Latest / Politix / Alvin Bragg's Liberal Critics Are Wrong

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Alvin Bragg's Liberal Critics Are Wrong · Politix

• 0:00
  SPEAKER_00: How egregious would it have been for Bragg, confronted with this evidence about Donald Trump, to use his discretion not to seek charges, to say, we're not going to go there?
• 0:15
  SPEAKER_00: Hey, everyone.
• 0:36
  SPEAKER_00: a former assistant district attorney from the same office that charged Donald Trump in the hush money case.
• 0:42
  SPEAKER_00: Unlike many, if not most of the legal experts out there offering their opinions on this trial, Rebecca actually enforced the laws that Trump is charged with breaking.
• 0:50
  SPEAKER_00: So she speaks with real authority on the soundness of the case, including why so many of District Attorney Alvin Bragg's critics are wrong.
• 0:59
  SPEAKER_00: I hope you enjoyed the conversation.
• 1:00
  SPEAKER_00: And if you want to hear the whole thing, you can update your subscription to Paid at politics.fm.
• 1:11
  SPEAKER_00: Rebecca Roife, welcome to Politics.
• 1:14
  SPEAKER_01: Thanks for having me.
• 1:15
  SPEAKER_00: So just for background sake, when were you an ADA in New York?
• 1:19
  SPEAKER_01: I was an ADA in the early 2000s.
• 1:21
  SPEAKER_01: So 2000 to 2005, 2001 to 2005, around that time.
• 1:29
  SPEAKER_00: In the political discourse, especially in the Trump era,
• 1:34
  SPEAKER_00: People spend, I think, probably too much time thinking about the application of criminal law and whether this or that person maybe technically violated some obscure statute, and thus whether some righteous prosecutor will ride in on a white horse to save the republic.
• 1:51
  SPEAKER_00: To me, the Logan Act is the canonical example of this, where someone in Donald Trump's orbit will do something really shady.
• 2:00
  SPEAKER_00: And then critics will shout, that's private diplomacy.
• 2:03
  SPEAKER_00: It's illegal.
• 2:03
  SPEAKER_00: That violates the Logan Act.
• 2:05
  SPEAKER_00: And then all these lawyers will chime in to say, yeah, but good luck prosecuting that because that law has basically never been enforced.
• 2:12
  SPEAKER_00: So are the statutes at issue in the hush money case at all similar to that?
• 2:18
  SPEAKER_01: They really aren't.
• 2:19
  SPEAKER_01: And I should say, I spent my time in the DA's office in a bureau that was then called Investigation Division Central.
• 2:26
  SPEAKER_01: And Investigation Division Central was within the investigations unit, and it focused on white-collar corporate securities fraud.
• 2:34
  SPEAKER_01: There were many fraud units, and this fraud unit was known as being...
• 2:40
  SPEAKER_01: The sort of big Morgenthau frauds, we're trying to do what the feds won't do unit.
• 2:47
  SPEAKER_01: So I use that statute quite a lot and I'm familiar with it and I'm very familiar with the divide between federal prosecutors and state prosecutors and the way they approach white collar crime.
• 2:58
  SPEAKER_00: So what you're saying is that there's the legal profession and then there's people who worked in like as assistant district attorneys in New York who maybe touched on this area of law.
• 3:11
  SPEAKER_00: And then there's your division where you really honed in on it precise, like specifically.
• 3:15
  SPEAKER_01: Okay.
• 3:15
  SPEAKER_01: Right.
• 3:15
  SPEAKER_01: That's what I'm saying.
• 3:16
  SPEAKER_01: And to your broader point about expertise, I don't think
• 3:22
  SPEAKER_01: I don't think people who have used this statute have seen how it's used, have seen how court responded, are the only people who have any expertise that's worthwhile on this point.
• 3:32
  SPEAKER_01: But I do think we have a unique contribution.
• 3:34
  SPEAKER_01: So I really appreciate you having me on so that I can give a little background on New York and how we prosecute white collar crime there.
• 3:42
  SPEAKER_00: So in this role, you tried cases, I'm guessing, against people who violated both.
• 3:49
  SPEAKER_00: So there's the underlying law against creating fraudulent business records, right?
• 3:53
  SPEAKER_00: And that's the misdemeanor.
