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as smart. Folks your eyes of the top

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of the list. Will

1:00

never confronted these questions before, and so

1:02

it's giving us a whole body of

1:05

law on issues of immunity and privilege.

1:07

And what's Article Three Of The Fourteenth

1:09

Amendment? Means when he's are licensed. Just never

1:12

came up before. Hello

1:22

and welcome to the President's Day

1:24

edition of the Five Thirty Politics

1:26

podcast. I'm Gail and drink. What

1:28

are the legal limits of presidential

1:30

behavior? It's a question that is

1:33

central to the Twenty Twenty Four

1:35

election. As for President Trump faces

1:37

ninety one criminal charges across four

1:39

different cases. There's another question of

1:41

how Presidents are to behave, which

1:43

is more up to the voters

1:45

than the courts. But the to

1:47

aren't totally separate. Poll after poll

1:49

has shown that while Americans favor

1:51

Trump over Biden today where Trump

1:54

convicted of a felony. They. Would

1:56

prefer Biden. So today we're gonna

1:58

review Or Trump's legal like ability

2:00

stance. and just so we're all

2:02

on the same page. The criminal

2:04

cases that were talking about our

2:06

one The Manhattan Kids sometimes called

2:08

the Hush Money case where Trump

2:10

is accused of falsifying business documents

2:12

to cover up payments to Stormy

2:14

Daniels, the Federal Classified Documents case

2:16

in which Trump is accused of

2:18

mishandling sensitive government documents and obstructing

2:20

government's efforts to recover them. Three.

2:23

Is the Federal January Six case

2:25

where Trump is accused of attempting

2:27

to overturn the Twenty Twenty Election

2:29

and stay in power despite losing,

2:31

And then last week for the

2:33

George Election case in which Trump

2:35

is being tried for racketeering, conspiracy

2:38

to overturn Georges Twenty Twenty Election

2:40

results. Trump is also facing civil

2:42

charges in New York that could

2:44

prove costly if not Carswell, and

2:46

there have been some significant developments

2:48

in these cases. Last week, the

2:50

judge in the New York Hush

2:52

Money case that. A trial date for

2:54

March twenty Fifth, meaning it's now expected to

2:56

be the first of these cases. Clyde. Also.

2:59

Last week Fulton County Da's funny well

3:01

as testified in an effort by descendants

3:03

to get her removed from the case

3:05

and the investments dropped based on accusations

3:08

that she had a conflict of interest

3:10

in her relationship with the special prosecutor

3:12

on the case and as we tape

3:14

this podcast right now to be totally

3:16

transparent more recording this podcast or me

3:18

Friday afternoon but we are waiting for

3:20

a decisions in Trump's several fraud case

3:22

in New York's in which is accused

3:25

of completing his network here with me

3:27

to discuss it on earth A lot.

3:29

To Cover is Jessica Roth professor of Law at

3:31

Cardozo Law School. She was also previously a Federal

3:33

Prosecutor in New York. Wasn't a podcast. Thanks for

3:36

having me! Okay, sorry you like caffeinated. Are you

3:38

ready to go? We got a lot to

3:40

cover. the right? There is a lot to cover.

3:42

So I want to start with a big question

3:44

and I will get into the nitty gritty hearing

3:47

All of that. In. Your estimation.

3:50

Which. Case poses the biggest legal risk

3:52

to fennel President Trump to. The.

3:54

Most serious case in my opinion is the

3:56

one brought by Special Counsel Jax Mess. With

3:58

respect to the January. Riot and

4:00

the efforts preceding that I to

4:03

overturn the Eight Twenty Twenty election

4:05

results. So the allegations are extremely

4:07

serious in that case, and he's

4:09

charged with accounts of conspiring with

4:11

others. To obstruct the official proceeding and

4:13

congress which was the certification of the

4:15

a result. Of the electoral college and

4:17

conspiring with others deprived people essentially of

4:19

the counting of their votes. Those are

4:21

incredibly serious charges, and I have confidence

4:24

into the Special counsel and his team

4:26

in their ability to actually carry their

4:28

burden of proof with respect to those

4:30

charges, and to do it in a

4:32

streamlined way given in parts that they've

4:35

only. Charged former President Trump in

4:37

that case and. Part.

