Latest / Uncomfortable Conversations with Josh Szeps / Elie Honig: Will Trump Go To Jail?

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Elie Honig: Will Trump Go To Jail? · Uncomfortable Conversations with Josh Szeps

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G'day humans, welcome to the Safe Space for Dangerous Ideas, and as this election year
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gets underway in the United States, here's an uncomfortable question for you, is one of the
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presidential candidates, a criminal? And if he is a criminal, will the courts find him
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as such and sentence him as such? This year, if not, when could they, when might they,
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what exactly is the shape of Donald Trump's legal woes? Is it all a partisan witch hunt as
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he portrays it? Or is there there there, or are some of the cases ones in which there's
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there there, and others in which it probably is a little bit of a witch hunt? I want to
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want to untie all this, I want to unpack it, I want to understand what's going to happen
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this year, and whether Donald Trump will ever go to jail, what if he loses the election?
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Like then what happens? Could Joe Biden commute his sentence? Like let's actually play out,
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let's understand what he's being accused of, and play out what might be about to happen,
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because we're in uncharted waters here. I mean this is supremely weird to be going into an
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election where one of the candidates faces four criminal charges. There's no one better in
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the world to understand all this stuff than Ellie Honeig. Ellie was a mob prosecutor. He fought
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the Mafia in New York for years. From 2004 to 2012, he was the assistant United States attorney
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at the Southern District of New York, which is that the court in New York, I mean be part of the
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justice system that most addresses itself to the crimes of the mob because they're in that neck
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of the woods, and he's specifically prosecuted organized crime. He became the co-chief of the
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organized crime unit at the Southern District of New York, and he convicted over 100 members
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of the American Mafia. He now is a legal analyst for CNN, so he's faced all over the place,
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the senior legal analyst at CNN since 2018. So he brings this depth of experience that he has
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about how organized crime works and about how the heads of crime rings are able to evade the justice
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system when so many people under them for prey to it. And he can sort of superimpose that understanding
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onto what's going on in Trump, Trump a stand. It's fascinating. I really enjoyed his book
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about all of this and about the relationship between organized crime and the way that rich and
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powerful people who are outside of organized crime, whether that's you regard that as being Donald
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Trump or whether you regard it as being Harvey Weinstein or Jeffrey Epstein or whatever. How they
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managed to evade capture for so long, the book is called Untouchable. Please enjoy this conversation
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with the one I know only. Ellie Honey.
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Hi Australia, an Australian relevant thing to raise with you. Oh good. Well tell me about it now.
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We'll cut we'll cut into this whenever whenever. Oh you want to start? Yeah yeah let's start.
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So I've never been to Australia. Yeah. I do have a couple friends there. But I'm right in the
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middle of reading the true history of the Kelly gang about Kelly, which I read 20 years ago,
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but have no all I remember was it was great. And so I rereading it now and it's so Australian,
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right? Have you ever read it? Never read it. No. Do you want to tell American listeners what who
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Ned Kelly is? So Ned Kelly is sort of just a gangster basically. I mean, not to minimize him,
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but it's set in the 1870s I guess a little bit after the American Civil War. There's a couple
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references to how there was the prior decade. There was the American Civil War. And it's in what I
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guess you would call I don't know the Bush or the range of Australia when it was sort of wild and
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unsettled and it's kind of wild west, but Australian and the thing that there's so much about it. I mean,
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it's a great story. It's a but it's based on the actual diaries written by Ned Kelly. They found
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you know, old weather pieces of parchment or whatever they wrote on and it's written in his way.
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It's fiction, but it's based on his diaries and it's told it's written. I forget the name of the
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author, but it's genius. It's written in the from the mouth of Ned Kelly. And so it's not
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grammatically correct and there's no punctuation, but it doesn't I would hate a book like that if you
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told me that, but it doesn't throw you off at all. It's riveting. It's like so I'm like mentally
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in this Australian frame of mind. So your 19th century Australian criminal history knowledge is
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probably better than my own. I should have been peppering you with questions about outback
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bush rangers in the 1800s. Listen, there are some parallels. I mean, the way that seriously,
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like we'll talk about it, but there are scenes where the cops are trying to flip people against
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each other and all that. Yeah, crazy. I've just noticed if people are watching the YouTube
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video instead of the, instead of listening to the podcast, the shade of my face is approximately
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the same as a beetroot or maybe a tomato, maybe an overripe tomato. Yeah, I'm only, you just got
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some. I'm only slightly sunburned, but there's something about here. Let me see if this lights.
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I think this light has different shades on it. Oh, look, now I look like a blue. I got a new
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fancy light. Oh, now I look like more of a beat. Okay, now you look, yeah. And now I look for the record.
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I haven't seen the sun in four months. Yeah. This is one of the liabilities of living in
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the Northeast of the United States. Although I was just over there and there was no snow at Christmas,
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and I was very disappointed that we get Christmas, a white Christmas. Like I'm starting to wonder whether
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it even snows here anymore because it used to snow three, four times every winter when I was a kid.
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Now it's like every four years we get three inches. And it's changed. I think it's changed. I
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know it changed. And it's like that's the worst because if you're going to bother being cold,
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then I at least want it to be fun. Agreed. You know, I want it to be snowy. If either it be minus
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15 Celsius, then you know, yeah, this is five degrees and just as easily and slushy.
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So let's talk organized crime and let's talk Donald Trump. Your book is an interesting snapshot
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from a time and a snap from a time when Donald Trump hadn't been charged with anything,
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and your frustration kind of oozes through every page, which I assume has changed now.
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Can we just start with like if you were a betting man, what are the odds at the moment that Donald
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Trump actually ends up seeing jail time for something? So I'll answer your odds question a second.
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You know, when we wrote when I wrote this book, I say we because I had researchers and you know,
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I think of it as a team, but when we wrote this book, it had the way when you read a book,
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it has to lock at a certain point, and then it publishes four months later,
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so because they got to send it off to the actual printer. And so we had to lock this so old school,
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isn't it? Yeah, yeah. I love that. I have to have to shred the trees and then they do. I mean,
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it's crazy tree. And by the way, it's you would think that every one of the major publishers,
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and I wrote this book for Harper Collins, which is one of the three major publishers,
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you would think they all have their own printing presses, not at all. There's like three printing
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presses in the whole country and they all have to like reserve space and rent them. But so we
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locked this book in late 2022, and it published in early January, 2023. As you say, at a point
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when Trump had not been charged, and yes, my frustration is oozing in there, but I do say in the book,
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by the time you fair reader are holding this book, he probably will have been charged probably
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more than once or something that I sort of forecast. I will say not everything I forecast in the
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book comes true, but a hell of a lot of it has come true. As we stand right now, Trump has four
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criminal indictments against him here in the United States, two federal, two state. It looks
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okay, let me, let me sort of take some things off the table. He will not be physically locked up
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before the election in November. That is not going to, I know it's a little bit of a fantasy
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that's out there, because in order for that to happen, he asked to not just be convicted,
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which could well happen, sentenced to prison, which could well happen. But generally speaking,
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judges here are going to give a person in his scenario first time offender what we call bail
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pending appeal, meaning he doesn't even if he sentenced to X years in prison, he doesn't begin
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serving that sense until after he's exhausted all of his appeals, which will take, you know, a year,
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two years. So even if we have this dramatic moment in this spring or summer where some jury says
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we find the defendant Donald Trump guilty, that will matter a lot. But he's not going to get,
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he's not going to be behind bars in November of this year when the election happens. So let's
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take that one off the table. How many trials are actually going to happen? You know, there's a whole
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game that we can get into this if you want, but a whole game of sort of dominoes and delay tactics
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by Trump and speeding up tactics by the prosecutors. But it looks like one or two will happen before
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the election. The most important one is the jacks with a federal case involving January six,
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which is sort of being fought about the trial date right now. Then there's the hush money payments
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case, which might happen as well. But that's I think by far the least serious and the least likely to
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have a major impact on the election. Then there's the classified documents case, which indications
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seem to be that it's likely to move out past the trial. And then there's the Georgia Fulton County
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DA's case, which also has to do with stealing the 2020 election. That one is not happening before
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the election. That one you can put off to the side. The DA has asked for a trial, not seriously,
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a trial date in August, which is which ain't happening. There's not going to be a criminal trial
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in August, September, October, November, December, when we have an election in November. So
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right. That one for now is just for show. So I think we'll see one or two of those other ones.
