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"The Arrest Is History." · Pod Save America

0:02
Speaker 1: Thank you.
0:20
Speaker 2: Welcome to a special arraignment episode of Pod Save America.
0:24
Speaker 2: I'm Jon Favreau.
0:25
Speaker 3: I'm Jon Lovett.
0:25
Speaker 2: I'm Tommy Vitor. And we are lucky to be joined
0:28
Speaker 2: by Leah Lippman and Kate Shaw, two of the brilliant
0:31
Speaker 2: legal experts from the award-winning Strict Scrutiny podcast. Great crossover.
0:36
Speaker 2: Welcome to the pod.
0:37
Speaker 4: Thanks for having us, guys.
0:38
Speaker 5: It's great to be here.
0:40
Speaker 6: Thank God you're here.
0:41
Speaker 2: All right. What a day, guys.
0:43
Speaker 3: I couldn't carry all the legal arguments myself.
0:45
Speaker 2: Okay.
0:45
Speaker 7: Yeah.
0:46
Speaker 2: So Donald Trump surrendered to authorities in New York. and
0:50
Speaker 2: entered a not guilty plea to 34 counts of filing
0:53
Speaker 2: false business records in the first degree. Felony charges that
0:56
Speaker 2: carry a maximum of four years in prison for each count.
0:59
Speaker 2: Manhattan District Attorney Alvin Bragg accused Trump of orchestrating a
1:03
Speaker 2: scheme with others to influence the 2016 presidential election that
1:07
Speaker 2: involved paying money to porn star Stormy Daniels, Playboy model
1:10
Speaker 2: Karen McDougal, and a doorman who claimed to have a
1:12
Speaker 2: story about Trump fathering a child out of wedlock. In
1:15
Speaker 2: making those payments, Bragg said that Trump, quote, violated election laws,
1:20
Speaker 2: made and caused false business records, and mischaracterized the payments
1:23
Speaker 2: for tax purposes. Okay. Leah, we've been hearing about how
1:29
Speaker 2: District Attorney Bragg's case might be based on a novel
1:33
Speaker 2: legal theory. Now that we know what the actual charges are,
1:37
Speaker 2: can you break down what that theory is?
1:39
Speaker 8: So it's actually not all based on a novel legal theory,
1:42
Speaker 8: but the novel legal theory is I think a reference
1:45
Speaker 8: to this idea that the state charge here is a
1:50
Speaker 8: misdemeanor as a default, but falsifying business records is a
1:54
Speaker 8: felony when it's done with the intent to commit some
1:57
Speaker 8: other crime. And here, one of the other possible other crimes.
2:00
Speaker 8: federal crimes that he's falsifying business records to conceal is
2:04
Speaker 8: a federal crime. And so the kind of uncertain or
2:07
Speaker 8: unknown legal theory or new legal theory is this idea
2:11
Speaker 8: that the separate crime you can be falsifying your business
2:14
Speaker 8: records to conceal is a federal crime rather than a
2:16
Speaker 8: state crime. But this entire case isn't actually premised on
2:19
Speaker 8: that theory because some of the other crimes that the
2:22
Speaker 8: Statement of Facts and the press conference indicated the DA
2:27
Speaker 8: is saying are that Trump was trying to conceal are
2:30
Speaker 8: state crimes, violations of state election law as well as
2:34
Speaker 8: state tax law. But there's also just this idea that
2:38
Speaker 8: because it's a new legal theory, that necessarily means it's
2:41
Speaker 8: wrong or bad or it was a problem to bring
2:44
Speaker 8: this case. But the reality is that new sets of
2:47
Speaker 8: facts and new ways of committing crimes will sometimes generate
2:51
Speaker 8: new legal theories.
2:52
Speaker 5: And that doesn't.
2:53
Speaker 8: Mean the theory is wrong. I mean, I don't know
2:56
Speaker 8: how many New York businessmen are in the habit of
3:00
Speaker 8: falsifying business records to conceal– extramarital affairs so that they
3:05
Speaker 8: can win a presidential election. In fact, I'm having some
3:08
Speaker 8: difficulties imagining like other people for whom that could even.
3:12
Speaker 5: Plausibly be true.
3:13
Speaker 8: So it's just not that surprising that we haven't seen
3:16
Speaker 8: this novel legal theory tested before.
3:18
Speaker 1: I think, first of all, shame on you for erasing
3:21
Speaker 1: unfaithful female business people having affairs.
3:25
Speaker 5: It's always the men.
3:27
Speaker 8: See, this is why we never do episodes with more
3:29
Speaker 8: than two men on them.
3:32
Speaker 2: That's the right call. So, Kate, I heard some people
3:35
Speaker 2: arguing that, so in the statement of facts that was released,
3:38
Speaker 2: they released the indictment and they released the statement of facts,
3:40
Speaker 2: which is more interesting and sort of tells the whole story.
3:44
Speaker 2: Bragg did not specify sort of the state crimes that
3:49
Speaker 2: he thinks Trump was trying to conceal with the falsified
3:52
Speaker 2: business records. Later in the press conference, he said it
3:56
Speaker 2: violated New York election law, which makes it a crime
3:58
Speaker 2: to conspire to promote a candidacy by unlawful means. The $ 130, 000
4:02
Speaker 2: wire payment exceeded the federal campaign contribution cap, and the
4:06
Speaker 2: false statements in AMI's books violated New York law. Why
4:10
Speaker 2: do you think he, A, didn't include all of that
4:14
Speaker 2: in the statement of facts, and B, seems to be
4:16
Speaker 2: suggesting that there are both federal crimes and state crimes
4:20
Speaker 2: that Trump was trying to conceal with the falsified business records?
4:23
Speaker 7: Right. So it turns out, as a matter of New
4:25
Speaker 7: York state practice, when you're taking this falsification misdemeanor and
4:28
Speaker 7: bumping it up to a felony because it's being committed
4:30
Speaker 7: against in furtherance of some other crime. You actually don't need,
4:34
Speaker 7: in the indictment papers, to charge the other crime. And
4:36
Speaker 7: you actually don't, it turns out, need to specify the
4:39
Speaker 7: other crime. Bragg said that very clearly at the top
4:41
Speaker 7: of the press conference today. So I think what he
4:43
Speaker 7: was doing here was actually pretty consistent with New York
4:46
Speaker 7: state criminal practice. But of course, these documents are being
4:49
Speaker 7: scrutinized in a way that distinguishes them from ordinary charging documents.