4:39

Of the reason that Trump has claimed

4:41

that he has presidential immunity and that

4:43

case reached a Federal court of Appeals

4:46

where they said no, in fact, you

4:48

do not have blanket immunity as President

4:50

of the United States. How are we

4:52

expecting that to proceed? As it clear

4:54

at this point, but the Supreme court

4:56

will way and. Know it's not

4:58

clear at all. were waiting for a decision

5:00

from the Supreme Court which really could come

5:03

imminently. It's because Trump filed his merchants the

5:05

application asking for a stay of the mandate

5:07

of the District of Columbia Us Court of

5:09

Appeals. With that mandate that it is issued

5:12

will send it back to the trial court,

5:14

actually restart the proceedings and set a trial

5:16

date at So Trump his ass. the Us

5:18

Supreme court to hold off right to hold

5:20

off the case from going back to the

5:23

trial court's The special counsel responded within a

5:25

matter of days rather than a week which

5:27

the springboard. Given him and then Trump filed

5:29

his reply. So that's fully briefed before the

5:32

Us Supreme Court and they literally could rule

5:34

on the application for the stay at any

5:36

moment. And if Trump is

5:38

found guilty in that federal January

5:41

Sixth case, what could be the

5:43

potential consequences. Which. He could be

5:45

facing up to twenty years imprisonment on some

5:47

of those charges of some of them are

5:49

lesser about five years and the judge also

5:51

has authority if he were convicted of all

5:53

the charges to run the sentences consecutive lace

5:55

he could such a stack the saturate maximum

5:57

for all of them. Would he actually be

5:59

safe? The statue a maximum

6:01

of up to twenty years know that

6:04

unlikely given it is no criminal record

6:06

and the nevertheless the allegations are a

6:08

serious as they could be a bit

6:11

at their hearts the fact that are

6:13

charged or that he was conspiring with

6:15

others to overturn the result of a

6:17

democratic elections through various means including intimidation,

6:20

leaning on people and state office to

6:22

falsify and the results of their state

6:24

election for this the the electors and

6:26

ultimately culminating in the acts of violence

6:29

on January sixth. What? Do you

6:31

forgive the likelihood that this

6:33

case is hard? Before.

6:35

The election. It. Is hard to

6:37

judge. I would say the biggest question mark

6:39

about that timing is how quickly the. Us

6:42

Supreme Court rules. If the Supreme court

6:44

says next week that they're not granting as

6:46

day and they're not taking an authentic the

6:48

case than the case. Immediately goes back to

6:50

the trial court to Judge Atkins, who has

6:53

been very clear that she is trying to

6:55

get this case to trial as soon as

6:57

possible, giving the defense a full opportunity to

6:59

prepare for trial. so she's already made clear

7:01

that the case is currently off the docket.

7:03

The defense is no longer required to respond

7:06

to any motions by the special counsel's while

7:08

the stay is in place, but she's also

7:10

said as soon as the mandate comes back

7:12

to her. She's going to restart the

7:14

case and that means given the calendar

7:16

there had been set previously before the

7:19

state went into place at about three

7:21

months or last on the pre trial

7:23

calendar. So. In. Theory We could see

7:25

this case starting trial and District of Columbia

7:27

Us. In about June and so if

7:29

it takes a couple months to try

7:31

the case in theory, it could be

7:33

fully resolved before the November election. So.

7:36

What we're saying here is if you're

7:38

listening to this podcast and you cover

7:40

American Politics for or a to I

7:42

myself don't plant any summer recess arms,

7:44

but we said that there's the political

7:47

component of this as well as the

7:49

legal component. and so I look up

7:51

some polling on most of the cases

7:53

that were to talk about. In this

7:55

case in particular, you got asked Americans.

7:58

Sort of which case you see as

8:00

the most serious against the former presidents.

8:03

And they said the January Six case

8:05

Most Americans that was the most serious

8:07

case against Trump's and according to Cnn

8:09

poll the majority of Americans want this

8:12

case decided before election day. Now of

8:14

course. Americans don't get a say

8:16

in all of that. that's going to be up

8:18

to the Supreme Court's But do you have a

8:20

sense that the Supreme court's hurrying on this? that

8:22

they have a vested interest in resolving this before

8:24

election day? Well. They said it expedited

8:26

schedule for hearing. Motions on were considering

8:28

most the most. To stay, stay has

8:31

expedited the breeze take off. With respect to

8:33

that, about six the case in case out

8:35

of Colorado which we haven't talked about. Yep,

8:37

it's They seem to understand that there is

8:39

an urgency to decide in these matters involving

8:42

Trump Am whether it's whether you can be

8:44

on the ballot or in this case, I

8:46

think they appreciate the urgency of deciding whether

8:48

or not he's entitled to immunity now. The.

