Joining me now, senior legal affairs reporter for “Politico,” Josh Gerstein, former federal prosecutor, Alyse Adamson, and CNN legal commentator and former Trump attorney, Tim Parlatore. Glad to have all of you here today. Who expected this to come? Maybe not anyone, but certainly Jack Smith did.
We’ll start with you, Josh, because you call this filing a blueprint for Special Counsel Jack Smith in a jury presentation, if that would happen one day. What do you think is his goal in doing this, knowing the audience, it’s not really a jury in this case, it’s the judge, what is he trying to do?
JOSH GERSTEIN, SENIOR LEGAL AFFAIRS REPORTER, POLITICO: Well, he’s trying to give her as much of the evidence as he can because, so far, what she has really had is only the indictment, which was just sort of bare bones outline of his case. And this really fills in a lot of the details. A lot of the juicy nuggets —
COATES: Uh-hmm.
GERSTEIN: — that you just relayed are him laying out the facts. There’s one in there where they talk about a Trump campaign aide talking to somebody down in an arena where they were counting votes on election night and telling them to start a riot. Now, that allegation in sort of vague terms was in the indictment, but now we have a direct quote to back it up. So, it’s that kind of particularity.
But I do think that the overall gist of this argument is not as much to lay out all of his evidence, but to try to meet this standard you’re talking about that the Supreme Court has laid out for his case, which I think in some respects is a very difficult standard to suggest that none of this stuff —
COATES: Hmm.
GERSTEIN: — that he wants to present as part of the case is covered by presidential immunity. It’s sort of an uphill battle, maybe not in front of Judge Chutkan, but certainly in front of the Supreme Court if it goes back there, as you said. COATES: And Alyse, to that point, I mean, the parameters here, the Supreme Court essentially said if it’s an official act, if it’s while you were the president, not just while you were the president, but you were acting in a presidential fashion, uh, then it’s immune. But acting as a private citizen, totally different. In other words, if you are an official office seeker versus office holder, there’s a big distinction here.
They try to lay out in great detail some conversations that demonstrate — I think in some way, well, they’re trying to do intent. What do you think, uh, Jack Smith can do to try to demonstrate to the judge this is not a private act, I mean, not an official but a private one?
ALYSE ADAMSON, FORMER FEDERAL PROSECUTOR: Laura, I think Jack Smith has done that in this motion, and that is, as you said, lay out what the former president’s intent was during these conversations. And Jack Smith does this in meticulous detail. The filing starts with a very methodical presentation of the former president’s efforts in each state to have the election results overturned.
COATES: Uh-hmm.
ADAMSON: And it has fleshed out a lot of these gaps. He has had conversations. He had direct conversations with these officials, asking them to find more votes. We knew about that before, but now —
COATES: Uh-hmm.
ADAMSON: — we know of additional conversations. And so, he is acting as a candidate. There is only one benefit to him in doing that, and that is for him to remain in power. And also, Jack Smith makes a very important point in each one of those paragraphs. He said Trump was on notice.
COATES: Hmm.
ADAMSON: He was on notice that there was no fraud, and that’s important because the former president has argued that he was just protecting the integrity of the election. And now Jack Smith said, no, how could you be protecting the integrity? That would be an official duty. No, no, you know there was no fraud. You were acting in your personal capacity as a candidate wanting to stay in office.
COATES: Tim, of course, he would say, no, the integrity of election was me overseeing the election period. It wasn’t me as a candidate. It was me as the president of the United States.
But to Alyse’s point — I mean, the notice. They have in this document, in this pleading, they include Attorney General Bill Barr, who is basically saying — look, he saw him on Fox News, saw him saying that there was widespread fraud, and came out to say, no, there actually was not, we looked into the matter and beyond, trying to show there is evidence that he was on notice, that it was not actually going to happen, it did not happen, it was not happening. How persuasive would that be to this judge, not to a jury, but to this judge?
TIM PARLATORE, CNN LEGAL COMMENTATOR, FORMER TRUMP ATTORNEY: Well, I mean, I’m sure that to this judge, it’ll be very persuasive. But you have to remember, this is just the prosecutor’s brief.
COATES: Right.
PARLATORE: And it is cherrypicked of what he thinks is going to be the most favorable. Obviously, it’s omitting anything that would be favorable to the defense. And there is going to be a response. As I heard, they just asked for an extension of the response. We are not going to see that response.
COATES: Let me guess. Is it past the election?
PARLATORE: It is —
COATES: It is so funny, how that happened, isn’t it?
PARLATORE: It is.