4:53
Speaker 7: And so I think there was a lot you know,
4:55
Speaker 7: as Leah's answer just kind of alluded to, a lot
4:58
Speaker 7: of like garment and hair rending about the failure to
5:02
Speaker 7: really specify the state and federal crimes that these falsification
5:07
Speaker 7: offenses may have been committed and further and stuff. But
5:09
Speaker 7: of course, there are broad references that I am sure
5:12
Speaker 7: will be developed as this case proceeds to both federal
5:15
Speaker 7: campaign finance violations, to this state election crime, which is
5:19
Speaker 7: basically just conspiring to advantage or disadvantage a candidate.
5:22
Speaker 4: And that's like a crime on the books. It's a
5:24
Speaker 4: New York state crime.
5:25
Speaker 7: And the scheme that's detailed both in the indictment, but obviously,
5:28
Speaker 7: you know, with more kind of color and detail in
5:31
Speaker 7: the statement of facts is obviously about advantaging a candidate
5:34
Speaker 7: for president, Donald Trump. So the face of the New
5:37
Speaker 7: York state statute seems to be pretty clearly satisfied. And
5:40
Speaker 7: then there also is that there are references made to
5:43
Speaker 7: state tax offenses. So I don't have any great insight
5:47
Speaker 7: into why there wasn't more detail provided, except that maybe
5:50
Speaker 7: it gives adversaries and viewers and readers the opportunity to
5:54
Speaker 7: pick apart something at a very early stage when you
5:57
Speaker 7: actually don't have any legal obligation to show all of
5:59
Speaker 7: your cards. So that's my best guess at why we
6:01
Speaker 7: have general references, but not specific detailed descriptions of the
6:05
Speaker 7: underlying offenses.
6:07
Speaker 6: Question for either of you. I mean, coming into today,
6:09
Speaker 6: there was a lot of hand-wringing about perceived weakness of
6:13
Speaker 6: this case. Some of it was in comparison to some
6:17
Speaker 6: of the other investigations into Donald Trump and the severity of, say,
6:19
Speaker 6: subverting our democracy. But setting that aside, now that we've
6:23
Speaker 6: seen all the specifics in this indictment, we've seen the
6:26
Speaker 6: statement of facts and the various documentation that was released today.
6:29
Speaker 6: How do you feel, generally speaking, about the strength or
6:33
Speaker 6: weakness of this case?
6:34
Speaker 8: You know, I feel like it's pretty clear that they
6:36
Speaker 8: have established a New York misdemeanor, the falsification of business records.
6:41
Speaker 8: And then I also think we learned at least one
6:43
Speaker 8: additional thing from the statement of facts and the indictment,
6:46
Speaker 8: which is they apparently do have some text and email exchanges,
6:51
Speaker 8: I think, between Michael Cohen and other people that suggest
6:56
Speaker 8: they wanted to delay having to make the payments until
7:00
Speaker 8: after the election in the hope that they wouldn't ever
7:03
Speaker 8: have to make them. And that's some pretty persuasive evidence
7:08
Speaker 8: that they were doing all of this to influence the election.
7:13
Speaker 8: And that could go a considerable way to proving that
7:17
Speaker 8: they were falsifying business records in order to conceal or
7:21
Speaker 8: commit some other crime. So I think they laid out
7:26
Speaker 8: a clear case for why this satisfied the threshold to
7:31
Speaker 8: bring a prosecution. do I wish that we were going
7:35
Speaker 8: to get a perfect case wrapped in a bow that
7:39
Speaker 8: actually held Trump accountable for all of the worst things
7:43
Speaker 8: he did.
7:44
Speaker 5: To our democracy?
7:46
Speaker 8: Sure. But I think that the path to an attempted
7:50
Speaker 8: coup and insurrection is paved with a bunch of other
7:54
Speaker 8: legal violations along the way. And so holding someone accountable
7:59
Speaker 8: for some of their thumbing.
8:01
Speaker 5: The nose at the rule of law is a good thing.
8:05
Speaker 8: And, you know, I'm not like super confident this is
8:07
Speaker 8: going to result in a conviction or that everything's perfect.
8:10
Speaker 8: But again, I think they kind of made their case
8:13
Speaker 8: that this fell squarely within the kinds of cases that
8:17
Speaker 8: they would just clearly be bringing if this was done
8:20
Speaker 8: by someone not in the Trump world.
8:23
Speaker 2: Kate, what did you think? Was there any surprises when
8:26
Speaker 2: you read the documents and heard Bragg at the press conference?
8:30
Speaker 4: So a couple of things.
8:30
Speaker 7: In terms of the press conference, I actually thought he
8:32
Speaker 7: spoke pretty, that Bragg did, he spoke pretty directly to
8:36
Speaker 7: the critics, basically saying things like, this case is trivial
8:40
Speaker 7: and doesn't compare to the kind of existential stakes of
8:44
Speaker 7: the special counsel investigation into January 6th, and maybe to
8:48
Speaker 7: a lesser degree, Mar-a-Lago and classified documents, but also the
8:51
Speaker 7: Fulton County, Georgia investigation. January 6th, Fulton County, these are
8:54
Speaker 7: about the integrity of our elections and democracy and Those
8:57
Speaker 7: things just seem far more consequential than this. But I
8:59
Speaker 7: actually thought the way Bragg framed this case was about,
9:03
Speaker 7: in equal parts, financial integrity and electoral integrity. He said,
9:07
Speaker 7: we're the financial capital of the country.
9:09
Speaker 4: It's actually really important.
9:10
Speaker 7: As a value that we be sure that people are
9:12
Speaker 7: filing accurate and trustworthy documents.
9:15
Speaker 4: So that goes to kind of the robustness of our
9:17
Speaker 4: financial system.