8:51

Question is: is it legitimate essentially for

8:53

the prosecution to say to. The court and for

8:55

the court to. Accept. As a rationale that

8:57

the American people. Are entitled to know

8:59

the results of the criminal trial here before

9:01

the election. To say that essentially outloud, the Special

9:04

Counsel has been a little bit cagey about how.

9:06

He phrases the urgency of the case. Just

9:08

routinely talking about the public

9:10

interest. In impromptu resolutions. Without

9:12

saying it specifically to the election.

9:14

And I think that's because prosecutors

9:16

are trained to not undertake their

9:19

job in a way if it's

9:21

an explicit eye towards political consequences,

9:23

and that's generally. Appropriate. Do

9:26

you have a sense of how the Supreme Court

9:28

might rural here? I. Think that

9:30

did. The opinion that was issued by

9:32

the District of Columbia Court of Appeals

9:34

was extremely strong. It was very well

9:37

written, It was very thorough. It addressed

9:39

every single argument that Trump raised with

9:41

respect and thoroughness. didn't disregard any leaving

9:44

something that made the Us Supreme Court

9:46

would one away and on that the

9:48

Dc Circuit did not. and I think

9:50

it is very well grounded in all

9:53

of the relevant precedents. That said, this

9:55

is a novel issue know court has

9:57

ever. Expressly address to claim.

10:00

Presidential immunity from criminal prosecutions Answer: For that

10:02

reason, I just don't know whether the Supreme

10:04

Court's gonna take it. They may take it

10:06

because they think it's so important and say

10:08

be the ones to speak to it and

10:11

is possible that they would rule differently. So

10:13

one of the sort. Of

10:15

Pop. Descriptions of what's been decided

10:18

in this case is: could the

10:20

President will seal team six to

10:22

assassinate or political enemy with impunity

10:24

because presidential behavior is immune from

10:26

prosecution if the Supreme court took

10:28

up this case. And sad, actually,

10:31

presidents are immune. Would. We then

10:33

be living in a country where like indeed

10:35

the President could order suit the Seal Team

10:37

six to assassinate a political enemy. No.

10:40

I don't think we would. The I think

10:42

that is a large part would depend on

10:44

what the court said about the scope of

10:46

presidential immunity. I signed it. Impossible to believe

10:48

that if they took this case and reversed

10:50

that they would actually then go on to

10:52

say that presidents. Are immune from prosecution.

10:55

In all circumstances and in fact, one

10:57

of the things I think that's interesting

10:59

that's been under reported is an aspect

11:01

of the briefing and the argument in

11:03

the Dc circuit with the Special Counsel's

11:05

has essentially articulated a narrow escape or

11:07

where there might be such a thing

11:09

as presidential immunity and is very narrow

11:11

class of circumstances involving National security and

11:13

essentially saying they said this is a

11:15

Dc circuit all the Dc circuit in

11:17

take them up on this another saying

11:19

it to the Supreme Court in the

11:21

Responsive Racing and most recently if you're

11:23

gonna take. The case Us Supreme Court

11:25

and say that you agree with the

11:28

Dc circuit Am and the trial court

11:30

that Trump doesn't get immunity from this

11:32

criminal prosecutions. You could write the opinion

11:34

in such a way that you leave

11:36

the door opens for their to the

11:38

immunity and some very narrow set of

11:40

circumstances not presented here. In other words

11:42

you could say there may be some

11:44

their classes circumstances probably involving national security.

11:46

It's where the President should enjoy some

11:48

form of them. it's but the President

11:50

should not inform and and enjoy immunity

11:52

to when he's trying. To overturn the results

11:55

of a democratic election. And given that

11:57

the allegation here, it's an easy case

11:59

to. No immunity. Okay,

12:01

so. This is one

12:03

of Trump's arguments, as I mentioned

12:06

that he's immune as President of

12:08

the United States from prosecution. What

12:10

other arguments has he been making?

12:12

So they're obviously some legal arguments he's making that

12:14

are specific to certain cases like in the new.