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And just to clarify, you said that there are two federal cases and two state cases.
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Right. President of the United States can quash either of the federal cases or
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can pardon anyone convicted by either of those federal cases, but not the state ones.
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So yes. So one of the fears that some people have, and I think I understand this, is if Trump
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wins the election, which right now is, you know, a 50-50 proposition. If that happens, in my view,
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all four of these cases are dead. The president can, A, forget about pardoning. That's controversial.
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We don't actually know if a president can pardon himself. It's never been tried. It's not
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squarely addressed. But A, I think he will pardon himself. And if he does, by the way,
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who's going to challenge it? Not his own DOJ, right? Remember, DOJ is under the executive
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branch, the federal executive branch. And B, he will just order his, just to pause on that for a
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moment. Could, uh, could someone else find standing to challenge that? No. I mean, that's a great
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question. Someone will certainly try. I don't know who other than DOJ would have challenge, would
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have standing to say, what about presidential presidential candidate? I don't think that's
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enough for standing. I mean, what would be the basis of, I've been harmed, right? That's
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basically what you have to show to, it's hard and it's a legally cognizable way. That's interesting.
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Let me see. Well, I mean, why couldn't, yeah, yeah, couldn't a potential Republican rival
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claim that the fact that the person is still in the White House gives them an incumbent edge
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that they wouldn't have if they were behind bars? But there's a practical problem here, which is
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Trump wouldn't be able to pardon himself until he already wins and retakes office. I see. So then
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we're into 2025. He's in his second term anyway. Wait, why don't he pardon himself in his first
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term? Well, his first term is already over. He's not in office. You can only pardon yourself while
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you're in office. He did not do that during his first term. There's the part self pardon scenario.
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He wins again in November, retakes office in January 2025 and then does it. Um, the other thing
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he'll do that's more direct though is he'll just order his new DOJ. If he, if he retakes the White House
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in January 2025, he'll say, okay, Attorney General dismiss this or he'll make it a condition of the
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job. So the two federal cases will die if that happens. As for the two state cases, there's kind of
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a way you can parse some of the old constitutional findings that well, maybe they're different,
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but I mean, he can't pardon himself. But there's no practical way that the federal courts and the
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federal government will permit eight state and county level prosecutor to try and potentially
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imprison the sitting president. I mean, that's no different than if some county prosecutor and
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name your county, um, Mississippi right now indicted Joe Biden and said, I want to try him,
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you know, while he's in office and potentially lock him up, that just because of principles of
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federalism, that the federal government sort of reigns supreme over the state. There's no way
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that that'll happen. So I think best case scenario, it'll be good to see some constitutional
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conservatives who say that they're so committed to states, rights and federalism, uh,
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and defend the right of the state. There's been a bit of flipping their own thing. Yeah,
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there's been a bit of flipping both ways as to who's in first states, rights and who's for
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federal rights. But the best case scenario for the two state cases, if Trump wins is they get put
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on hold until he's out of office in 2029, uh, by which point he's going to be God knows 82 years old
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and these cases will be ancient, who knows where we'll be at that point. Can you pause the case
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like that? So that's another interesting issue, right? Because the statute of limitations, well,
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but the statute of limitations based on when you indict, um, what Trump would say, let's say
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at 2029, we're really getting it. This is great. Trump makes all the hypotheticals come true.
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Let's say he wins. It's 2029 and the Manhattan D.A. says, I still want to try him. He's out of
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office now. I think Trump would say my, my basic good faith rights to a speedy trial have now
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lapsed and it's been too long. And I think the prosecutors will go, yeah, but not through our fault.
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I mean, you're, you're the one who dodged trial. You're the one who then hid behind the presidency.
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I just don't see a realistic scenario where we're having a trial of a host second term 82 year old
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Donald Trump in 2029. And ultimately, if that had to be decided in the courts, then it would go
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to the Supreme Court and presumably, Supreme Court would side with him one might imagine.
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It's fascinating stuff. I feel like I want to get on to organize crime, but give it where press for
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time. I also just want to want people who might be confused by the four cases that you just
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threw down on the table. Yeah. To be able to pass those. Yeah. Um, should we go in order of, like
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severity slash, yeah, let's do this ability. Yeah. I know, by the way, I think it's all the time.
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Anytime I'm sure you do. Yeah. And I started talking about these ago. Now this is the federal,
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yes, there's no way in normal human, which I'm not can keep this straight. Um, four criminal
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diamonds, two of them are federal, brought by DOJ, the special counsel, Jack Smith. One of them
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relates to January six, although it's really more about the pre-general special counsel. Just
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briefly, what's the special counsel? So special counsel is when the attorney general of the United
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States, let me let me take it back as that. Our president nominates the attorney general who then
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has to be approved by our Senate. So Joe Biden nominated the current attorney general,
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Merrick Garland, who was a longtime judge and a former prosecutor before that, um, back at the
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beginning of his term. And then in certain, uh, extraordinary circumstances where you may have
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a conflict of interest, the attorney general has the power to appoint a special counsel. So
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Merrick Garland, about a year and a half into his term, appointed Jack Smith as special counsel,
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the Robert Mueller was special counsel. Also, if people remember that, there's been a lot of
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someone who's going to undertake a specific investigation that the justice department wants to
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be able to keep someone at arm's length or keep the illusion of political impartiality around it.
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Right on the head. Exactly. It's somebody who has a specific mission and the purpose is to create
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that little bit of arm's length distance from the DOJ. So special counsel, Jack Smith has two
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indictments. One of them relates to the effort to steal the 2020 election, sometimes called
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called the January six indictment, although it really doesn't have to do with, he doesn't charge
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Trump with inciting the, uh, riot or anything like that. He charges them with basically a several
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month long conspiracy to try to steal the election through fraud. So that's one, the most serious.