9:17
Speaker 7: And actually, the whole scheme was about subverting democracy and
9:21
Speaker 7: the electoral system by trying to skew the outcome of
9:24
Speaker 7: a presidential election through this concealment. of damaging information, right?
9:28
Speaker 7: So in 2015, we learn from the statement of facts,
9:31
Speaker 7: David Pecker sits down with Donald Trump and Pecker says
9:34
Speaker 7: about the National Enquirer, we're going to be your eyes
9:37
Speaker 7: and ears. We'll help conceal damaging information. We will elevate
9:40
Speaker 7: damaging information about your adversaries. And so that's the beginning
9:44
Speaker 7: of this scheme. And then, as you described at the outset,
9:46
Speaker 7: we have these specific instances of implementation of that scheme.
9:49
Speaker 7: So I do think Bragg is actually tying this to
9:51
Speaker 7: these broader democracy values. They weren't maybe evident on the
9:54
Speaker 7: face of these allegations as we kind of understood them
9:57
Speaker 7: before today, but actually really do seem to be present
9:59
Speaker 7: in this case.
9:59
Speaker 4: In addition to the other cases.
10:01
Speaker 8: Can we talk.
10:01
Speaker 1: About the campaign finance violation you're referencing? So when John
10:06
Speaker 1: Edwards tried to pay some hush money to quiet an affair,
10:11
Speaker 1: one of the defenses was, no, no, this wasn't about politics.
10:14
Speaker 3: I really didn't want my family to find out. It
10:16
Speaker 3: was going to be really bad.
10:18
Speaker 1: In this case, you have these texts that are basically like,
10:21
Speaker 1: keep it till after the election. It's basically a smoking
10:23
Speaker 1: gun that says this was done for the election. So
10:26
Speaker 1: that takes care of that excuse for it. But there's
10:29
Speaker 1: this issue of, so Donald Trump basically gets this in-kind
10:32
Speaker 1: contribution made to silence Stormy Daniels. And that is an
10:37
Speaker 1: illegal contribution. But if Donald Trump had, say, paid for
10:40
Speaker 1: it out of the campaign to quiet Stormy Daniels, that
10:43
Speaker 1: could be construed as an illegal use of campaign funds.
10:47
Speaker 1: Is it just the case that there's no way in
10:49
Speaker 1: the United States of America to pay hush money while
10:52
Speaker 1: you're running for president? Is that what you'll have us believe?
10:56
Speaker 5: I think what.
10:56
Speaker 8: You need to do in order to do it right
11:00
Speaker 8: and make sure it's like very legal and very cool
11:03
Speaker 8: is you can only pay a certain amount and then
11:06
Speaker 8: you need to publicly disclose it, which like obviously kind
11:09
Speaker 8: of defeats the purpose of hush money. But, you know,
11:12
Speaker 8: that's like one way to do it, I guess.
11:14
Speaker 2: I mean, I keep hearing this argument that these payments,
11:18
Speaker 2: to Lovett's point, shouldn't count as a contribution or expenditure
11:21
Speaker 2: under federal law because then it would mean almost every
11:24
Speaker 2: expenditure a candidate makes during the course of a campaign
11:27
Speaker 2: could be construed as a way to promote their candidacy
11:30
Speaker 2: and thus influence the election, whether it's buying new clothes
11:33
Speaker 2: or settling a lawsuit as you're running because you don't
11:37
Speaker 2: want that public. So what do you guys say to
11:39
Speaker 2: that argument? Because I keep hearing it.
11:41
Speaker 7: Yeah, I mean, I think the statement of facts just
11:42
Speaker 7: really kind of puts that to rest in producing really
11:46
Speaker 7: substantial evidence that everyone involved in the scheme that this
11:50
Speaker 7: indictment charges knew that these payments were being made in
11:53
Speaker 7: order to improve the electoral prospects of Donald Trump.
11:56
Speaker 4: That was the point.
11:57
Speaker 7: So, you know, I think in the abstract, one can
12:00
Speaker 7: make the arguments that there were other justifications and presumably
12:03
Speaker 7: there will, if this goes to trial, be evidence that
12:05
Speaker 7: Trump's lawyers try to introduce that suggest alternate motives. But
12:09
Speaker 7: the evidence that we've seen, and we've just seen the
12:11
Speaker 7: indictment in the Statement of Facts, suggests that there was
12:13
Speaker 7: at least one key reason, and maybe only one reason,
12:16
Speaker 7: that these payments were made, and that was to help
12:18
Speaker 7: get Donald Trump elected president.
12:20
Speaker 8: I will say like, I would not put it past
12:23
Speaker 8: Trump's lawyers or like at least one to three Supreme
12:25
Speaker 8: Court justices to flirt with the idea that actually you
12:28
Speaker 8: have a First Amendment right to use your money in
12:33
Speaker 8: like whatever way you want to elect a candidate of
12:36
Speaker 8: your choice because like that speech, it's all just hush money.
12:40
Speaker 8: And I guess like I wouldn't be surprised to see
12:43
Speaker 8: an argument in that vein like floated somewhere.
12:45
Speaker 5: In the case.
12:46
Speaker 6: I just really can't get over the head of the
12:48
Speaker 6: National Enquirer going to Donald Trump and being like, I
12:51
Speaker 6: will work for you. I will be your eyes and ears.
12:53
Speaker 6: I will suppress all these stories that could damage you.
12:55
Speaker 6: Because again, back to John Edwards, the National Enquirer broke
12:59
Speaker 6: the story of the affair with Riel Hunter and that
13:01
Speaker 6: John Edwards had had a child with her. In this case,
13:05
Speaker 6: they were gobbling up stories to protect Donald Trump. Imagine
13:09
Speaker 6: if we had the National Enquirer buying up the Reverend
13:12
Speaker 6: Wright videos in 2008.
13:14
Speaker 3: Well, the point is, I think it'd be legally dubious.
13:16
Speaker 3: What a great advantage. I think I think I think
13:17
Speaker 3: I'm glad it didn't happen. We'd be up Schitt's Creek.
13:21
Speaker 3: It's just so nice.