• 3:55
  SPEAKER_00: And then it can become a felony if that's done in service of advancing some other illegal activity.
• 4:01
  SPEAKER_00: Is that essentially what's...
• 4:03
  SPEAKER_00: That's right.
• 4:04
  SPEAKER_01: And I never prosecuted a misdemeanor case using the falsification of business record statute.
• 4:12
  SPEAKER_01: I know it's done within the office, but that would, if it had been used, would probably have been prosecuted in a different bureau than the one that I was in.
• 4:20
  SPEAKER_00: Is the idea then that if you happen to catch somebody engaged in the misdemeanor offense, but there's really no nexus to some other crime, like it's not part of some rolling effort to cover something up, that it's just as a matter of discretion, it's not worth going after?
• 4:38
  SPEAKER_00: Or is it just that usually people don't falsify business records unless there's some other shady thing they're trying to get away with?
• 4:46
  SPEAKER_01: Yeah, I mean, in order to...
• 4:49
  SPEAKER_01: have committed the misdemeanor, you have to falsify business records with the intent to defraud.
• 4:54
  SPEAKER_01: So I could imagine somebody falsifying business records with the intent to defraud without the intent to commit another crime.
• 5:01
  SPEAKER_01: It's possible even that if Donald Trump had, as his defense is somewhat seeming to suggest, falsified these records in order to cover up the sexual indiscretion, that that might be an intent to defraud and not an intent to commit another crime.
• 5:17
  SPEAKER_00: Right.
• 5:17
  SPEAKER_00: So if...
• 5:18
  SPEAKER_00: If there was no nexus to campaign finance law or tax law, if it was really just Donald Trump, famous guy, had an affair or multiple affairs, and he wanted to keep them quiet to stop his wife from finding out.
• 5:35
  SPEAKER_00: And so he falsified some business records to cover that up.
• 5:39
  SPEAKER_00: then you're like squarely in misdemeanor territory and maybe prosecutorial discretion would say, you know what, that's not what the law, that's not what the best use of our time is, is policing people's sexual indiscretions.
• 5:51
  SPEAKER_01: Right.
• 5:51
  SPEAKER_01: Certainly that wouldn't be a standalone prosecution.
• 5:54
  SPEAKER_01: You might add that in if there were some other things going on that, you know, for which it might be building a building block.
• 6:01
  SPEAKER_01: But I really doubt somebody would charge just that crime.
• 6:03
  SPEAKER_01: Maybe they would, but I don't.
• 6:05
  SPEAKER_00: Okay.
• 6:06
  SPEAKER_00: So you've, you've tried cases against people who, who you said, they're almost all in the felony realm.
• 6:11
  SPEAKER_00: They, they, they created these false business records and in to advance another crime.
• 6:17
  SPEAKER_00: Can you, can you, with whatever generality you're, you're comfortable with, can you like recall any, any of those cases that stand out in your mind as being, you know, kind of analogous or worth people hearing about?
• 6:29
  SPEAKER_01: I've thought about that, that question.
• 6:31
  SPEAKER_01: And I, I,
• 6:33
  SPEAKER_01: First of all, I'm an ethics professor, so I have to be really careful about that.
• 6:38
  SPEAKER_01: Prosecutors have duties of confidentiality just the same way all other lawyers do.
• 6:43
  SPEAKER_01: So, you know, so I wouldn't really want to talk specifically about any cases, but yeah.
• 6:50
  SPEAKER_01: But but yeah, I mean, there are some they're different.
• 6:53
  SPEAKER_01: Each of these cases is different in its own particular way.
• 6:57
  SPEAKER_01: There's one similarity, which I think is the reason why most people who've worked in the office just don't find this case particularly troubling is because the common thing is that New York has an interest.
• 7:09
  SPEAKER_01: It's this financial capital of the world, and it has an interest in making sure that their businesses are not undervalued.
• 7:19
  SPEAKER_01: keeping records that are intended to kind of fool regulators in the future.
• 7:24
  SPEAKER_01: And that's the idea is that business records aren't really personal.
• 7:28
  SPEAKER_01: And here in New York, we have tons of businesses.
• 7:31
  SPEAKER_01: And it's really important to New York that those businesses are basically honest in their recording of facts and money and where money coming in and money coming out.
