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    Podcast Summary

    • Presidential ImmunityThe Supreme Court's ruling establishes absolute immunity for acts within a president's core duties, presumptive immunity for acts within the outer perimeter of official acts, and no immunity for unofficial acts, but the application of these buckets to specific cases raises concerns and could impact ongoing investigations like the January 6th probe.

      The Supreme Court's decision on presidential immunity establishes a new rule for the ages, with the majority holding that there is absolute immunity for acts within a president's core constitutional duties, presumptive immunity for acts within the outer perimeter of official acts, and no immunity for unofficial acts. However, the application of these buckets to specific cases raises more questions than answers. The middle bucket, in particular, is concerning, as it seems to imply that if conduct is ultimately determined to be official, it is immune. This could have significant implications for ongoing cases, such as the January 6th investigation, where the former president's communications with the Department of Justice are now off-limits to prosecution.

    • Presidential powersThe Supreme Court's decision in the Trump case broadens the definition of 'official acts' for the presidency, making it harder to distinguish between official and personal actions, and emphasizing the importance of electing a president with a strong sense of propriety.

      The Supreme Court's decision in the Trump case significantly expands the definition of "official acts" for the presidency under the Take Care clause. This expansive view allows for a wide range of presidential actions, even those outside the scope of federal government authority, to be considered official. The court's ruling also includes a presumption that most of what a president does is in their official capacity, making it difficult to distinguish between official and personal actions. The decision's implications extend beyond the current case, potentially altering the role of the presidency in our democracy and emphasizing the importance of electing a president with a strong sense of propriety and norms.

    • Presidential ImmunityThe Supreme Court's decision on Trump v. Opaque Corporations limits prosecutions against a sitting president for official acts, but leaves room for further arguments and factual development in lower courts.

      The Supreme Court's decision on Trump v. Opaque Corporations limits the scope of prosecutions against a sitting president for official acts, but leaves room for further legal arguments and factual development in lower courts. The decision prohibits consideration of the president's motives for official acts and bars the introduction of evidence of official acts if they are not rebutted by the government. However, Justice Amy Coney Barrett's dissent opens the door for potential prosecutions based on non-official acts. Judges will need to determine whether acts are official or not, and whether prosecution would interfere with executive functions. This process will likely involve extensive legal briefing and factual development.

    • Official acts and immunityThe Supreme Court's decision on Trump's immunity limits the use of evidence of official acts to prove motive, knowledge, or intent for unofficial acts during a criminal trial, making it challenging for prosecutors to provide connective tissue between unofficial acts and illegal activities.

      The Supreme Court's decision on former President Trump's immunity limits the use of evidence of official acts to prove motive, knowledge, or intent for unofficial acts during a criminal trial. This ruling makes it challenging for prosecutors like Jack Smith to provide connective tissue between unofficial acts and bribes or other illegal activities. The court's decision leaves significant work for lower courts to determine what qualifies as an official act and what does not. While the ruling does not establish a categorical immunity for Trump, it expands the definition of official acts and creates gray areas for potential prosecutions.

    • Presidential Immunity ExpansionThe Supreme Court's decision could expand presidential immunity to communications with DOJ, making it harder for investigations into potential criminal conduct by the president.

      The Supreme Court's decision in the case could potentially expand presidential immunity to include communications between the president and the Department of Justice, making it difficult for a special counsel or Congress to investigate potential criminal conduct by the president. The court seems to be suggesting that any element of the Take Care clause, which requires the president to take care that the laws are faithfully executed, is beyond regulation by Congress. However, it's unclear what this means in practice, and the court did not explicitly rule out the possibility of regulating these communications in certain circumstances. The decision also raises concerns about the potential for presidential abuse of power and the limits of the judicial branch's role in checking it.

    • Presidential ImmunityJustice Barrett's opinion suggests limits on presidential immunity should be addressed pretrial and appealable, not all presidential actions are unlawful, and the use of public record information in such cases may be limited.

      Justice Barrett's concurring opinion in the DOJ v. Moore case suggests a more nuanced and limited approach to presidential immunity than the majority opinion. While she agrees that there are constitutional and statutory limits on the prosecutability of a sitting president, she argues that these limits should be addressed pretrial and appealable. Barrett also emphasizes that not all presidential actions are unlawful just because they may be objectionable. For instance, she uses the example of a drone attack ordered by a president that might violate a federal murder statute but doesn't necessarily involve presidential immunity. The chief justice's seemingly opposing footnote in the opinion has left some confusion, as it appears to limit the use of public record information in such cases. Overall, Barrett's concurrence represents a more measured and thoughtful approach to the issue of presidential immunity.