13:22
Speaker 2: I think we talked about this last time you were
13:25
Speaker 2: on to discuss this case. But like, what do you
13:28
Speaker 2: think now are sort of Bragg's biggest challenges in getting
13:33
Speaker 2: a conviction here? Like, what are the what are the
13:35
Speaker 2: real obstacles in this case?
13:38
Speaker 8: I think there will be some initial motion practice around
13:41
Speaker 8: maybe malicious prosecution, vindictive prosecution, where they attempt to have
13:45
Speaker 8: the indictment dismissed on that basis. I think that's very
13:49
Speaker 8: unlikely to be successful.
13:52
Speaker 5: And instead, I think.
13:54
Speaker 8: what we're likely to see is challenges to the credibility
13:57
Speaker 8: of some of the witnesses at any trial that does happen,
14:02
Speaker 8: questioning the credibility of Michael Cohen or David Pecker or
14:07
Speaker 8: whoever the other witnesses end up being. So I think
14:11
Speaker 8: that that is going to be a big part of
14:13
Speaker 8: the case. But I think that a lot of it
14:15
Speaker 8: before that point is going to be about these threshold
14:18
Speaker 8: legal questions like, is it even permissible to enhance this
14:21
Speaker 8: misdemeanor charge to a felony? On the basis of a
14:24
Speaker 8: federal crime, does federal campaign finance law preempt the ability
14:28
Speaker 8: to enhance the misdemeanor charge on the basis of the
14:31
Speaker 8: New York state election law crime and other kind of
14:33
Speaker 8: legal arguments? So I think those are still on the table.
14:36
Speaker 8: But you add to those kind of credibility challenges to
14:39
Speaker 8: the likely witnesses that the prosecution is going to be
14:41
Speaker 8: relying on.
14:51
Speaker 1: Kate, earlier in his Mar-a-Lago, I don't know, address, he
14:57
Speaker 1: raised the judge and he said he was a Trump-hating
14:59
Speaker 1: judge and raised the judge's family and maligned the family.
15:03
Speaker 6: I have a Trump-hating judge with a Trump-hating wife and
15:05
Speaker 6: a Trump-hating family.
15:07
Speaker 1: So, you know, tradition, I don't know, judges don't usually
15:10
Speaker 1: like that kind of thing, presumably. What do you expect
15:13
Speaker 1: to happen? What kind of position does that put the
15:16
Speaker 1: court in as they try to deal with this unique defendant?
15:20
Speaker 7: I don't think a gag order is out of the question.
15:23
Speaker 7: So judges sometimes in cases will basically issue orders directing
15:28
Speaker 7: defendants to refrain from talking about particular topics. It's not routine,
15:32
Speaker 7: but it's definitely done. Roger Stone was maybe the most
15:35
Speaker 7: recent and most famous recipient of a gag order, but
15:39
Speaker 7: he was posting on social media about the judge presiding
15:42
Speaker 7: over his case. And she ended up issuing and then
15:45
Speaker 7: doubling down on a gag order. So I wouldn't be surprised.
15:48
Speaker 7: You sort of saw in the hearing today the DA's
15:51
Speaker 7: office beginning already to raise some of that rhetoric by
15:56
Speaker 7: Trump directed at Bragg and others. So I'm not sure
16:00
Speaker 7: if based on just the Mar-a-Lago remarks, we're going to
16:03
Speaker 7: see the DA's office try to get back in front
16:05
Speaker 7: of the judge and say, well, you didn't we didn't
16:06
Speaker 7: ask for a gag order. They basically asked for a
16:08
Speaker 7: protective order, essentially asked the judge. to tell Trump and
16:12
Speaker 7: his team they can't disclose the discovery materials that the
16:15
Speaker 7: DA's office is going to have to give them.
16:16
Speaker 4: There could be identifying information. There could be other reasons.
16:19
Speaker 7: The DA's office doesn't want Trump blasting on social media
16:22
Speaker 7: the contents of documents exchanged with the prosecution. But there
16:25
Speaker 7: was no request, as I understand it, for a gag order.
16:28
Speaker 7: So we could see a request for one. And a
16:31
Speaker 7: gag order that was narrowly crafted to restrict his ability
16:34
Speaker 7: to talk about the judge and the proceedings, I think
16:37
Speaker 7: would be perfectly permissible if you're going to try more
16:38
Speaker 7: broadly to restrict the speech process. of a now declared
16:41
Speaker 7: presidential candidate, I think people would raise, obviously, First Amendment objections.
16:45
Speaker 7: But a narrow gag order, I think, is definitely in
16:48
Speaker 7: the realm of the possible.
16:49
Speaker 2: Let's talk about timing. They said that next court date
16:53
Speaker 2: for Trump will be December 4th, quite a ways away.
16:56
Speaker 2: We talked about, you know, Trump will certainly try to
16:59
Speaker 2: get the case thrown out. Are there other strategies he'll
17:03
Speaker 2: try to use to delay even beyond December 4th? Or
17:07
Speaker 2: I saw that the The prosecutors want a trial in
17:11
Speaker 2: January of 2024, I believe, and Trump wants the trial
17:14
Speaker 2: in spring of 2024. What are your thoughts on sort
17:18
Speaker 2: of the timing and what they could do to delay this?
17:20
Speaker 5: I mean, they're going to file a bunch of motions.
17:22
Speaker 8: You know, you add to different theories for like a
17:24
Speaker 8: motion to dismiss the indictment, trying to change venue. My
17:28
Speaker 8: guess is they're going to try to challenge the legal
17:30
Speaker 8: theories involved in the case.
17:31
Speaker 4: They will probably.
17:32
Speaker 8: Try to raise some questions or challenges to whatever, you know,
17:36
Speaker 8: discovery negotiations that they begin now and try to work
17:40
Speaker 8: through over these next years. few weeks or months. But
17:45
Speaker 8: the fact that his next court appearance isn't until December,
17:49
Speaker 8: this case has been framed as, are people above the law?
17:53
Speaker 8: Is Donald Trump going to be held to the law?