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I think that one's based in Washington, DC. There's a second federal case brought by Jack Smith for
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the classified documents at Mar-a-Lago and obstruction of justice. That one's in federal court,
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but in Florida, where by the way, Trump is popular. He's very unpopular in DC with the populace
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and he's very popular in Florida. Then we have two state-level cases. One of them was brought
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by the mid-Hatton, which, you know, New York City, District Attorney for falsifying records of
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hush money payments that Trump made to Stormy Daniels, the adult film actress, in 2016. It's already
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eight years old, this conduct. Um, the Fed, I report on this actually in the book, the Fed's past on
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this. The DOJ looked at this and they just decided the proof wasn't good enough, the conduct wasn't
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recent enough, the conduct wasn't serious enough. I lay out the inside reasons for it,
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which we can agree or disagree with. And then the final case comes out of Fulton County,
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which is Atlanta, Georgia, which also charges Trump, which trying to steal the 2020 election.
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I'm not, it doesn't really add much. It's very, if you were to graph the facts alleged by that case
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in Jack Smith's case, they would overlap substantially. So there's a fair debate here about whether that
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state level charge is necessary or appropriate or whether it serves some other
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purpose beyond what Jack Smith's case is served. Could it? What would that purpose be?
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Well, I think people say, um, Trump cannot pardon himself from a state case, right?
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And but he can pardon himself from Jack Smith's case, which is true, but it runs into the same
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problems I said before. If Trump becomes president again, he pardon himself from Jack Smith's case,
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and he probably is not triable by Fony Willis by by our county DA while he's in a rise.
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Right. Other people tried to say, well, the DA alleges different, or they were before we saw
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the indictment, there are people say, Oh, no, she's going to alleged a different case and then we
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saw the indictment. It's the exact same thing. I mean, it's packaged in the language of state
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charges rather than federal, but the conduct is almost entirely overlapping. And the conduct to
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clarify for people is not conduct. If the conduct is not the fact that Trump said, I don't think
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that I think that there are shenanigans here. I don't think Joe Biden is the legitimate winner.
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We need to defend our country and other things that might have incited people to protest and to
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violently attack the Capitol. The conduct that is being alleged that's illegal is what?
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So great point. Jack Smith could have charged insurrection trying to overthrow the government.
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He did not. He could have charged inciting a riot, rallying up the crowd and be there will be wild
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and we're going to go down to the Capitol and show strength. He did not. And I think wisely,
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those would have been really difficult because Trump also said whether one believes he believed
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that or not, he probably didn't, but he did say be patriotic and peaceful or something like that.
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What Jack Smith is charged up with is really a conspiracy and a fraud to steal the election by
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falsely claiming that he won when he knew he didn't by pressuring state local congressional
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officials to throw votes his way when he knew he had lost by pressuring the vice president to
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throw out votes for Biden when he knew or should have known the vice president had no such power.
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So it's really like I said, it's a misnomer to call it the January 6 indictment. It's really the
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not as catchy, but you know, the election day up through January 5th indictment. In fact,
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the actual, Jack Smith's actual indictment only mentions the actual physical attack on the Capitol.
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It says Trump tried to leverage it. It doesn't say Trump caused it. It says Trump tried to leverage
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the uncertainty that resulted from that attack in order to, you know, accomplish his mission
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of stealing the election. Right. And Trump's defenders and presumably Trump's defense say this is
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basically criminalizing speech. I mean, you're basically making it impossible for a wronged
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candidate to raise questions about the legitimacy of an election by using the tools of the state
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to punish dissent as there are First Amendment rights in the United States to say whatever you want
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and you're allowed to go out and say what you want. What's wrong with that defense?
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I think that's absolutely one of the two defenses and you stated it really well, Josh.
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I think the combat, you know, we have very broad First Amendment rights. You're allowed to lie.
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I mean, you know, you can you can be sued for defamation at a certain point, but the First Amendment
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protects horrible speech. It protects in many circumstances lies. It protects in many circumstances
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dangerous language. We set the bar very high in the United States for where speech can become a crime
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in particular. And the type of speech that is entitled to the highest level protection is political
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speech. So he will argue what you just said. This is political speech. I'm entitled to contest an
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election. I'm entitled. I'm even allowed to lie. I can get behind a microphone and say I want
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and there's massive fraud. I mean, it's not great, but it's not a crime. He would argue. It's
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protected by the First Amendment. And Jackson Smith takes this on in the very first page of his
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indictment. He says, yes, there is First Amendment rights, but he argues that what Trump did sort of
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crossed the line into unprotected speech. I mean, not all speeches protect. If I tell you, Josh,
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hey, I'd like you to murder or so and so and I buried a gun outside your house to use that. That's
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all I'm doing is talking, but it makes me part of the crime. So so the prosecutor, then this is
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what the jury will have to resolve. The other defense Trump's going to make is something along the
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lines of, look, I had advisors telling me I had lost the election, right? We all we saw it publicly.
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His attorney general said it's over. There's no fraud. Other responsible important people told
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them you lost, but I also had other advisors telling me I had not lost and there was fraud and I
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needed to fight it. Rudy Giuliani, Sydney Powell. Now a sound minded person will go, how could you
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listen to Rudy and Sydney Powell, their maniacs? You know, people even call them team crazy versus
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team normal. I'm not so I'm not so I mean, I agree. I agree. It's wild to listen to Rudy Giuliani
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or Sydney Powell. I agree that the reality was Trump. I'm sure was just trying to cherry pick whatever
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advice he wanted to hear, but you get into the problem. He'll say, look, presidents get competing
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advice from their advisors all day long every day. And if you're going to make it a crime for him,
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he doesn't always have to listen to the stodgiest voice in the room or the best educated voice in
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the room. Sometimes he can, you know, he's entitled to listen to whatever and he's got different
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groups of advisors telling him different things. He chose to trust group B rather than group A.
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Maybe history will judge him harshly for that, but is it a crime? I'm articulating his defense
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here. But I think again, the comeback to that is he knew what he was doing. He was just looking
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for whoever would facilitate his lies and his fraud. And why do you need to have known what he was
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doing? I'm a little bit hazy on that second defense because if Rudy Giuliani says it's my
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professional legal opinion that you should kill so and so and Trump goes and does it then doesn't
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change the fact that he had legal advice doesn't change the fact that the conspiracy or the murder
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or the plot to steal the election or whatever that underlying allegation is was legal. So there are
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limits we call as the advice of counsel defense or Trump might try to make some sort of second
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cousin of that. But there are limits including the advice can't be patently ridiculous that any
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normal human would realize is ridiculous. You know, like if your lawyers has go ahead and kill that
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person, no sane minded person would say, okay, but if you're getting into our canna of was the
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election still and do we what rights do you have? Can you contest it? It's more arguable. But
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and to your question, why does it matter if Trump knew he lost because you have to prove criminal
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intent? I mean, what if Trump genuinely thought he want? What if he did actually? He did not, but
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what if he did actually win? What is conduct here have crossed the line that's a criminal? I don't
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know. Again, he did not win. I believe he did not. I believe he knew he did not win. I believe he
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was putting on fronts and covers here, but I'm just sort of playing these arguments out for you.
