But we begin tonight with breaking news in the special
counsel's investigation into Donald Trump's efforts to try to remain
in power after his 2020 election loss.
Late this afternoon, the New York Times reported that federal
prosecutors have questioned multiple witnesses in recent weeks,
including Trump's son-in-law, Jared Kushner,
on whether Trump had privately acknowledged in the days after
the 2020 election that he had lost.
Jared Kushner was not the only one of Trump's closest
advisors,
but as MSNBC legal analyst Lisa Rubin reminded me,
other than Trump advisor Jason Miller,
no one was more involved in the post election fundraising
efforts pushing the big Lie than Jared.
That could also mean the campaign finance angle of the
investigation is also very much alive.
It's the latest sign of a potential third indictment for
the twice impeached,
twice indicted former president. And the second coming from Special
Counsel Jack Smith.
While Smith has already brought charges against Trump for his
mishandling of classified documents,
as we see, he has also been hard at work
on this other investigation.
And from what we've been able to learn,
it goes well beyond just the events of January 6th,
including everything in the months leading up to the attack
on the US Capitol.
In particular, we're also learning more about the special counsel's
investigation into how Trump and his allies tried to pressure
state officials to help overturn their state's election results,
as well as forming the socalled alternate slates of electors
in states Joe Biden won.
Michigan Secretary of State Jocelyn Benson is now confirming that
she spoke with federal prosecutors as part of that probe
back in March.
She joins the secretary of states from some of other
2020 some of the other 2020 battleground states,
Arizona, Georgia and Nevada, who have either been subpoenaed or
have already spoken with the special counsel's team.
And there are signs that the grand jury investigating Trump's
efforts are back at it in the DC federal courthouse.
One of the special counsel's lead investigators in that case,
Thomas Wyndham, was spotted entering the building this morning.
He was also seen there on Tuesday.
As far as we can tell,
no notable witnesses were spotted in the courthouse on either
day,
making us wonder why else would he be there with
the grand jury if no witnesses were present?
If Jack Smith were to go forward with an indictment,
it begs the questions, what would it look like?
Well, a group of seven former prosecutors and defense attorneys
with decades of constitutional and criminal law experience laid out
just that.
In what's called a prosecution memorandum,
something federal prosecutors would prepare before bringing an indictment.
It would include admissible evidence,
possible charges and legal issues.
Joining me now is attorney Joshua Stanton,
one of the co-authors of that model prosecution menu,
and Paul Butler, former federal prosecutor,
Georgetown law professor and MSNBC legal analyst.
Thank you both for being here.
And I do want to start with you,
Joshua, If you could just sort of walk us through.
I read the introduction to the memorandum that you all
created.
But walk us through sort of in simple terms what
this prosecution memorandum alleges and what you think can be
proven by Jack Smith if he were to prosecute a
case like this.
Well, we took the evidence that we found in the
public record,
much of which was pulled together by the January 6th
committee and very helpfully
released in a report, along with a whole host of
supporting documents,
which we looked through.
Since then, there's also been quite a bit of public
reporting,
and so we analyzed all of that and essentially realized
that probably the the best case.
That special counsel Jack Smith could bring would be a
kind of three act case,
focusing on strategies that Trump
and his lawyers and lawyers for his campaign put together
in order to try to overturn the election through both
legal and illegal means in the court and in the
White House itself.
And when that failed, pushing
Vice President Mike Pence to himself.
Overturned the election in favor of Trump and when that
appeared to be failing,
moving on to a third act and on January 6th
itself using his massive supporters.
Either bringing them there in order to actually engage in
this insurrection where a minimum once they had moved into
the White House,
knowingly failing to stop this this assault
on on the Capitol. And so in each one of
those stages,
there are a whole host of federal crimes that Trump
and others could be charged with,
right? And I mean, it is really,
you lay it out, you all lay it out so
well.
And I'm going to big up Barbara McQuaid,
who apparently inspired some of the work that you all
did and who works us also with just security as
one of the
members of you all's team.
But.
The three acts, right. So Trump knows he lost,
but he doesn't want to give up power.
So he sets up all these different schemes.
The DOJ will make them do an investigation,
will do these fake electors.
We'll try that. And I just want to show the
fake electors from one of the states.