17:55
Speaker 8: And it's already clear he's being treated differently. And we
17:59
Speaker 8: already kind of touched on this when we raised the
18:01
Speaker 8: possibility that it might be a problem that this case
18:05
Speaker 8: turns in part on an untested legal theory. The fact
18:08
Speaker 8: that people are even raising questions about that is a
18:10
Speaker 8: sign that this case is being treated differently. They're asking
18:15
Speaker 8: the prosecution to effectively come with an indictment that rests
18:19
Speaker 8: on a set of facts that courts have already held
18:22
Speaker 8: in other cases constitute a crime under this statute. And
18:27
Speaker 8: that's not the way ordinary criminal cases are treated. And
18:31
Speaker 8: Neither is telling the defendant, like, we'll see you back
18:34
Speaker 8: in eight months. In a lot of felony cases, you
18:37
Speaker 8: have to check in with the court more regularly. And
18:39
Speaker 8: so he didn't have a mugshot taken. So he is
18:42
Speaker 8: already getting a lot of indulgences that are being made
18:47
Speaker 8: in the interest of trying to make this process be
18:53
Speaker 8: and appear as fair as it can be. Because Of course,
18:58
Speaker 8: no one wants to live in a world where political
19:00
Speaker 8: foes are prosecuted just because they're political foes. But the
19:04
Speaker 8: opposite of that world isn't that. Political opponents are above
19:10
Speaker 8: the law and can never be held to the law.
19:12
Speaker 8: And I think that the DA's office is really trying
19:15
Speaker 8: to thread the needle, as are other offices, and they're
19:19
Speaker 8: struggling with how to say that. look, we're trying to
19:22
Speaker 8: do the right thing, but we also have to treat
19:25
Speaker 8: this case like other criminal cases in some ways.
19:29
Speaker 1: Kate, Leah, do you say defendant or defendant? I think
19:32
Speaker 1: it's so cool when TV lawyers say defendant. It makes
19:35
Speaker 1: me feel like I'm watching Law & Order.
19:38
Speaker 5: I guess I say defendant.
19:39
Speaker 8: I don't know if that's because I'm Minnesotan or not
19:42
Speaker 8: a TV lawyer, but a podcast lawyer, so sorry to disappoint.
19:47
Speaker 3: Kate, what about you?
19:48
Speaker 4: Defendant, definitely.
19:49
Speaker 3: Defendant, just defendant?
19:51
Speaker 4: Team defendant.
19:51
Speaker 2: I've never heard defendant.
19:52
Speaker 1: Like, remember that guy from Philadelphia that represented Trump during
19:56
Speaker 1: the impeachment? He says defendant.
19:57
Speaker 3: I would bet money on it, you know?
19:59
Speaker 6: Joe Tapioca?
20:00
Speaker 3: Yeah, no, not Joe Tapioca.
20:02
Speaker 1: Do you think we can call him Joey Tapioca, or
20:05
Speaker 1: does that feel offensive on some level?
20:08
Speaker 2: Questionable.
20:09
Speaker 8: I mean.
20:10
Speaker 5: you know, what is even offensive these days?
20:13
Speaker 3: Do you regret doing this crossover?
20:16
Speaker 1: This is, this is, I think this is good.
20:19
Speaker 2: We now have, like, we were watching some Fox News
20:22
Speaker 2: just to see what's going on over there. Like, the
20:25
Speaker 2: chorus of right-wing pundits and even elected Republicans now basically
20:30
Speaker 2: just calling for some prosecutor somewhere to start indicting Democratic
20:36
Speaker 2: officials is growing louder and louder. Like, Is that something
20:41
Speaker 2: that you guys worry about that could actually start happening
20:45
Speaker 2: here or what? Oh, yeah.
20:46
Speaker 4: We're both nodding hard. We worry about it.
20:48
Speaker 7: I don't think it's a reason that the Manhattan DA,
20:51
Speaker 7: you know, should have hesitated here.
20:52
Speaker 4: But I do think it's a real concern.
20:55
Speaker 7: There are two things that give me some comfort that
20:57
Speaker 7: we're not about to see despite the calls for somebody
21:00
Speaker 7: to do it. You know, some floodgates opening. One is
21:04
Speaker 7: this is the Manhattan DA. This is Manhattan where former
21:07
Speaker 7: President Trump conducted his business, his campaign. You know, this
21:10
Speaker 7: is an office that has a plausible nexus, a more
21:13
Speaker 7: than plausible nexus to the events charged in this indictment.
21:16
Speaker 7: Some random prosecutor in rural Texas trying to indict a
21:21
Speaker 7: former Democratic president or member of Congress or anyone else.
21:25
Speaker 7: It's just really hard to see even a threshold plausible
21:28
Speaker 7: case that could be made. And that doesn't mean that
21:30
Speaker 7: some elected DA might not try to make it.
21:33
Speaker 4: But I do take.
21:34
Speaker 7: Some comfort, actually, in the constraining force of legal norms
21:38
Speaker 7: and legal culture. I don't think these things will save us.
21:40
Speaker 7: But I actually think elected DAs, they don't write their
21:43
Speaker 7: own charging documents. Like, they have staffs that help them
21:47
Speaker 7: do these things.
21:48
Speaker 4: And I'm not sure.
21:49
Speaker 7: I think it would be a little bit challenging in most,
21:52
Speaker 7: you know, prosecutor's offices to to try to get your
21:54
Speaker 7: people to sit down and write an indictment charging. I'm
21:56
Speaker 7: not even going to name names of Democratic officials. I'm
21:59
Speaker 7: not even sure who on Fox News is being singled out,
22:00
Speaker 7: although I'm sure I can guess. But I actually don't
22:03
Speaker 7: know that it's easy for pundits to call for it.
22:06
Speaker 7: I actually think sitting down in a prosecutor's office and
22:08
Speaker 7: trying to draft such a document, even if you wanted
22:10
Speaker 7: to do it for political reasons, I'm not sure that
22:12
Speaker 7: you would get your team to do it because sort
22:14
Speaker 7: of people are steeped in these sort of rule of
22:16
Speaker 7: law norms in legal culture. Again, I don't think that'll
22:19
Speaker 7: save us, but I do think that it's at least
22:20
Speaker 7: a somewhat to my mind comforting constraint, at least in
22:24
Speaker 7: terms of this becoming open season on Democrats by local prosecutors.