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I'm still unclear. So it does make a material. You do need a men's rare. So to speak like a guilty
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man need the person to be aware that they're committing a crime in order for it to be a crime in
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this case. You need to know that we what you're doing is wrong and unlawful. You don't need to show
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the person knew, well, the statute code number, whenever I'm probably violating that now. But I
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mean, you know, there are various ways you can prove men's rare, meaning a guilty mind. Some of
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the things Trump did arguably, it doesn't matter whether he thought he won or not. Like if you read
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his conversation, his famous conversation with the Georgia Secretary of State, Brad Rathensburg,
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where he says, I need you to find 11,780 votes. If you read that as he's asking this guy to fabricate
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votes, it doesn't matter if Trump thought he won or lost that that's guilty mind. Anyway, there's
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some debate about whether that's actually what Trump was trying to say there we can, which we can
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get to if you want. But for a lot of the other stuff, pressuring Mike Pence, if Trump really
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believed that he lost the election and that there was fraud and that some of the states should be
24:57
thrown out, is it criminal for him to say to the vice president, hey, we have been for, I think
25:02
some of those were wrong. We're fraud and you shouldn't count them when it got me, you know,
25:10
I'm not saying this is a great defense, but this is you do have to prove some wrongful state of
25:14
mind. If you knew he lost any pressure, Mike Pence, you clearly have the wrongful state of mind.
25:18
Okay, that's interesting. That strikes me as
25:22
somewhat bizarre in a way, like because the whole point of having a procedural process of
25:28
relying on systems and norms and rules and processes rather than just outcomes is that you follow
25:36
the processes like they say, you know, you should be able to run a democracy or a liberal democracy
25:41
a million times over through a million elections and some of them might be unjust, some of them
25:45
might even go the wrong way. But everyone follows the processes and the rules because over the long
25:49
run, that's how you end up with the better result. You don't have individuals saying, well,
25:53
I think the rules, you know, are actually wrong here. So I want to circumvent it because I think
25:57
in actual fact, I should have won for this reason or that that just gets too complicated. That's why
26:02
they're sending fathers right a constitution. Everyone obeys the constitution. They follow the
26:05
processes and everyone like to me, that is the bottom line regardless of whether it yields the
26:11
correct result in every instance. You're exactly right. And I think one of the prosecution's point
26:16
is you're allowed to contest an election. You can go to court. You can demand recounts,
26:20
depending on the state, what the vote count is. And Trump did all those things. And even after
26:24
they failed, he continued to take these outside the process, questions. I think what Trump will argue
26:30
is no, he was within the process. I mean, yes, he filed lawsuits and all that. You know, you can
26:36
lean on the vice, look, there were people leaning on the vice president to do both things. There were
26:39
people leaning on him to throw out the votes and people leaning on him to not throw out the votes.
26:44
I think the people leaning on him to not throw out the votes were legally correct. But does that
26:47
make the other side criminal or were they engaging in a sort of aggressive, maybe even frivolous
26:53
reading of the law? Same thing with like submitting the fake electors. You could say, well,
26:57
that was a fraud. They were trying to deceive. But what they're saying, what they'll say is,
27:01
no, we were just submitting them just in case we happened to win some of the court cases. We
27:07
needed to have that piece of paper on the books. So, but this will be just, I find this fake
27:11
electors thing. So that is, I mean, that is probably the most damning wrinkle in all this to me,
27:18
just to my uneducated ear. They tried to recruit people from states that might have gone either way.
27:25
They recruited these people. And who were these people in order to do what?
27:29
So in seven contested states that Trump lost closely, what they did, the way it's supposed to work
27:34
is when a state states basically get to run and certify their own elections. And normally,
27:39
when a state's done, I live here in New Jersey, the governor, whoever it is, the secretary's
27:42
state will fill out this official paperwork. You know, each state has a certain number of electoral
27:46
votes. I think I should know this. I think in Jersey, we have 16. And it'll just say, we the people
27:51
of New Jersey, our votes go over our 16 votes go to Canada at A or B. And here's the name of the
27:56
electors, which is just ceremonial people who will vote for one side or the other. And they will
28:01
officially go to Washington, DC goes to the city. And they will vote on behalf of the people of that
28:06
state. Exactly. What Trump's people tried to do is in seven states, they submitted forms, which
28:11
used basically the same language that I just told you. But instead of saying Joe Biden won our state,
28:15
which he did, it says Donald Trump won our state. And here's the people who are going to be casting
28:20
the electoral votes, however many number the state has for Donald Trump. Now on the face of it,
28:25
I agree. I think it's one of the strongest pieces of evidence prosecutors have. This is it's false.
28:31
Donald Trump did not win those states. The comeback has been well, but again, those were contingency
28:36
plans. Those were we were putting in those paperwork. People have actually done this before in
28:40
different scenarios, but said in case what this one's contested state of Arizona. And in case it
28:46
turns out that Trump wins, these are going to be the electors. The problem is the forms don't say
28:50
that to have actually two of the seven states do say that do say these are just contingent forms in
28:54
case we win. But the other five do not say that. So the fake electric scheme is in a way.
29:01
In some ways, I think the strongest piece of evidence that prosecutors have here, but the other
29:07
here's the other thing. You have to truck you have to as a prosecutor tie Donald Trump to it.
29:12
So it's pretty clear, you know, the people who signed it were involved. This pretty clear
29:15
Rudy was involved. You're going to need someone to say and Trump was involved and blessed this,
29:21
which I assume they have. But it's not enough to just show this happened. And it was for Trump's
29:26
benefit. You have to show Trump was involved somehow. And did these electors was is there a date by
29:32
which these forms need to have been submitted or signed that would give credence or credibility
29:38
to the claim that they would contingencies that they couldn't have been so after the so there's
29:43
a date is our elections happen in early November. There's a date called the safe harbor date. It's
29:47
December 14th. I want to say somewhere around the middle of December. And by then basically all
29:52
disputes have to be resolved. So they have to. So I think where you're getting at judges right that
29:56
some of these certificates were submitted after all the lawsuits were done and over with after
30:02
any real hope for the Trump people should have been over. So therefore it was really an attempt
30:07
at fraud. Right. And are those certificates signed by the governor of the state? Who do they have
30:12
to be signed by? So they're not signed by the governor. They're signed by the electors
30:16
in themselves. And then they're submitted to the state itself like the wherever the sector is.
30:20
The electors are just people, aren't they? They're normal. They're normal people. They're like
30:24
low level. Yeah, they're basically like people active in the party or low level. But they've been
30:29
charged in some of the cases. I mean, the elected the people in Georgia, for example, again,
30:33
I forget that I think Georgia has 16 electoral votes. For some reason that I don't fully understand
30:38
the DA chose to charge. I think it's three of the 16 people. There are other states that have
30:43
charged all their electors with crimes. I'm blanking on which ones I forget maybe Wisconsin or
30:48
Michigan or something. But a couple of the states have charged their electors with state level
30:52
fraud crimes. Other states have not. So who has the job of determining who's an electorate? Who's
30:57
not? Is it the vice president? I think it's not the county apparatus of a state. It's kind of
31:02
like an honorary thing. So like the Democrat again to use New Jersey, the Democratic Party of New
31:07
Jersey will say, if Biden wins these 16 people and it's like mayors and council people and maybe
31:13
donors, it's an honor or anything. We'll say these 16 people are going to be our electors. If we
31:18
win in the Republican Party of New Jersey, we'll say, and if Trump wins, it'll be these 16 donors
31:23
and bigwigs. One of the most parties sent in and certificates claiming victory. Is there a
31:29
system of what happens or is it? The state has to certify the state officials. The state secretary
31:34
of state goes, this is the one we're stamping. And that's what happened with all seven states. The
31:38
state, whether it was, by the way, some of these states were run by Republicans, but they said,
31:41
yeah, no, Democrats won by the one. Trump's team tried to like get tricky and set their forms
31:46
directly into the US Senate without going through the state without getting them sent by the state.