Let's just take a look at that because this is
what it kind of looked like.
And there were, I think we're going to put up
right.
And I think this might have been Michigan.
So you had these people actually meet
Joshua. Arizona. Sorry, this is Arizona,
by the way. A state that's also investigating,
maybe similar to the way Georgia is doing,
whether any laws were broken there,
these fake elector meetings, how do they play into what
you see as a potential prosecution?
Right. Well, what we understand is that there were a
group of people both in the Trump campaign as well
as in the White House,
chief among them, Trump. His,
his lawyers, John Eastman. In Kenneth Chessborough,
who essentially orchestrated as the evidence supports
a plan to have a kind of alternate slate of
electors meet
in that alternate slate, as as they
described it in their memos,
the concept was that they would submit certificates to Congress
saying we are the actual electors that were elected by
our state.
In favor of Trump. Now those certificates that they signed
on to,
that these that these alternate electors signed on to,
of course were fabricated. They were false.
Biden won those states. Now the the people actually signing
on to those may themselves not have fully understood the
the process,
what they would be used for,
why they were being used in that particular way.
But the evidence does seem to show that at least
the orchestrators of the scheme knew that they were false,
knew that they would be submitted to Congress,
and be used in a way
in an effort to overturn a lawful election.
And that violates again full host potentially of of federal
statutes.
And and Paul Butler, I wonder as a prosecutor when
you look at this and you look through this memo
and it read pretty coherent,
you know, sort of cogently to me,
does it matter if Donald Trump really believed that he
lost?
Because I just want to play you this this is
from the January 6th hearing and this is a bunch
of staffers saying Yep,
Yep, he knew he lost.
So we're in the Oval and there's a discussion going
on
and the president says.
I think it's it could have been Pompeo.
But he says words to the effect of
yeah, we lost, we need,
we need to let that issue go to the next
guy
being president.
I remember maybe a week after the election was called
I popped into the Oval just to like
give the president the headlines and see how he was
doing and he was looking at the TV and he
said,
Can you believe I lost to this ******
guy? Mark raised it with me on the 18th
and. So following that conversation where the motorcade ride driving
back to the White House and
I said, does the president really think that he lost?
And he said, you know,
a lot of times he'll tell me that he lost,
but he wants to keep fighting it and he thinks
that there might be enough to overturn the election.
But you know, he pretty much has acknowledged that he
that he's lost.
If you were bringing a case like this to trial,
Paul, would you need him to know he lost?
It certainly will help persuade the jury for crimes like
obstruction of an official proceeding or conspiracy to defraud the
United States that he had that criminal mind state.
But joy, that's been established over and over.
We just heard from Elisa Farrah Griffin,
who was the White House communication director,
she said Trump told her days after the election.
Can you believe I lost Mark Miley,
the chairman, the joint chief of staff?
Says Trump told him he lost.
That December, Trump's people filed 60 lawsuits claiming fraud in
the election,
and they lost 60 times.
There's audio of Steve Bannon saying before the election that
Trump was going to say he won,
even if he really didn't.
I repeat, Bannon said that before the election.
So joy, the evidence suggests.
That Trump knew he lost,
but he just didn't care.
As far as he was concerned,
losing the election didn't mean that he still couldn't be
president.
And and that extraordinary subversion of democracy by a sitting
president is exactly why Jack Smith has to prosecute this
case.
Josh, let me ask you this question.
Do you, You talked in your report,
you guys talked about assuming it's going to be a
narrow prosecution.
There are a lot of people who were a part
of this scheme and there are a lot of witnesses.
And we can put up a whole list of them,
from Mike Pence to Mark Short to Jared Kushner.
You can go on and on and on.
If it's a narrow prosecution,
the way it was in the documents case where it
was just Walty,
Nana and Trump, who would you say should be the
most nervous about being that second guy if there's a
second guy prosecuted?
Well, at a minimum, as a second guy,
it's the one who shows up the most through the
January 6th
committee report, which is John Eastman,
who drafted the memorandum, who orchestrated much of the the
actual
electoral use of the false electoral certificates,
and also the pressure campaign against Pence.
Now there's. Probably going to be several other people,
but he's probably the one that needs to be most
nervous.