22:28
Speaker 8: Okay, my little optimist, but like, can't you imagine like
22:30
Speaker 8: Sam Alito just like knocking back a cold one and
22:33
Speaker 8: like going out and making a citizen's arrest of Hunter Biden?
22:38
Speaker 5: They made me do it.
22:39
Speaker 3: That'd be cool.
22:40
Speaker 1: Jesse Waters is waiting outside Dianne Feinstein's doctor appointment.
22:43
Speaker 6: Hey, as long as it's a safe space for dumb questions.
22:46
Speaker 6: Why do we still do courtroom sketches? They got Trump
22:48
Speaker 6: looking like the Grinch that stole Mar-a-Lago here.
22:51
Speaker 3: We get a camera in there?
22:52
Speaker 8: I mean, we did get some photos from the arraignment.
22:58
Speaker 8: But courtroom sketches are just kind of a thing. And
23:01
Speaker 8: everyone always looks really horrible. They're given like a shade
23:05
Speaker 8: of green and their face just looks kind of goblin-esque. And,
23:10
Speaker 8: you know, so here too, he was treated the same
23:13
Speaker 8: as everyone else who goes through New York courts.
23:15
Speaker 2: Okay. Why do you guys think that Merrick Garland and
23:18
Speaker 2: the DOJ didn't bring this case like, you know, shortly
23:23
Speaker 2: after Biden took office?
23:24
Speaker 7: I mean, one theory, honestly, is that The Department of
23:28
Speaker 7: Justice has limited resources, and January 6th had just happened
23:32
Speaker 7: and actually come into office, and that is the DOJ priority.
23:35
Speaker 7: And this feels far less consequential. Now, look, DOJ can
23:38
Speaker 7: walk and chew gum at the same time. They can
23:39
Speaker 7: investigate multiple things. But I have to imagine that's what's
23:43
Speaker 7: immediately before you as you take over the Department of Justice.
23:47
Speaker 4: Maybe you decide to allocate your resources that way. So
23:49
Speaker 4: that's one theory.
23:49
Speaker 1: Hmm.
23:50
Speaker 8: I think, you know, some people at DOJ might be
23:52
Speaker 8: afraid of their own shadows and are so committed to
23:56
Speaker 8: the idea of being institutionalists that they treat office holders
24:01
Speaker 8: as kind of coextensive or synonymous with the office. And
24:05
Speaker 8: to them, prosecuting a former president is prosecuting like the presidency.
24:10
Speaker 8: And they've insisted in some ways on treating President Trump
24:14
Speaker 8: as if he was just like any other president. And that,
24:16
Speaker 8: I guess, means treating him as though he doesn't break
24:19
Speaker 8: the law. So I think that that is also probably
24:22
Speaker 8: part of it. I think a more sympathetic reconstruction is,
24:25
Speaker 8: you know, as we were just kind of talking about earlier,
24:28
Speaker 8: these cases do sometimes take more time to develop additional facts.
24:32
Speaker 8: You know, we talked about some of the additional facts
24:34
Speaker 8: that we learned from the statement of facts here and
24:37
Speaker 8: other statements and So it's possible that they are still
24:41
Speaker 8: looking into some additional things related to, for example, January
24:45
Speaker 8: 6th or the Georgia call or other things that might
24:49
Speaker 8: later on down the road generate charges. So that's another
24:52
Speaker 8: possibility as well. Although, you know, I have to say
24:55
Speaker 8: I'm not really holding my breath for that.
24:57
Speaker 2: Well, the one that you didn't mention that seems like
25:00
Speaker 2: maybe it's not the most severe crime that Trump committed,
25:04
Speaker 2: but it seems like to me, at least the most
25:06
Speaker 2: open and shut case is the documents case. And there
25:09
Speaker 2: was news in the last week that DOJ now has
25:13
Speaker 2: evidence that after the subpoena was issued, that they moved
25:17
Speaker 2: the boxes out of Mar-a-Lago and Trump inspected personally some
25:21
Speaker 2: of the boxes. Do you guys think that's a strong one?
25:25
Speaker 2: Because it really strikes me that.
25:28
Speaker 2: I don't know how he wriggles out of that one.
25:30
Speaker 4: It seems really strong.
25:31
Speaker 8: Yeah.
25:31
Speaker 4: I mean, two things.
25:32
Speaker 7: One, the fact that you've had District Court Judge Pierce
25:36
Speaker 7: attorney-client privilege on the basis of the crime fraud exception,
25:39
Speaker 7: which is very rare and suggests to me just, you know, really,
25:43
Speaker 7: really strong evidence is developing that there was one or
25:46
Speaker 7: multiple crimes being contemplated and planned between Trump and his lawyers.
25:51
Speaker 4: That's, I think, significant.
25:52
Speaker 7: And also, like, so this is the documents case, but also, like,
25:55
Speaker 7: this is as much about obstruction of justice, right? Like,
25:58
Speaker 7: the classified documents themselves are obviously part of the obstruction,
26:02
Speaker 7: but it is what appears to be the quite willful
26:04
Speaker 7: refusal to return and concealment and moving, et cetera, of documents.
26:08
Speaker 7: So the taking of the documents is, to my mind,
26:11
Speaker 7: sort of the least of the offenses. And the taking
26:13
Speaker 7: of the documents, it seems to me, just on the facts,
26:15
Speaker 7: you sort of have him dead to right on those.
26:17
Speaker 7: But the rest of it seems really strong, too. So
26:20
Speaker 7: I think that's relatively close to being charged if they're
26:23
Speaker 7: going to charge it. I don't think we're talking about
26:25
Speaker 7: waiting a long time at this point. So it could
26:27
Speaker 7: be that we see in a matter of weeks or months,
26:29
Speaker 7: you know, multiple other shoes drop.
26:31
Speaker 4: This is just the first.