31:50
They say, oh, no, actually, we want counties. So in a way, we were lucky that there weren't
31:54
Trump hack loyalists in the secretary of state offices in some of these states, because you could
32:00
imagine a scenario in which a Republican governor and Republican secretary of state
32:05
signed the wrong certificate. I mean, just in order to get the Republican into power, even if they're
32:09
voters voted for the Democrat. For sure. And I'll add to that. I mean, imagine if Mike Pence,
32:15
the vice president at the time, had done what Trump was pressing to do. I mean, Trump was putting
32:18
on a heavy, heavy blitz on him, or the line threatening him, that when you get up on January
32:23
six, this is why January six is January six. That's when Congress gathers to officially count. It's
32:29
for it's always been up until 2021. It was always just a ceremony. And you know, not meaningless,
32:35
but not a, it's not a court trial. It's and you just read the names. Mike Pence refused,
32:41
but Trump wanted Pence to say when he got to the first contest to stay Arizona on down the line,
32:46
Pennsylvania, to say, I reject as because the vice president has the ceremonial role of basically
32:50
just reading it out. And Pence refused. But what, what if I mean, what are the great what ifs?
32:55
What if Pence said, okay. And then he stood up on January six in the well of Congress. And he said,
33:01
okay, next up is Arizona. And I rejected these votes because of fraud. And I send it back.
33:08
We would have, I mean, people used the overuse. I think the phrase constitutional crisis. I think
33:12
a concert, I define a constitutional crisis as we don't know what happens next because as many
33:18
bad, crazy, strange things that happen, we can always go, okay, what happens next is you appealed
33:22
of the Supreme Court or we wouldn't know what happened there. I mean, maybe you go to, I don't
33:25
know, do you go to Supreme Court? Can they even, is there even, it boggles the mind. And so Mike
33:30
Pence and there was others who refused to go along with this plan, who many of whom have now become
33:34
witnesses in the January six committee and probably in these, in these criminal trials too.
33:40
It's amazing, isn't it? Yeah.
33:43
I'm just trying to think that through. The Supreme Court needs a legal argument.
33:48
Someone needs to have the standing to bring the case and the case needs to have legal coherence.
33:54
It's not good enough to say, yeah, but they're breaking the rules. Right. You need to point to
33:59
the rule that they're breaking. Yes, Supreme Court is not just like a complaint desk, you know, like
34:04
it's what you're right. You would need, I mean, I think my best guess is we would have, we
34:09
collectively would have figured out some way to challenge what Pence had done in the Supreme Court,
34:13
if he did that. I think some state would have sued some other state. That's one of the ways actually
34:17
that the Supreme Court can actually take a case immediately as like state versus state,
34:22
saying we've been to. But you've only got two weeks between January 6th and
34:25
inaugurations of what happened, like how quickly did I act? Yeah, I mean, they'd have to, you know,
34:31
judges, judges and justices connect as quick as they want. I mean, with Bush versus Gore,
34:34
they acted in a matter of days. They act like, you know, they like to stand on ceremony and take
34:38
their merry time. And sometimes people can't believe how long appeals take. But if that had happened,
34:44
AI suspect even, even this court with six conservatives would have said no way.
34:49
Again, we're guessing here. And I guess they would have done it pretty quickly. But then the
34:52
other side would have flipped out. So I don't know. The Supreme Court just still, I mean, you know,
34:55
would have been. Yeah, yeah. Yeah. So then so that's the scroll of the case. We don't know. I think
34:59
we need to go through all of them. I just want to touch on Stormy Daniels. And just to put a
35:04
button on the free speech thing, if any listeners are somewhat persuaded by the idea that, you know,
35:09
all he did was talk. He didn't really do anything other than say words. And that's projected
35:14
under the First Amendment. I did hear a lawyer say to me, there are lots of crimes that are just
35:18
talking. I mean, you know, putting a asking someone to kill your wife is just, yeah, I just gave
35:24
you an example. If I said, do you know, go go do that. Yeah, I like it. Or if I said to you,
35:28
fraud is is, you know, people go to jail for cheating on their taxes. That's just speech. That's
35:33
if I said to you, Josh, you're going to be, you're going to have to pay me 10% of the proceeds from
35:38
your podcast from now on. Or else, I'm going to send someone to break your knees on doors talking.
35:43
But that's not protected. Right. I mean, the First Amendment is broad, but where speech itself
35:48
sort of constitutes action, and it's not protected necessarily. Yeah, got it. And then the weakest
35:53
of the cases, the stormy Daniels one, I've never, I've never, I've never understood, I've never
35:57
understood this case. I think I always, this is very disheartened when it became the first case
36:02
that was brought against him. Yeah, I still don't really understand why it's a, here's my problem
36:06
with it. So I think people understand the contours of this, right? He paid a harsh money to
36:10
shut up a hooker who he slept with. And because it was during the election campaign, it's considered
36:15
to be an illegal campaign donation, and he didn't register it. And it was, so that's him donating
36:21
to his campaign, or it being interpreted as him donating to his campaign. But my confusion here
36:28
is that it's hard to say that he wouldn't have done it had he not been running. Right, right.
36:34
So because he just wants to protect his reputation. So can, does the act of running for president
36:39
deprive me of the right to do things that would burnish my reputation? So that's exactly what he
36:44
would say. So first of all, I should point out stormy Daniels is not, you said hooker, she's not a hooker.
36:48
She's a, she's a, she's an adult film actress. My apologies. No, I love her. Yeah, I mean, you know,
36:55
so, um, yeah, so Trump's team pays her off to silence her, which is not a crime, by the way,
37:00
it's, it happens quite a bit in this country. It's called catching kills sometimes where wealthy
37:05
people pay for stories, pay for the exclusive rights, the stories about them and kill them. Um,
37:09
and a lot of this, meaning don't run them. And a lot of this has only come to light the last
37:14
10 years or so. A lot of this came to light through, uh, reporting of people like Ronan Farrow and
37:18
others on the way that, um, Harvey Weinstein and other sexual predators paid off people, um, with
37:23
non disclosure agreements and all that. Okay. That's not the crime. The crime, now you're, you're right,
37:29
Josh, that part of the crime is, well, it was really a campaign expenditure. It would have been
37:34
over the limits that you're allowed to spend. It should have been reported as such. That's the
37:37
crime. But the, but the fed, that would have been the federal crime. And I report in the book about
37:41
how DOJ very carefully looked at that and agree or disagree. They decided not to charge it because
37:47
they, as you said, there's two, they part of their reason, and I got the inside story here is,
37:52
they said, first of all, they have a bad history of doing this. They have a very low success rate.
37:56
They brought it somewhat similar case against John Edwards, who had been a senator. He ran for
38:00
vice president and they lost that case because it's hard to prove because. He ran for president.
38:04
President, right. He was, but sorry, wait up. Yeah. He ran, he ran for president. Then he was the VP
38:10
candidate with candidates. Yes. We carry carry was right. So he was a VP candidate. And he was a
38:16
US senator from North America. Yeah. But as you say, so many things that any candidate does
38:24
is designed to promote his candidacy. And can you, can you really
38:29
log it all as a campaign expenditure? What if, what if, what if, you know, what if he gets a haircut?