• 7:41
  SPEAKER_01: And so that if there's some future regulator that's trying to figure out what happened, they can go to these records and have an honest trial.
• 7:49
  SPEAKER_01: And that's why it's a crime in the state and particularly in the city to falsify your business records with an intent to pull the wool over the eyes of those future regulators.
• 8:02
  SPEAKER_01: So all of the cases that I did under the statute had that common aspect that just makes this feel run of the mill.
• 8:10
  SPEAKER_00: And, you know, there's like a family resemblance that I'm picking up on between the reason prosecutors take these kinds of violations seriously and why Letitia James went after Donald Trump civilly for financial fraud.
• 8:27
  SPEAKER_00: Even though Trump can argue, well, everyone got their money back, there's an interest in making sure that
• 8:34
  SPEAKER_00: that business is conducted on the level.
• 8:36
  SPEAKER_00: And also there is some, probably some marginal harm when people are falsifying records to make themselves seem more financially sound.
• 8:46
  SPEAKER_00: It's creating some distortion of interest rates, whatever.
• 8:49
  SPEAKER_00: So it's not really victimless, but beyond the question of whether you can point to anyone who was harmed, there's just an interest in assuring that rules are followed, you know, if there are rules of the road, right?
• 8:59
  SPEAKER_00: Yeah.
• 9:00
  SPEAKER_01: Yeah, I think that's a really good point.
• 9:01
  SPEAKER_01: There are ways in which Manhattan prosecutors see themselves as the partners of regulators.
• 9:07
  SPEAKER_01: And whether that's appropriate or not is a totally different question, but we always have.
• 9:11
  SPEAKER_01: And so, you know, this is something that New Yorkers are presumably OK with, which is, you know, we we really there are certain crimes on the books.
• 9:21
  SPEAKER_01: I mean,
• 9:21
  SPEAKER_01: And there's some regular crimes that are kind of regulator-like crimes, you know, sort of negligent homicide is a regulator-like crime of trying to make people be more careful.
• 9:30
  SPEAKER_01: And that is what this kind of crime is.
• 9:32
  SPEAKER_01: It is sending a message to the public, particularly those people who are conducting business in New York.
• 9:38
  SPEAKER_01: Business is big, business is small, huge, international, whatever it is.
• 9:43
  SPEAKER_01: When you are in New York, you have this requirement, which is that
• 9:46
  SPEAKER_01: You have to be honest in your records.
• 9:49
  SPEAKER_01: And even if those records never leave your office, they have to be an honest reporting.
• 9:54
  SPEAKER_01: And what you particularly can't do is lie with an eye to some future regulator who wants to check something.
• 10:01
  SPEAKER_01: in a way that will make it difficult, impossible to do that.
• 10:06
  SPEAKER_01: And so that's the crime.
• 10:08
  SPEAKER_01: And I think you're right.
• 10:11
  SPEAKER_01: It's very similar to the case that... Or it's a similar role as the case that Letitia James brought.
• 10:20
  SPEAKER_01: And it's true that that's...
• 10:24
  SPEAKER_01: that the concern there is about the integrity of financial markets, and same here.
• 10:29
  SPEAKER_01: And New York considers that extremely important and a priority.
• 10:33
  SPEAKER_01: And so while they're very, very different cases, I think they do share that in common.
• 10:39
  SPEAKER_00: So you said that this law is enforced against people who work in big businesses and small businesses.
• 10:46
  SPEAKER_00: So maybe that gives me another way to get at the question I asked before, but without needing any specifics.
• 10:54
  SPEAKER_00: When you were enforcing this law, was it enforced against like VIPs, for lack of a better term?
• 11:01
  SPEAKER_01: Yeah.
• 11:03
  SPEAKER_00: Yeah.
• 11:03
  SPEAKER_00: It's not like it's not like it's not like Penny Annie, like street merchants over here.
• 11:08
  SPEAKER_00: And then Donald Trump is the only big, big fish.
• 11:10
  SPEAKER_00: Right.
• 11:11
  SPEAKER_01: Right.
• 11:11
  SPEAKER_01: And that I mean, and that is that that, you know, that's another historical role that I think has remained about the Manhattan district attorney's office that's passed from one district attorney to another, which is we are not we are the home of a vast array of sorry about that siren.