    • Presidential ImmunityThe application of criminal statutes to the president's actions is complex and depends on whether the actions implicate core constitutional concerns, potentially granting the president immunity without a clear statement in the statute.

      The application of criminal statutes to the actions of the president is not a straightforward matter. While some actions may be considered official and not implicate any constitutional concerns, others may involve the exercise of exclusive or closely adjacent presidential powers, potentially granting the president a degree of immunity. This immunity may not require a clear statement in the statute, but rather an assessment of whether applying it to the president's actions would implicate core constitutional concerns. The discussion also highlighted the importance of providing clear guidance in legal decisions and the potential for differing interpretations of what constitutes official versus unofficial conduct.

    • Presidential ImmunityThe Supreme Court's broad interpretation of presidential immunity and evidentiary privilege could make it harder to hold presidents accountable for potential illegal actions, potentially weakening the rule of law and constitutional democracy.

      The Supreme Court's decision in the case regarding the President's privilege over documents and testimony could significantly limit the ability to hold presidents accountable for potential illegal actions. The court's broad interpretation of presidential immunity and the evidentiary privilege could make it harder to prosecute a sitting president, potentially allowing them to engage in blatant illegality with fewer consequences. The long-term implications could weaken the rule of law and the constitutional democracy, as the court's focus on protecting the presidency did not adequately address the importance of accountability for the president's actions. The decision was surprising given the history of presidential abuses and the rarity of prosecutorial abuses in this context.

    • Executive Privilege AccountabilityThe recent Supreme Court ruling on executive privilege may limit the ability to hold presidents accountable for potential misuse of power, but its impact on the January 6 case against Trump is unclear and the decision has been criticized for potentially making it harder to address presidential abuses of power in the future.

      The recent Supreme Court ruling on executive privilege could limit the ability to hold presidents accountable for potential misuse of power, as argued in the Trump case. However, some believe this decision may not have a significant impact on the January 6 case against Trump. The ruling has been criticized for potentially making it harder for the legal system to address presidential abuses of power in the future. Despite these concerns, some are trying to find a way to salvage something from the decision and will continue to discuss its implications in more detail tomorrow.

    Recent Episodes from Prosecuting Donald Trump

    ‘Textual Backflips’

    ‘Textual Backflips’

    As the fallout from the momentous Supreme Court decision on presidential immunity continues to reverberate, MSNBC legal analysts Andrew Weissmann and Mary McCord offer some updates, then turn to another significant ruling from the High Court out on Friday: Fisher v. U.S. At issue was whether the charge of obstruction of an official proceeding could be applied to Capitol rioters in the wake of their actions on January 6th. Despite the ruling in favor of the defendant, their guest Ryan Goodman of Just Security confirms the limited impact this decision will have on those charged for their role in the chaos of January 6th, and on Donald Trump’s election interference case in D.C.

    Further reading: Here is the analysis Ryan, Mary and Andrew wrote regarding the Fischer decision for Just Security: The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact.

    The Immunity Decision

    The Immunity Decision

    The consequential question before the Supreme Court on the limit and scope of presidential immunity has been decided, in three essential buckets. Veteran prosecutors Andrew Weissmann and Mary McCord decipher the ramifications for the former president, for the January 6th case brought by Special Counsel Jack Smith, and for the broad constitutional authority of the presidency itself. And they are joined by Trevor Morrison, NYU law professor and Dean Emeritus, to discern the finer points of the decision and the warnings cast in dissents by both Justice Sotomayor and Justice Jackson.

    ‘A Dessert Topping and a Floor Wax’

    ‘A Dessert Topping and a Floor Wax’

    There has been a slew of hearings before Judge Aileen Cannon in the Florida documents case over the past few days, and veteran prosecutors Andrew Weissmann and Mary McCord examine why some of these seem like unnecessary delays. Then, why Manhattan D.A. Alvin Bragg is asking for the limited gag order to continue in New York as Donald Trump awaits sentencing. And lastly, Mary and Andrew game out some scenarios as we hurry up and wait for the Supreme Court to decide on presidential immunity.