38:33
It's made, it's meant to make him look better. I mean, it's not a perfect analogy,
38:37
but there's a lot of gray area there. What New York state prosecutors did, the way they've charged
38:42
him is falsification of business records. So what they did is they got their hands on the Trump
38:47
organizations internal records. And on the internal records, it doesn't say, you know,
38:52
hush money to porn star. It doesn't say, it doesn't say, you know, catch and kill money. It says
39:00
legal fees legal fees. And so they argue that's false. They weren't legal fees. And so they were
39:05
falsely booked, which on its own is a very low level crime in New York City. It's a misdemeanor
39:10
in New York under New York state law, meaning a very minor crime. Nobody goes to prison for a misdemeanor.
39:15
The way it's charged is as a misdemeanor. It only bumps up to a felony, the more serious that,
39:21
but the lowest level, there's five layers of felony, a the most serious down through E. This would
39:25
be an E felony if it violates campaign finance laws, as you say. And the problems with this case
39:32
are there's a lot of problems. One, the conduct is now eight years old. That's a long time. And
39:38
take it from me, juries are care less about things that happened longer ago. Be it's
39:44
arguable whether Trump is responsible for the crime is the way these payments were booked. And
39:51
if you listen, which if you listen to Michael Cohen, who's going to be that's this is point C,
39:56
the start witness here is Michael Cohen who has all sorts of credibility issues. And I should say,
40:01
I'm friendly with Michael Cohen. I like him. We talk. We, you know, we've gotten together socially,
40:05
but he definitely has credibility issues. I mean, he's pled guilty to perjury. He's pled guilty
40:09
to fraud. He's been caught. He despises Donald Trump. He openly hates him. The problem is,
40:15
Michael Cohen, at one point, made a tape recording of Donald Trump when he was representing Trump.
40:21
And Trump didn't know it. And in it, Trump says something. They're talking about the stormy Daniels
40:24
payments. And Trump says, how are we going to pair with cash? And Michael Cohen says, no, no, no, no.
40:30
Me and Alan Weisselberg. Don't worry. Me and Alan Weisselberg are going to take care of it. Weisselberg
40:34
was the CFO. So the defense goes, folks, who's responsible for booking these payments?
40:40
The lawyer, here you have Michael Cohen, their star witness saying me, the lawyer and the CFO,
40:44
we're going to handle how they're booked. You don't worry. You're ahead about it, Mr. Trump.
40:49
So it's a look, but I should say Trump is hated in New York, in New York County. I mean,
40:55
generalizing here, but he got something like 10% or 12% of the vote in 2020, which is astonishing.
41:02
So he's going to have a very unfavorable jury pool here, but the whole point of a legal system
41:08
is that people who are hated and loathe and reviled are upheld and given fair trials and
41:13
presumed innocent. I mean, there's something about this case that to me just think if any
41:19
Trump hater flips the script in their head and imagines that this was being done to their
41:24
favorite candidate, this kind of personality, like filtering through the details. Exactly.
41:31
And then we can up the crime because there's this other underlying thing, which is that you wanted
41:36
to protect your reputation during a campaign, like anyone who has run a business or who has,
41:42
you know, been in a soush with the IRS or the tax office knows that there's probably something
41:48
online, 472 B, they filled in incorrectly that they had the kind of people hunting them that
41:55
Donald Trump does. They could they could probably get in trouble. So I think this was a mistake
42:01
in my opinion, just from a PR perspective to bring it feeds into the narrative of the Trump narrative
42:06
of a witch hunt. If you talk to democratic operatives, people who've worked democratic campaigns,
42:11
democratic white houses on Capitol over Democrats, they hate this case. Like some of them saying
42:16
publicly on air, like they just think it's overreach. It plays into Trump's narratives.
42:22
Like you were just saying that people are just going, you know, rifling through all his stuff
42:25
looking for anything. The fact that it was the first one that dropped, it was the first of the
42:30
four was not ideal. And if this is the first and perhaps only case that goes to trial, I mean,
42:37
I think there's a legitimate question about whether it will even hurt him politically if he gets
42:41
convicted. Like there was polling recently where Trump was ahead of Biden by two to five points in,
42:48
I think it's five different swing states, but they asked then they said, if Trump gets convicted
42:54
in sentence, would that flip your vote? And it flipped a few points, but a few points could be
42:58
decisive here. Went from Trump winning, beating Biden by two to five points to Biden, beating
43:03
Trump by two to five points. But I don't think the pollsters and I don't think the respondents were
43:07
thinking of the hush money case. I think they were thinking of the Jack Smith cases, which are
43:11
much more than the January six case and the class of I documents case. I think if you specifically
43:18
say, would it conviction in the hush money case make a difference? I think you have very few people
43:23
who say, would say, I would have voted for him, but not if he's convicted in the hush money case.
43:27
You do have a handful, small, but potentially very important handful, who I think say I would
43:31
vote for him, but not if he's convicted of January six. And look, as a political journalist myself,
43:36
I'm very skeptical about polls like that because I don't think they capture what people's response
43:40
will be to watching the news every day or going through their social media feeds and seeing
43:45
testimony from people, seeing like to me, what would be damaging to Trump would be relentless
43:51
days of damning testimony about what was going on in December and January prior to January six.
43:57
They would be let the like the conviction is somewhat moot in a way in terms of the PR battle.
44:03
If you spend September and October talking about his criminal enterprises, then you bring to the
44:09
forefront of swing voters' minds, the threat of having another four years of this asshole tinkering
44:16
around with things. And maybe that just ramps up, that turns up the volume a little bit on that
44:20
characteristic of his. That's interesting because one of the odd features of this is we know so much
44:25
and a lot of the credit goes to the congressional January six committee, which held its hearings,
44:30
not this past summer or 2022. I mean, there's a, I forget how many pages, 800 page report.