• 11:29
  SPEAKER_01: It's a
• 11:29
  SPEAKER_01: A vast array of... Authenticity.
• 11:32
  SPEAKER_00: This is like... Yes, exactly.
• 11:34
  SPEAKER_01: I arranged that.
• 11:35
  SPEAKER_01: So the vast array of people who do business in New York and that, you know, I think the famous quote is, you know, is something like...
• 11:46
  SPEAKER_01: we're keeping something crime in the streets and crime in the suites.
• 11:50
  SPEAKER_01: The point is that we don't treat people differently just because they are extremely big players.
• 11:57
  SPEAKER_01: And so, yes, the cases that I brought and that my unit brought and that other prosecutors within the office brought ranged from smaller type businessmen to the larger fish.
• 12:12
  SPEAKER_01: But particularly this statute was often used,
• 12:19
  SPEAKER_01: to prosecute people who are pretty powerful.
• 12:23
  SPEAKER_00: And there was a,
• 12:26
  SPEAKER_00: like an idea kind of floating in the ether around the time that the indictment got unsealed that the nexus that can step this up to a felony, well, it's just, you can't, that can't be a federal crime.
• 12:40
  SPEAKER_00: This is state law after all.
• 12:42
  SPEAKER_00: I take it that's not just, that's just factually wrong, right?
• 12:44
  SPEAKER_00: Like this law has been applied against people who were trying to advance something that was illegal federally.
• 12:51
  SPEAKER_01: Yeah, I'm not I'm not sure of the answer to that question.
• 12:54
  SPEAKER_01: And I mean, you know, I don't know if there's a specific precedent in which it was used for when their intent was to commit a federal crime.
• 13:01
  SPEAKER_01: To me, it just seems like the most logical explanation of the statute, because the way the statute has been interpreted by courts and by prosecutors is to that intent piece is extremely broad.
• 13:15
  SPEAKER_01: And it isn't restricted to just another state crime.
• 13:19
  SPEAKER_01: It could be any kind of crime.
• 13:21
  SPEAKER_01: It's not about the underlying crime, which we wouldn't have, obviously, jurisdiction to enforce federal law.
• 13:28
  SPEAKER_01: And that's not what this indictment is doing.
• 13:30
  SPEAKER_01: What it does is it defines intent, which a state can define intent in any way it wants to define intent.
• 13:39
  SPEAKER_01: It doesn't, to me, make sense that it would be restricted somehow not to use the
• 13:43
  SPEAKER_01: the things that have been written into federal law as a way of defining the intent that's criminalized.
• 13:48
  SPEAKER_01: So it's just very broad and it doesn't specify.
• 13:54
  SPEAKER_01: I mean, for instance, like the federal money laundering statute, in order to commit money laundering, you have to have basically, you know, move your money in a certain way with knowledge that it's the proceeds of the crime with intent to hide the, you know, and then it lists every single crime that would qualify.
• 14:11
  SPEAKER_01: And this is not a statute like that.
• 14:13
  SPEAKER_01: It says with intent to commit another crime.
• 14:15
  SPEAKER_01: And that's what it means, which is just don't use in New York.
• 14:18
  SPEAKER_01: You can't use our businesses to further any sort of crime.
• 14:24
  SPEAKER_01: And so I just to me, that piece seems much more unproblematic than it does to other people.
• 14:31
  SPEAKER_00: And I like just to clarify for listeners who aren't following this really granularly.
• 14:37
  SPEAKER_00: Alvin Bragg says the intent here was to advance, yes, federal campaign crimes, but also state campaign crimes and state tax law violations.
• 14:48
  SPEAKER_00: So there's nexus here to three things.
• 14:53
  SPEAKER_00: like intended crimes.
• 14:55
  SPEAKER_00: And even if people were concerned, well, what's the precedent for tying it to some intent to commit a federal crime?
• 15:01
  SPEAKER_00: It's sort of irrelevant because Bragg met that kind of artificial standard by showing an intent to break other state laws.
• 15:09
  SPEAKER_01: Right.
• 15:09
  SPEAKER_01: And it doesn't have to be, the intent can be to commit any one of those crimes.
• 15:14
  SPEAKER_01: And the way in which, this is something that I think hasn't quite gotten through, that the way in which one proves this
• 15:20
  SPEAKER_01: is often through circumstantial evidence.