(LAUGHTER)
PARLATORE: And the reality is when you get a 166-page, you know, filing, you need more than two weeks to — to respond to it. And so, once you have the full story, maybe the judge looks at it a little bit differently. I do think that he has laid out a good case here on, you know, presidential versus candidate. And that was one of the things that when I was on the case, you know, we were always, you know, really trying to draw the distinction of what is done as a candidate, what is done as a president —
COATES: Yeah.
PARLATORE: — because you want a president, if they do believe that there’s fraud, to investigate it, to find out whether there’s fraud, to make sure that the election is accurate.
[23:10:11]
But that is something that’s done through DOJ —
COATES: Yeah.
PARLATORE: — through law enforcement.
COATES: Well, you know, I want you both to comment, all of you, but there is this moment where I think, I’ll read it to you, where Smith says — quote — “It’s hard to imagine stronger evidence that conduct is private than when the president excludes his White House counsel and only wishes to have his private counsel present.”
This is when he’s talking to Pence and pressuring him not to certify the election. I mean, the White House counsel’s role is not to be private counsel, it’s to think about the actual presidency, the office itself, not only for this president, but for the posterity. The fact that he wanted his private counsel and not White House counsel, that’s pretty telling.
GERSTEIN: Yeah, but what was the reason for that? It may well have been because he was on the outs with his White House counsel, that they had clashed over a bunch of different issues. And what I see as I go through this motion is that Trump was getting advice and information from different sets of people. There were a lot of people telling him there were no real credible reports of fraud, and there were a handful of people who were telling him there might be fraud or they were hearing some evidence.
COATES: Uh-hmm.
GERSTEIN: And the prosecution here says, well, we’re going to declare all those people are co-conspirators. Rudy Giuliani, co-conspirator. So, his advice doesn’t count.
COATES: I think that law firm was the office of yes men LLP, right? That’s the one that was for some of them?
GERSTEIN: Right. So, that’s one of the dilemmas here.
(LAUGHTER)
It’s sort of like if you’re sick, you just keep going to doctors till you find one who tells you you’re not sick, you know.
COATES: Hmm.
GERSTEIN: I mean, it seems like that’s what Trump was doing, but I think that that’s going to be, if this does eventually go to trial, the thrust of his defense that he had credible people. The former mayor of New York City and U.S. attorney for the Southern District of New York giving him advice. Somebody who was an esteemed constitutional law professor, John Eastman, giving him advice. Sidney Powell. Maybe that one is a little tougher to swallow, giving some things that are in here where he calls her unhinged and some things even worse than that. So, maybe he had his doubts about her. So, it’s a question of —
COATES: Maybe (ph).
GERSTEIN: — are you entitled to believe anybody you want because you want to preserve some sort of a delusion that you have, that you’ve actually won the election?
COATES: What’s your response?
ADAMSON: My response is there was no evidence. I mean, I hear those arguments, but I think the problem is that those people who were telling him what he wanted to hear could not produce any evidence to substantiate their claims. And if they could, even a tiny amount, then I think that would have led some credibility into what they were saying. But they were theories. And the brief shows that, at some point, that was even conceded. I think it was from — who I believe to be Rudy Giuliani, says, well, we don’t have the evidence, we just have theories. Theories is not enough. COATES: Hmm.
ADAMSON: And the folks who were telling them there was no fraud, those were fellow Republicans. They would have gladly changed those results if they could. And they said, show us something, show us something. There was nothing to show.
COATES: Well, Tim, you’ve been in his counsel, and the idea of him sort of not just form (ph) shopping in sense of a judge, but lawyer shopping to figure out, I need you to tell me what I want to hear, how persuasive — again, these are allegations in a brief that’s intended to go to a judge on the immunity issue, and it’ll go back to the Supreme Court eventually. How persuasive is the argument that, look, I was just getting different advice from different people, I wasn’t trying to break the law, I was just hearing from different people?
PARLATORE: In the context of a criminal trial, that’s a great defense because ultimately, you have to prove to the jury — the government has to prove to the jury beyond a reasonable doubt that he absolutely knew that there was no fraud. And if he can show, hey, I was getting advice from all these different people, some say, you know, this, some say that, yeah, it is — it is something that’s a very good trial defense.
To say, you know, just because the prosecutor says you should have believed this person, not that person, doesn’t mean that beyond a reasonable doubt, this is the only person that’s right and that he did believe that person. So, I think it is — in the context of a criminal trial, it is a good defense.
COATES: Well, we’ll see. We’ve heard both arguments. You’re going to likely hear at a trial. But right now, obviously, we’re in the stages of trying to demonstrate to this judge whether the Supreme Court’s ruling on immunity means this case goes away or they can delineate between official and private conduct. Thank you so much, everyone.