44:37
There's very little that we don't know right now. Now, sure prosecutors may find some new
44:42
angles or new nuggets, but who's the lead who's doing the knowing? I mean, you and I know this
44:49
voters in elections in America are by definition decided by people who haven't been paying attention
44:53
to this. That's why they're swinging voters because they don't have strong opinions one way or
44:56
another. They don't follow the follow things very closely. They'll start following things in
45:00
September and right, you know, whatever is swirling around in the news, then we'll nudge them
45:05
one way or another. And important to keep in mind, if Trump's on a criminal trial, he has to be
45:09
in the courtroom. So he will be physically removed from the campaign to your point. I think it's
45:14
very unlikely that we see any of these trials carrying on in September, October with the November
45:18
because it's a rule to varying extents written or unwritten understood or whatever that you don't
45:25
do things as a prosecutor too close to an election that are likely to influence that election. Now,
45:30
that rule's been compromised at times famously by James Comey when he made two big announcements
45:35
that were harmful to Hillary Clinton on the eve of the 2016 like people have said he lost the
45:39
election for Hillary Clinton, not not my area to judge, but I don't see any realistic way a judge
45:46
keeps Trump on trial through September and October, the hard right general election and can
45:51
finds him to to a courtroom in whether it's Manhattan or DC or Florida. So I sort of when you're
45:57
looking at the calendar, I think the latest you can realistically start one of these trials,
46:02
they're all going to take two to three months each is July. I think once you get past July,
46:06
you're into no man's land. Right. Interesting. Okay. You you've said a couple of times during this
46:13
chat that things like well, Trump didn't incite violence on January 6 because he included words
46:20
like be peaceful or he didn't necessarily know what I'm articulating that side. Yeah. Yeah,
46:25
he didn't necessarily know that the you know, the harsh money payments were going out of the
46:29
business because you know, that was Michael Cohen's decision. One of the fascinating things in
46:33
your book, I think is just to draw the line between this behavior and behavior that you grew up
46:39
seeing in the mob. I mean, it not grew up, but like when you were cutting you when you were a child,
46:45
my dad, when you were cutting your teeth, I mean, as a, you know, as a prosecutor,
46:52
then then this pattern of behavior that the mob told us through some of the characteristics
46:59
that it made people to persistently break the law without breaking the law. And I was I was the
47:04
I spend most of my time in the Southern District of New York as a mafia prosecutor. I was chief
47:09
of organized crime unit at the end, deputy or co-chief, I should say with another person. Um,
47:14
and I'm I always get a little reluctant to say Trump's like a mob boss because it's almost become
47:20
cliche, but man so many times and I'm not basing this on the movies like I'm basing this on actual
47:26
and I in the book, I draw parallels between actual cases I prosecuted and Trump's conduct and
47:31
man, oh man, does he understand the mobsters playbook? I mean, you just gave a couple examples,
47:35
always distance yourself, always build in that layer of insulation, never do the dirty work
47:40
yourself in the mob case, it might be on the books, it might be committing violence, but always
47:47
have somebody else do it. And then have that person be somebody who if they flip on you,
47:51
there a sleaze bag, you can accuse them of horrible thing, Michael, not say Michael, come
47:55
as a sleaze bag, but that'll be the accusation. Um, say it with I have a chapter called say it
48:00
without saying it, how really savvy criminals and bosses, and I give all these examples from my
48:07
experience, know how to give their orders and instructions without saying, okay, Michael Cohen,
48:12
I want you to falsify my books, they just go, you know, do it in a way that I'll be okay,
48:17
or whatever, you know, do it in a way, you know, my Trump's really good at throwing in those
48:20
little, oh no, do it legal, do it legal, just, but just, you know, you know, like Michael Cohen
48:25
has said this, he said Trump never told us to inflate his assets, we probably knew what the
48:28
marching orders are. I quote the movie Goodfellas is a great scene that's very true to life where
48:34
they're at the barbecue and the boss, Paulie is sitting there and someone comes over and whispers
48:40
in his ear and Paulie just nods at him and the voiceover from Ray Leota goes, for a guy who
48:45
moved all day, Paulie didn't talk to six people, um, because he doesn't need to say anything,
48:49
just nod you, you know, if you ever listened to real gangsters on if we ever, you know, we wire
48:55
tap them sometimes the phones, we had a wire tap in a restaurant, they ate at, they're a little,
48:59
they're more guarded on the phone than they are in person, but they'll never go, hey, did that guy
49:04
go pick up the shake down money from the butcher? Did that guy beat the crap out of this guy?
49:08
They'll go, hey, did you see the guy about that thing? Uh huh, it's okay. All right, like, you know,
49:13
so Trump really knows how to speak in that ambiguous way. Um, I'll tell you another one that I
49:19
point out in the book that's really come true is everyone knows that rich people pay for these
49:24
legal dreamteens from cells. We all remember OJ and Alan Dershowitz and all this. Um,
49:29
what real savvy bosses do is they pay for lawyers for other people around them, not illegal.
49:34
In fact, I criticize DOJ for loosening their policies and allowing that more and more over the
49:39
years, but it makes it very difficult, right? Um, and usually, unless and until that person can
49:44
break away from the, in this case, Trump funded lawyer, only then can they come clean. I mean,
49:48
look at Cassidy Hutchinson. She's talked about this publicly, and again, I know her personally, too.
49:53
Cassidy Hutchinson was a white house staffer. She worked in the chief of staff's office,
49:58
but she was in the West Wing throughout the build up to January six and January six.
50:02
I'll January six itself. She then testified very dramatically in Congress. Um, and Cassidy has said
50:09
when this all happened, she was given a Trump paid for lawyer. That's undisputed. And she didn't
50:15
feel like she could tell the full truth at that point. She was too scared. She didn't want
50:18
one word to get back to him. She didn't want to get punished. She didn't want to, she couldn't
50:22
pay for her own lawyer. And so she withheld certain intentionally, certain details from Congress,
50:28
only when she managed through various difficult, uh, machinations to break away and get her own
50:34
lawyer. Did she go back to the committee and say, okay, look, now I can tell you the full truth.
50:38
Now I have this lawyer who really represents me, but I saw this all the time in the mob cases.
50:42
I mean, bosses pay for everyone's lawyers. And I tell the case story in the book about a case where
50:48
we had a low-ish mid to low-ish level guy who wanted to flip, but he couldn't because he had a mob
50:53
paid for lawyer. So he, I won't give away the whole thing, but he sent his girlfriend to deliver a
50:58
secret message to the FBI. And I had to go to the judge and do this like secret proceeding to get
51:03
him what we call shadow council. It's, it's legal. But we basically had the court secretly a point,
51:08
a different guy to go in and talk to him. And that lawyer came out and went, yep, you're right. He
51:12
wants to flip and then we like pulled him out of jail and put him in the safe. You have to smuggle
51:15
him out through a tunnel or something. We did. There's a whole system of tunnels. It's a good
51:20
section of the book. I mean, and it was eye-opening to me, really eye-opening, that you say that there's
51:25
essentially a cabal of lawyers who are on the pay of the mob. Yes. And who are appointed, you know,
51:33
and the poor, lowly, you know, criminals who work for the mob don't have any other option and
51:39
don't necessarily know that the lawyer is working against their interests. Well, they, the lawyer,
51:44
the mob, they know what's up. Like they know, oh, yeah, they know who's, they know they're not
51:48
paying, right? They know they're paying. But I think they maybe naive about the extent to which
51:53
the lawyer is betraying them. I mean, you make the lawyer may not even present them with the
51:57
option that there's a deal. You know, there may be a, there may be a deal that could be struck
52:02
that the lawyer instructs them not to take. Yeah. Because the mob bosses obviously don't want
52:06
them to flip. But they know they're all clear that the lawyer is necessarily working against their
52:12
interests. Are they? In my experience, they're, they're, they get it. They understand if they're
52:16
around the mob, they're told, hey, this guy is, you know, John, you know, John Jones is going to be
52:22
your lawyer making up that name. If there's anyone named John Jones, I their apologize. They know
52:25
what's up. And they know. And in fact, in our cases, I would do cases where we charged 20, 24,
52:30
27 defendants at once, all gangsters. We knew and they knew that nobody was allowed to plead
52:36
unless the boss signed off. So even if we made a sweetheart, forget about cooperating, I just
52:40
mean pleading, get out of the case. That wasn't allowed until the end. If the boss said you're
52:46
pleading, you're pleading, and they didn't want to, they're pleading, then it's, this is not a
52:49
consensual situation. And is that because they have an ethic of being loyal to the team and not
52:57
ratting out or is it because they're terrified of getting whacked if they betray the mob? Right.