• 15:23
  SPEAKER_01: As one often proves intent through circumstantial evidence, circumstantial evidence doesn't mean weak evidence.
• 15:29
  SPEAKER_01: It is often what we use to convict people.
• 15:31
  SPEAKER_01: You can create beyond a reasonable doubt with circumstantial evidence.
• 15:35
  SPEAKER_01: And so,
• 15:36
  SPEAKER_01: In a certain way, on a very simple level, and I'm not trying to suggest that this isn't a more complicated prosecution, but on a very simple level, it's like, well, why else was he doing like, I mean, it just doesn't like the other explanation, the explanation that like, this was to protect the reputation of his wife already, you know, knew all of this.
• 15:53
  SPEAKER_01: And, you know, all...
• 15:55
  SPEAKER_01: I mean, it just doesn't make any sense.
• 15:56
  SPEAKER_01: It doesn't make any sense with the timing.
• 15:58
  SPEAKER_01: It's like, obviously, he was trying to commit a crime.
• 16:00
  SPEAKER_01: So which one?
• 16:01
  SPEAKER_01: I don't know.
• 16:02
  SPEAKER_01: Pick one of them.
• 16:02
  SPEAKER_00: It doesn't matter.
• 16:03
  SPEAKER_01: And in a way, it's like the way that you prosecute these cases, it's OK to prosecute it that way.
• 16:09
  SPEAKER_01: And I understand why federal prosecutors who proceed in a different way with parallel statutes that have a much greater requirement, pleading requirement and a requirement for what you prove don't quite see it that way.
• 16:21
  SPEAKER_01: But this is the way it's prosecuted in New York.
• 16:23
  SPEAKER_01: And and
• 16:24
  SPEAKER_01: you know, whether or not there's a published opinion, which there isn't, I don't think, saying, you know, this is absolutely fine and this is the way we interpret our statute.
• 16:34
  SPEAKER_01: There's a sort of understanding of the law in New York that's different because it's, you know, it's local community, it's just the way local law works.
• 16:41
  SPEAKER_01: And I'm not saying a court couldn't come and change its mind.
• 16:43
  SPEAKER_01: It's just, this is, it's almost like there's been a tacit approval of this way of approaching cases because the office has approached cases this way in the past.
• 16:53
  SPEAKER_00: Is there at least something unusual in the fact that Trump's motives here stemmed from his candidacy and I guess from licentiousness rather than from the needs of the Trump organization specifically?
• 17:10
  SPEAKER_00: Or in your career, did you see other business people violating this law in order to
• 17:22
  SPEAKER_00: Like cover up things that we might think of as personal or political or.
• 17:26
  SPEAKER_01: I will say it's a common.
• 17:29
  SPEAKER_01: It's not.
• 17:30
  SPEAKER_01: I shouldn't say common.
• 17:31
  SPEAKER_01: It's not.
• 17:32
  SPEAKER_01: I have seen a defense.
• 17:33
  SPEAKER_01: I have seen people try to defend this type of conduct by suggesting that it was for purely political.
• 17:39
  SPEAKER_01: personal reasons and often the purely personal reasons that one might claim for trying to cover something up is some kind of lurid affair that you didn't want your wife to know about.
• 17:49
  SPEAKER_01: So the fact that these two things are linked in some way is not,
• 17:55
  SPEAKER_01: unprecedented.
• 17:56
  SPEAKER_01: Of course, it's you know, I mean, there's the unprecedented aspects of this case that you're prosecuting a former president, that it was a campaign, you know, all of those things.
• 18:06
  SPEAKER_01: There are no identical cases to that, but that's going to be true no matter what.
• 18:09
  SPEAKER_01: So it's more just that the type of case itself is not it is not unprecedented.
• 18:15
  SPEAKER_00: Yeah.
• 18:15
  SPEAKER_00: And I mean, like that in 2016, there happened to be two presidential candidates, both from New York.
• 18:20
  SPEAKER_00: If Hillary Clinton had a business and was falsifying business records and
• 18:24
  SPEAKER_00: advance her campaign, she'd be indictable essentially under the same statute.
• 18:31
  SPEAKER_00: It just happens that she didn't do it.
• 18:33
  SPEAKER_01: Right.