    Also, an exciting announcement! On Saturday, September 7th, MSNBC will be hosting a live event in Brooklyn called “MSNBC Live: Democracy 2024”. It will be your chance to hear thought-provoking conversations about the most pressing issues of our time, and to do so in person with some of your favorite MSNBC hosts. You can also take part in a sit-down dinner for an insider’s view of the upcoming election. Visit https://www.msnbc.com/DEMOCRACY2024 to learn more.

    Trigger Avenue

    Trigger Avenue

    This week, MSNBC legal analysts Andrew Weissmann and Mary McCord dive deep into several pending motions, including Jack Smith’s pre-trial motion to modify Trump's conditions of release in the Florida documents case, which would effectively impose a gag order, just under a different legal principle. Plus: Trump’s push to end the post-trial gag order in New York. And what's at issue in the suppression motion also filed in Florida that Judge Cannon will hear next Tuesday. Last up: a preview of Fischer v. United States, a pending Supreme Court case that could have a trickle-down effect on Trump’s DC case.

    Note: Listeners can send questions to: ProsecutingTrumpQuestions@nbcuni.com

    Post-Trial and Pre-Trial

    Post-Trial and Pre-Trial

    Former President Trump awaits his sentencing in New York, but he wants the gag order lifted in the meantime. Is that typical? Veteran prosecutors Andrew Weissmann and Mary McCord break down that motion, and the mechanics of sentencing in the lead up to July 11th. They also highlight Attorney General Merrick Garland’s recent op-ed calling for an end to escalated assaults on our judicial system in the wake of Trump’s verdict in Manhattan. Last up, Andrew and Mary scrutinize Judge Cannon’s schedule revisions for several motions in Florida documents case, and analyze the significance of Georgia racketeering case being stayed pending appeal.

    Further reading: Here is Attorney General Merrick Garland’s OpEd in the Washington Post that Andrew and Mary spoke about: Opinion- Merrick Garland: Unfounded attacks on the Justice Department must end

    Note: Listeners can send questions to: ProsecutingTrumpQuestions@nbcuni.com

    BONUS: Season 2 of “Rachel Maddow Presents: Ultra”

    BONUS: Season 2 of “Rachel Maddow Presents: Ultra”

    As a bonus for listeners, we’re sharing a special preview of the second season of the award-winning original series, “Rachel Maddow Presents: Ultra.” In the chart-topping second season, Rachel Maddow returns to uncover the shocking history of the ultra-right’s reach into American politics. Listen to the entire first episode now, and follow the show to get the whole series: https://link.chtbl.com/rmpust_fdlw. You can also subscribe to MSNBC Premium on Apple Podcasts for early access to every episode the Friday before it drops, and ad-free listening to all episodes of Ultra seasons one and two.

    The Disinformation Campaign

    The Disinformation Campaign

    It’s been less than a week since the jury reached a verdict in Donald Trump’s criminal trial and the political spin on the result is dizzying. MSNBC legal analysts Andrew Weissmann and Mary McCord seek to debunk several claims entered into the public discourse, especially around the Department of Justice being involved in a state case and that the trial was somehow ‘rigged’. They also address some breaking news out of Wisconsin, where Kenneth Chesebro, Jim Troupis and Michael Roman were criminally charged in that state's  fake elector scheme. Then, Andrew and Mary review the latest in Florida after Special Counsel Jack Smith refiled his motion to bar Trump from making statements that endanger law enforcement.

    Note: Listeners can send questions to: ProsecutingTrumpQuestions@nbcuni.com

    BONUS: Witness to History

    BONUS: Witness to History

    In a new special, Andrew Weissmann, Rachel Maddow and our team give an intimate and personal look inside the Trump courtroom. They tell some never-before-heard stories about what it was like to witness, firsthand, some of the most explosive moments of the trial. In addition to Rachel and Andrew, you'll hear from Joy Reid, Lawrence O’Donnell, Chris Hayes, Katie Phang, Lisa Rubin, Yasmin Vossoughian, and Laura Jarrett. Together, they share what it was like to witness history from the Manhattan Criminal Courthouse.

    In Closing

    In Closing

    It’s a historic moment, as the country awaits the jury’s verdict in the first ever criminal trial of a former president. To assess the gravity of what each side needed to convey in summations, MSNBC legal analysts Andrew Weissmann and Mary McCord scrutinize the approach to closing arguments by both the defense and the prosecution. Then, they turn to the latest from the Florida documents case, where Judge Cannon and Special Counsel Jack Smith are at odds. The issue: Donald Trump’s ‘lies’ posted and amplified, concerning the search warrants executed on his Mar-a-Lago estate in 2022.