53:03
Right. There's a well established playbook when you have a case, nobody does anything on lesson
53:08
until it's approved by the boss. All the lawyers will speak for the boss. The boss will speak
53:14
through those lawyers or whoever the highest ranking guy is. Doesn't the lawyer have a legal and
53:18
ethical obligation to represent the client, not the boss? Yes. So I actually talk about this in
53:24
the book. There were a certain brand of lawyers who I'll not call mob lawyers because they get
53:29
offended. But I'll tell you one example. There's a guy who I know is still around. I actually
53:34
talked to him recently, who's been trying criminal defense cases for at least 50, let's say,
53:41
let's be careful there are 40 years now. He's never once brought in a client to cooperate. Now,
53:47
a lot of people cooperate in the federal system. I mean, and it's almost always the safest option.
53:52
Right. If you were to do a bar graph of outcomes, people who go to trial usually fare the worst,
53:56
people who just plead without cooperating do better and people who cooperate get the best
54:01
deals. How is it possible? This guy's represented literally thousands of people over 40 years and
54:05
nobody's ever cooperated with him. And some of these guys, this guy in particular says,
54:10
probably I don't do rats. That's this is his language because they and I think this is a breach
54:16
of their ethical duty. You're not representing your if you are not even presenting your client with
54:20
one of three options, the best of three options often because you want to protect your own standing
54:26
or own ability to keep getting mob cases. I think it's absolutely an ethical violation. And I say
54:30
it in the book, I say, nobody seems to want everyone to do anything about it. Judges or prosecutors
54:34
or whatever. I mean, look, I'm not I never I never had a fit about when I was a prosecutor,
54:40
I never went to a judge and was like, Oh, judge, because they're just going to go judge. Look,
54:44
I do what's best for my lawyer, my client in any individual case and I assess the circumstances
54:49
and they can't force me to cooperate anybody. It's just like an unprovable case. But after 40 years
54:54
of no cooperators, that's mathematically impossible. I'm surprised that there's not a polite
54:58
society of lawyers that they get booted out of. It's really well, they they kind of do. I mean,
55:04
I mean, they're not, you know, you're known as a mob, but it's always funny because we know who
55:08
the I say in the book, if we were going to arrest 22 guys the next day, I would be able to predict
55:13
who 19 of those lawyers would be, I was like, I won't name the names, but if you look at it,
55:17
pull up any mile docket sheets, you'll see the same defense names over and over and over.
55:22
Because they have their stable of approved lawyers and they're known as the funny thing is like
55:28
most of those guys get very offended if you call them mob lawyers. I did an episode of my podcast
55:32
with one of a Murray Richmond who represented a boss in a murder case I did. And I say, like,
55:37
are you offended by the phrase mob lawyers? I was like, no, it's like why would I afford it?
55:42
It's a fair descriptor of precisely what I do. I know you have to go and we establish that if
55:48
Trump wins the election, then probably all of these legal problems go away. If Trump loses the
55:52
election, just put on your prognostic head for us, what happens? Great question. And not
55:57
enough people are thinking about this. So let's say he's been tried once or twice, right before
56:02
the election. Those cases will proceed to sentencing and then he'll get to appeal. And then look,
56:06
there's a possibility, not likely. Well, I don't know. Maybe it's likely. I'm sure, tell me what you
56:12
think, Josh, do you think if Trump loses the election and we get to and then Trump goes through
56:18
one or more of these trials and he gets convicted and gets sentenced to prison and it stands up on
56:22
appeal. And here we are. And let's say 20, uh, 27, right where we're right in the middle of a
56:28
second term Joe Biden's presidency and Joe Biden is 84 and Donald Trump is 80. And now there's
56:35
nothing left between Donald Trump and prison. Do you think Joe Biden would not pardon him but
56:41
commute his sentence, meaning not wiping out your conviction, but I'm going to eliminate your
56:45
sentence and you're going to do home probation or whatever, home, environment, probation,
56:48
probation. I'm interested in what you think because people vary on this. That is fascinating.
56:52
What do you think? Fascinating. You see it thought experiment. I can absolutely see it and I
56:56
don't know. I really don't know. I don't know. I can totally see it happen either way. It depends
57:02
what the climate of American politics is like. It depends how much, it depends how good artificial
57:09
intelligence is. It's swamping us with misinformation and how divided we are. If the left,
57:15
but if the left continues to be as, if the left gets more exercised by social justice mobs,
57:25
I don't think it'll be possible for him to do that. And if the left calms down and swings back
57:31
towards a more Bernie Sanders economic justice agenda, then I think he could get away with being
57:37
the bigger guy and and do interesting, but it's really hard to know. Well, I will tell you,
57:42
I asked that. I've asked that question of a lot of people. And there's, you know, I think a
57:46
lot of people can see it either way, but I will tell you the people who I know who have worked with
57:50
and for Joe Biden are almost uniformly on the, yeah, I can see that happening side. Yeah, I can
57:55
certainly see it happening. I can certainly see it happening. Yeah. Yeah. Yeah. Um,
57:59
the idea of, yeah. But I was going to say there's another question of if Trump loses the election
58:05
and let's say he's been tried once. How many of these trials are we actually going to
58:10
see the fruition? Like let's say he gets tried in DC for January 6th, Jack Smith gets convicted,
58:15
loses the election, gets sentenced to whatever. Then after, you know, now we're into 2025, he's lost
58:22
and he's been convicted. And now we do the other Jack Smith case, the Mar-a-Lago case, and he gets
58:26
convicted or not again, are we going to really do all four of these like if two or three of them
58:33
or after and he's already been convicted like there comes a point where prosecutors might say,
58:39
okay, enough's enough. He's lost the election. He lost 2024. His political career is over.
58:45
He's been convicted once or twice and we don't see a need to have a third and a fourth trial and
58:51
put everyone through this and yet again and again. Right. Right. I don't know. Yeah.
58:57
And the sentencing, just on the question of the commutation of the Biden commutation,
59:01
that depends on the sentence being actual jail time. What options would the judge have?
59:09
I mean, presumably there's house arrest and things like that so he doesn't have to go into a
59:13
federal penitentiary. So there's two levels. So the entity that sets the sentence is the judge.
59:19
In either of the two federal cases or the Fulton County case, I think if he's convicted,
59:25
we're looking at very likely sentence of some imprisonment. The New York case, even if he's
59:29
convicted, I don't think I think we're looking at probation or something like that. What if there's
59:34
going to be a commutation, the president, let's say Biden, I mean, that's who it would be if it's not
59:40
Trump, has the power to say, okay, you were sentenced to let's say three years in prison federally.
59:46
I'm going to reduce that to no prison, but just probation or no prison, but just home confinement
59:52
or something. So he can take it down to wherever you want. He could say rather than three years,
59:56
I'm going to make you do six months. So he has a lot of latitude if he is getting into
1:00:01
commutation. Part of it would be wiping the whole thing out. I don't think of pardons likely,
1:00:04
but I think if there's going to be anything, it'll be a commutation.
1:00:07
Okay, there's a whole lot of conversation about whether the presidential pardon and commutation
1:00:11
power is just because I don't think it is. I think the justice system should be the justice system
1:00:15
and the executive branch should deal with the executive issues. And never the twang shall meet,
1:00:20
but I know you've got to go. Great to talk to you. Thanks for your insights.
1:00:22
Thank you. Great to talk to you.