• 18:33
  SPEAKER_01: And I mean, you know, I suppose one thing to say is, you know, Trump, it's entirely possible that nobody would have ever noticed this.
• 18:42
  SPEAKER_01: In fact, I think likely that nobody would have ever noticed this.
• 18:45
  SPEAKER_01: I think one thing that one can say about, you know, how he's been treated differently is that
• 18:50
  SPEAKER_01: When you make yourself into such a public figure, people are looking through things with a fine tooth comb.
• 18:55
  SPEAKER_01: I don't think there's anything inappropriate about that.
• 18:57
  SPEAKER_01: But had this evidence been found about, you know, some run of the mill, boring, not exciting businessman, it would have been charged.
• 19:06
  SPEAKER_01: There's no chance in the world that a prosecutor's office would find this and be like, oh, well, no big deal.
• 19:12
  SPEAKER_01: You know, this is this is the kind of thing that would get prosecuted if a regular person committed it.
• 19:18
  SPEAKER_01: And that's honestly, that's what I think the strength of this case is from a rule of law perspective, because if you want to say no one is above the law, it's harder to say when the kind of conduct is totally unique.
• 19:31
  SPEAKER_01: For instance, the January 6th case.
• 19:34
  SPEAKER_01: I mean, I don't know what you would compare that to.
• 19:36
  SPEAKER_01: And I, you know, as opposed to this, where it's just he was been he's been doing business in New York for a really, really long time.
• 19:42
  SPEAKER_01: And I think it's sort of, you know, it hasn't been a secret that he has run up very close to and sometimes crossed lines in that world.
• 19:52
  SPEAKER_01: And, you know, it's
• 19:54
  SPEAKER_01: If this is the case that they can put together, then this is the case that they can put together.
• 19:57
  SPEAKER_01: It's not, you know, it doesn't seem problematic to prosecute him for something that other people would be prosecuted for if they did it.
• 20:07
  SPEAKER_00: I'm really glad that you said that somebody with a lower profile who did essentially the exact same thing, they would be charged.
• 20:14
  SPEAKER_00: Because I kind of want to turn this around and place the onus on Bragg's critics a little bit.
• 20:20
  SPEAKER_00: How egregious would it have been for Bragg, confronted with this evidence about Donald Trump, to use his discretion not to seek charges, to say, we're not going to go there?
• 20:31
  SPEAKER_01: Well, you know, I think that's a really interesting question.
• 20:34
  SPEAKER_01: And I've often thought, you know,
• 20:37
  SPEAKER_01: what choice would I make had I been, you know, in Alf and Bragg's position?
• 20:41
  SPEAKER_01: And, you know, I don't know the answer to that.
• 20:44
  SPEAKER_01: So could you exercise your discretion?
• 20:46
  SPEAKER_01: I mean, basically what a prosecutor does is there are two steps.
• 20:49
  SPEAKER_01: First, you say, like, do I have the proof?
• 20:52
  SPEAKER_01: And, you know, what's the evidence?
• 20:54
  SPEAKER_01: Can I meet all of the elements of the crime?
• 20:56
  SPEAKER_01: Can I prove it beyond a reasonable doubt?
• 20:58
  SPEAKER_01: Once you've said yes to that, you don't necessarily go forward.
• 21:01
  SPEAKER_01: And the reason you don't necessarily go forward is because
• 21:05
  SPEAKER_01: prosecutors are, you know, we have limited resources.
• 21:08
  SPEAKER_01: So we're always making calls.
• 21:09
  SPEAKER_01: Is it in the public interest to bring this case or not?
• 21:12
  SPEAKER_01: And so in my mind, there is another level to that question.
• 21:19
  SPEAKER_01: Should I bring it is another question.
• 21:21
  SPEAKER_01: And it's a question that involves what's in the public interest.
• 21:24
  SPEAKER_01: And
• 21:24
  SPEAKER_01: You know, I don't know how you weigh, you know, holding somebody responsible for what they've done versus, you know, there is going to be a lot of pushback and a lot of critics and a lot of questioning about the criminal justice system that might result.
• 21:39
  SPEAKER_01: But I think at the first level step, this case is extremely strong.
• 21:44
  SPEAKER_01: And so, you know, he's perfectly within his discretion to choose to prosecute it.
• 21:50
  SPEAKER_00: This is a good place to take a little break.
• 21:52
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