26:42
Speaker 6: There's some suggestion out there by, you know, sort of
26:44
Speaker 6: legal analysts that DA Bragg jumped first and issued this
26:48
Speaker 6: indictment and that might prod others to come forward. Do
26:52
Speaker 6: you think there are others sort of leading investigations into Trump?
26:55
Speaker 2: Do you think there's.
26:55
Speaker 6: Actually that sort of thinking and analysis amongst prosecutors, Leah?
26:59
Speaker 8: Yeah.
27:00
Speaker 5: No.
27:00
Speaker 8: I mean, I think the most plausible explanation for the
27:03
Speaker 8: timing of at least the New York case is they're
27:05
Speaker 8: bumping up against the statute of limitations. And so there
27:09
Speaker 8: was a time limit on when they would be able
27:12
Speaker 8: to bring this case. And it was apparent from the
27:15
Speaker 8: things that they were saying and other things we've learned
27:16
Speaker 8: in the last week, like the fact that Vance said
27:20
Speaker 8: that they were basically told to stand down by SDNY
27:24
Speaker 8: when that was still under the supervision of the Trump administration.
27:27
Speaker 8: And The Vance office had also been bogged down in
27:31
Speaker 8: trying to get Trump's tax returns, you know, in the
27:33
Speaker 8: case that went all the way.
27:34
Speaker 5: Up to the Supreme Court.
27:35
Speaker 8: And so there are all sorts of reasons why it
27:39
Speaker 8: takes a while for some of these cases to proceed.
27:42
Speaker 8: But all of the cases also have different time constraints,
27:46
Speaker 8: you know, as far as statute of limitations and other
27:48
Speaker 8: kinds of considerations. And here, again, it seemed like the
27:52
Speaker 8: five-year statute of limitations for the felony crimes was going
27:56
Speaker 8: to expire. based on some of the last acts that
27:59
Speaker 8: went into trying to conceal the falsification of these business
28:02
Speaker 8: records back in 2018. So that seemed to me to
28:06
Speaker 8: be like the best explanation for the timing of at
28:09
Speaker 8: least the New York case.
28:11
Speaker 7: Got it.
28:11
Speaker 1: Speaking of the timing, you see this kind of this
28:14
Speaker 1: argument that, oh, this is the weaker of the cases.
28:16
Speaker 1: Wouldn't it have been better if we started with something
28:18
Speaker 1: like Fulton County or the documents case or the January
28:22
Speaker 1: 6th case? in a way saying, oh, I wish these
28:24
Speaker 1: prosecutors were a little bit more political in how they
28:27
Speaker 1: approach this, while at the same time worrying that this
28:31
Speaker 1: Bragg case appears to be political.
28:33
Speaker 3: How do you.
28:35
Speaker 1: Unpack that problem, that sort of logical confusion, Kate?
28:41
Speaker 7: Yeah, I mean, I think that it's sort of like
28:43
Speaker 7: a heads, Trump wins, tails, everybody else loses, right? Like
28:47
Speaker 7: sort of logic, like it's wrong to that this sort
28:49
Speaker 7: of went first because it's political, but also be political
28:51
Speaker 7: to do the coordinating. I mean, I think that it's
28:54
Speaker 7: right for all these prosecutors to be independently assessing the
28:58
Speaker 7: evidence in front of them, considerations like Leah mentioned of
29:01
Speaker 7: statutes of limitations and proceeding without giving any thought to
29:04
Speaker 7: the other investigations and how optimal sequencing might work. I'm
29:08
Speaker 7: sure they're not explicitly coordinating about this. I doubt they're even,
29:12
Speaker 7: or at least I'm sure they're trying not to put
29:14
Speaker 7: any real thought into this. I will say though, I
29:16
Speaker 7: think in a subtle way, Not as a matter of
29:20
Speaker 7: actual coordination, but I do think that it is possible
29:23
Speaker 7: that this has something of like a dam breaking effect
29:26
Speaker 7: only in that if you really are the first and
29:29
Speaker 7: you don't have some external pressure like a statute of
29:31
Speaker 7: limitations about to run, I can imagine spending a lot
29:35
Speaker 7: of time making sure the documents that you're going to
29:37
Speaker 7: file that will be the first indictment of a former president.
29:40
Speaker 4: Are absolutely perfect.
29:42
Speaker 7: And I imagine that the bar may be a little
29:45
Speaker 7: bit lower if it's going to be the second or
29:46
Speaker 7: the third. And so you may be, if your case
29:48
Speaker 7: is ready, but you might take another week or two
29:50
Speaker 7: to really polish it. you might go ahead and announce
29:53
Speaker 7: it without that additional kind of vetting. So I do
29:55
Speaker 7: think that on the margins, it might move things a
29:57
Speaker 7: little bit faster in the other cases.
29:59
Speaker 2: I think it's a great appetizer. Yeah, I agree.
30:01
Speaker 3: I think Bragg did throw the first brick at Stonewall.
30:04
Speaker 3: It's like your first kid is.
30:06
Speaker 6: Eating organic food and going to bed on time. The
30:08
Speaker 6: second or third, you're just like, throw them in a
30:10
Speaker 6: cage with some water.
30:12
Speaker 2: I think the main course is coming. I'm going with my, yeah,
30:15
Speaker 2: I'm excited. And look, It sounds like he's going to
30:16
Speaker 2: have a lot of court dates between now and Iowa,
30:20
Speaker 2: or between now and November. He's going to be going
30:23
Speaker 2: back and forth on the campaign trail.
30:24
Speaker 1: He's going to have one lawyer in New York being like,
30:26
Speaker 1: I'm sorry, I'm not available during that time. I'm on
30:28
Speaker 1: trial in Fulton County.
30:30
Speaker 3: You guys got to work together. I got a packed
30:32
Speaker 3: dance card.
30:33
Speaker 2: Yeah, it's going to make debates complicated.
30:35
Speaker 5: Can I just say one additional thing?
30:36
Speaker 2: Sure.
30:37
Speaker 8: Yes, please.
30:38
Speaker 5: Okay. So during all of this, Donald Trump Jr.
30:43
Speaker 8: Tweeted out a picture of The judge in the case's child.
