's too

42:25

soon to say that she's going to be

42:27

the new justice suitor, but

42:29

you do get the sense that she

42:32

is... And again, I won't go to

42:34

say that's definitive, but you get the

42:36

sense that she is honestly wrestling with

42:38

issues. You may disagree

42:40

with where she comes out, but

42:43

when you compare her to what

42:45

I think is just thoroughly disingenuous

42:48

outcome-driven justices on the

42:50

Supreme Court, she is not exhibiting any

42:52

of that behavior. So bottom line

42:55

is Fisher, not so much

42:57

impact, very little impact. One

42:59

of the things we didn't mention that is part of

43:02

the article, Ryan, that I thought was so great

43:04

that you dug up is that

43:06

even in cases where defendants

43:08

in the January 6th attack had pleaded

43:10

guilty solely to a 1512 C-2 offense,

43:14

the government had included a clause in

43:16

that plea agreement that said, essentially, if

43:19

that charge is ever vacated, they can

43:21

actually re-bring one of the offenses that

43:23

they dismissed as part of the plea

43:25

agreement. So even in those cases where

43:28

people pled guilty only to this, there's

43:30

still a potential remedy here. So I

43:32

think at the end of the day,

43:34

the impact is going to be very,

43:37

very minimal. And that's particularly the case

43:39

if the government does go ahead, particularly for those who

43:41

have not yet gone to trial or

43:43

pleaded guilty and pursues these

43:45

charges on consistent with

43:47

the majority opinion. Yes. And I think also the

43:49

punch line in terms of the bottom line is

43:52

the number 5.9%. So only in

43:54

5.9% of all January 6 cases are those individuals... materially

44:00

benefited from the Fisher opinion. Those are

44:02

the individuals for which the only backup

44:04

appears to be a misdemeanor charge. And

44:07

I would think in those cases, those are the

44:09

ones that we are the least troubled about. That's

44:12

right. Absolutely. They are not the seditious conspiracy by

44:14

the Oath Keepers and the Proud Boys and all

44:16

the folks who are attacking law enforcement officers and

44:18

the like. These are the cases that I think

44:20

are on the outer edge on the margin. And

44:22

those are the 6% that are affected. So one

44:24

thing, I think that 5.9% figure is

44:27

really useful to understand that there, that

44:30

sort of seems to be the maximum

44:32

of the number of people who might

44:34

only face a misdemeanor now, not a

44:36

felony. But I think it's 0% who

44:38

actually, as

44:42

a result of this decision, don't face

44:44

anything. That's right. In other words, I

44:46

don't think there's anybody who doesn't face

44:48

any crime because of this decision. In

44:50

other words, this sort of idea that,

44:52

oh, wait a second, everyone

44:54

goes free. I think

44:56

the answer is no, because

44:58

there's nobody who isn't facing

45:00

either a felony, some

45:03

other felony or a misdemeanor,

45:05

or might still even be able

45:07

to be charged with the 1512C2

45:09

charge that everybody falls into, some

45:12

charge, but there is a bucket of

45:14

people who might get sort of a

45:16

sentencing reduction or only have a misdemeanor,

45:18

but it's a much smaller group than

45:21

the sort of widely touted beforehand

45:23

that this would be some devastating

45:26

loss for the government in

45:28

terms of hundreds of people going free.

45:30

Right, and also not even the devastating

45:32

loss, but it counteracts the disinformation or

45:34

misinformation about government overreach because the whole

45:37

point is that it's actually such a

45:39

teeny tiny small percentage of the cases

45:41

that are actually materially affected. Ryan,

45:43

it's been so great having you join us.

45:45

You also have such a calming voice. Andrew

45:48

and I just get each other riled up faster

45:50

and faster and faster, triggered. Yes, I'm

45:53

a really bad influence on Mary. Ryan

45:56

Goodman is, you know, when you think,

45:58

when people say, oh, that's academic, sometimes

46:00

people view that as a negative. Ryan

46:03

Goodman is the platonic ideal of what

46:05

you want somebody in

46:07

the Academy to be, which

46:09

is completely dispassionate about facts

46:11

and letting the facts govern

46:13

how you should think about

46:15

something. This piece, which

46:17

is said in our show notes, is

46:19

such a great example of that, and

46:21

then being really thorough and there's a

46:23

deep dive. Just final word is

46:25

that I know we went over a lot of

46:27

numbers, but in the piece there actually are some

46:30

pie charts. So that you don't have to

46:32

just do the math. There are some easy

46:34

visuals so that you can see

46:36

what Ryan was talking about. I think we're

46:38

all really indebted to you and to Just

46:40

Security for doing this deep dive. Well, thank

46:43

you so much. I did actually want to

46:45

do a little bit of a shout out

46:47

to my colleague Pooja Shah for creating the

46:49

pie charts and the information graphics because I

46:51

think they're so important for people's understanding. But

46:53

then to also say to require some of

46:55

what you both said, all

46:57

your listeners know this, but you both are national treasures

46:59

and it's just really a pleasure and a privilege to

47:01

be in this conversation with you. Well, Ryan, that's very

47:04

nice of you to say. Appreciate you, Ryan. Thanks so

47:06

much. Thank you. Thanks

47:08

so much for listening. This

47:10

podcast is produced by Vicki

47:12

Virgolina, our associate producers, Jameris

47:14

Perez, our audio engineers are

47:16

Katherine Anderson and Bob Mallory.

47:19

Our head of audio production is

47:21

Bryson Barnes. Aisha Turner is the

47:24

executive producer for MSNBC Audio. And

47:27

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47:29

president for content strategy at MSNBC.

47:33

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