30:49
Speaker 8: And I just think it's worth pausing over the fact that, like,
30:53
Speaker 8: in the last few years, we have seen Republicans be
30:59
Speaker 8: very attuned to the possibility of protests at justices' homes.
31:06
Speaker 8: And there have also been real events of violence against
31:09
Speaker 8: judges and their families. In particular, Judge Salas's son was
31:12
Speaker 8: murdered in when a gunman went to her house. And
31:17
Speaker 8: the idea that Trump Jr. would do this is extremely appalling.
31:21
Speaker 8: And I would think slash hope that if anything would
31:24
Speaker 8: generate like more concern about protective orders or gag orders
31:28
Speaker 8: or like procedures to protect judges, like it would be this.
31:34
Speaker 2: Not only did Don Jr. tweet the picture, Trump in
31:37
Speaker 2: his speech tweeted, specifically raised the issue of the daughters. Oh,
31:41
Speaker 2: she worked for the Biden-Harris campaign, brought her up, talked
31:44
Speaker 2: about the judge, talked about the judge's wife, said that
31:47
Speaker 2: Bragg should be prosecuted. I mean, the speech was just
31:50
Speaker 2: like typical Trump bullshit and there was like nothing too
31:53
Speaker 2: exciting about it. But that, I was just like, what
31:55
Speaker 2: the hell did he just do? Especially after the judge
31:58
Speaker 2: Just warned him about this.
32:00
Speaker 8: Again, like, it is really scary knowing, again, that this
32:04
Speaker 8: is something that has happened. And, you know, the gunman
32:06
Speaker 8: who went to Judge Salas had a dossier on Justice Sotomayor.
32:09
Speaker 8: And by putting pictures of the judge's family and then, again,
32:14
Speaker 8: bringing the judge's family up in the speech, like, I
32:18
Speaker 8: am concerned about what it seems like, you know, they
32:22
Speaker 8: are emboldening people to do or test the limits of.
32:26
Speaker 1: The judge has power here, right? The judge can stop
32:28
Speaker 1: this in a number of ways if he is willing
32:31
Speaker 1: to go far enough.
32:32
Speaker 4: That's true.
32:33
Speaker 8: But as Kate was saying, the standard for imposing a
32:36
Speaker 8: gag order is high. The judge said he didn't want
32:39
Speaker 8: to have to do so. And I worry that this
32:43
Speaker 8: is a circumstance where wanting to treat this case differently
32:49
Speaker 8: because it involves a former president and trying to err
32:53
Speaker 8: on the side of giving this defendant the benefit of
32:58
Speaker 8: every procedure and every doubt will make it harder for
33:02
Speaker 8: the judge to impose a gag order, even though I
33:05
Speaker 8: think it is already showing signs that there would be
33:09
Speaker 8: very good reason to do so, at least in some capacity.
33:13
Speaker 6: Yeah, I mean, the context I was just gonna add is,
33:15
Speaker 6: you know, what Donald Trump Jr. tweeted was a Breitbart
33:18
Speaker 6: story about the judge's daughter who worked at a firm
33:21
Speaker 6: that worked for the Biden-Harris campaign. So If he's tweeting
33:25
Speaker 6: news articles, do you get into very complicated sort of
33:27
Speaker 6: First Amendment territory with a gag order?
33:31
Speaker 8: So I don't know whether like a news article in
33:32
Speaker 8: particular would, you know, raise additional First Amendment concerns in
33:37
Speaker 8: addition to whatever the concerns would be had Donald Trump Jr.
33:41
Speaker 8: just said, you know, the judge's daughter worked for a
33:43
Speaker 8: firm that worked for the Biden-Harris campaign. I don't know
33:45
Speaker 8: if that adds any additional speech concerns there. But again,
33:50
Speaker 8: the fact that it is now being repeated is.
33:54
Speaker 5: Within 24 hours. It's just really concerning.
33:56
Speaker 8: Yeah.
33:57
Speaker 7: And I think for all of the kind of articulated
33:59
Speaker 7: concern about overreach by the DA or, you know, novelty
34:02
Speaker 7: of legal theory, like you're not hearing broad cross-partisan condemnation
34:07
Speaker 7: of attacks on the judge, attacks on.
34:09
Speaker 4: Bragg and his family, right?
34:11
Speaker 7: Just, you know, rhetorical at this point, but obviously Bragg
34:13
Speaker 7: actually did receive a threatening letter, powder in an envelope.
34:17
Speaker 4: So this isn't just rhetoric.
34:18
Speaker 7: People are taking action directed at the players in this prosecution.
34:22
Speaker 7: And we are literally one day in in terms of
34:25
Speaker 7: the actual arraignment. So the stakes are really high. And
34:27
Speaker 7: whatever the judge could do, you would imagine that there
34:30
Speaker 7: would be broad condemnation of that kind of rhetoric. And
34:32
Speaker 7: I so far have not heard it.
34:34
Speaker 2: One day in and one indictment in with potentially many
34:38
Speaker 2: more to come. Both of you, thanks so much for joining.
34:41
Speaker 2: And I'm sure we'll be talking to the two of
34:44
Speaker 2: you and Melissa many times over the next year, next
34:48
Speaker 2: two years about Donald Trump investigations.
34:50
Speaker 3: The rest of our lives.
34:51
Speaker 2: And hopefully other stuff, too. Thanks for doing this tonight.
34:55
Speaker 4: Thanks, guys.
34:57
Speaker 2: Thanks to Leah Lippman and Kate Shaw for joining us.
34:59
Speaker 2: And we'll talk to you in the Thursday pod. Bye, everyone.
35:05
Speaker 2: Pod Save America is a Crooked Media production. The executive
35:08
Speaker 2: producer is Michael Martinez. Our senior producer is Andy Gardner-Bernstein.
35:12
Speaker 2: Our producers are Haley Muse and Olivia Martinez. It's mixed
35:15
Speaker 2: and edited by Andrew Chadwick. Kyle Seglin and Charlotte Landis
35:18
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Speaker 2: Sandy Gerard, Andy Taft, and Justine Howe for production support.
35:25
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