12:16

York cases and characterize as a hush money

12:19

case and his argued. And that

12:21

the District attorney doesn't have jurisdiction

12:23

to prosecute given that the theory

12:25

of the prosecution in part is

12:27

that Trump as falsifying business records

12:30

in order to conceal violations of

12:32

Federal Election law as less of

12:34

a specific arguments to that case,

12:36

but more broadly between that. And

12:39

the January Six case brought by the

12:41

Special counsel and. The Georgia case. It

12:43

also relates to overturning the Twenty Twenty

12:45

elections. One of the arguments we're seeing

12:47

in both of those cases is that

12:49

Trump essentially was just engaged and First

12:51

Amendment protected speech activities. That he didn't

12:53

commit any crime, he was just speaking

12:56

and at some point the courts. Are

12:58

going to have to rule on. Whether or not that

13:00

as a defense that he can raise here and

13:02

special counsel is already addressed that repeatedly and his

13:04

precincts don't think we've yet seen the briefing from

13:06

funny well, his office on that issue, but I'm

13:08

sure it's going to come up and I suspect.

13:11

That the court will rule that. Know this is

13:13

not constitutionally protected, A Mm and

13:15

activity on. There are lots of

13:17

crimes that are committed through speech

13:19

as well. As other accents and what

13:21

is on at what are some examples here:

13:23

fraud. Comes to mind. For example, threats

13:25

read. These are things that are classically

13:27

done by speaking words and and nevertheless

13:30

when they have an effect in the

13:32

world, they're treated by the law as

13:34

conduct. So simply to say that it

13:36

is a spoken word is not a

13:38

protection that doesn't cloak you in the

13:40

First Amendment's and even if it relates

13:42

to politics in some way which is

13:44

why trump or say it's really at

13:46

the heart of the First Amendment which

13:48

is most concerned with political speech site.

13:50

Again, if what you are trying to

13:52

do is actually persuade. People to overturn

13:55

an election or falsify the election results.

13:57

The fact that that touches on political

13:59

Now it doesn't. Insulated

14:01

from possible criminal prosecution.

14:04

You brought up of the case and

14:06

phone county Georgia which I spent a

14:09

lot of my day yesterday watching funny

14:11

well as as Nina Simone I'm sorry

14:13

for both of us which was riveting.

14:15

I mean you know. In

14:17

some ways I was like all is my job.

14:19

I should be watching this by. Even if it

14:21

hadn't been my job, I would have watched it

14:23

like in no particular order. Some of the highlights

14:26

of that testimony were like a man is not

14:28

a plan. I don't even wanna go to Australia.

14:30

I don't think of Tennessee as a vacation. Sturgis

14:32

all kinds. There's all kind of like side comments

14:34

I. Really funny. Well as said, he is a southern

14:36

gentleman that I'm not. Seventy. One of my

14:39

favorites. Arm so social media has

14:41

been having a field day, but.

14:43

There's a real serious question here,

14:45

which is. Funny. Well as

14:48

hired Nathan Way It as a

14:50

special prosecutor to help prosecute the

14:52

Fulton County case and the defendants

14:54

in this particular case. It's not

14:56

Trump who's actually trying to get

14:58

her removed. It's a different defendant

15:00

in the case. The tried to

15:02

get her removed from the post

15:04

and the indictments dropped. Basically, they're

15:06

saying that she had a personal

15:08

interest in pursuing the case. As.

15:10

Much as possible beyond necessarily what justice would

15:12

demand. Because once you hired Nathan Weight of

15:15

Special Prosecutor, she was benefiting from whatever money

15:17

he was making off of the case. And

15:19

he made over six hundred thousand dollars in

15:21

helping to prosecute this case. And they point

15:24

to be cases of a tux to bullies

15:26

and one of the conversation with whether or

15:28

not but wheezes on a different continents. Turns

15:30

out it's not. But anyway, This.

15:33

Is the case that they are

15:35

making and folks could see that see

15:37

was defending herself emotionally? I'm in

15:39

a way that sort of felt somewhat

15:42

exasperated with the whole situation, but how

15:44

likely is she'd actually be removed from

15:46

for post in this case and have

15:49

those indictments dropped? Yeah, so let

15:51

me just say that as a former

15:53

prosecutor, I just cringed when I saw

15:55

the proceedings and how they were unfolding

15:57

yesterday. I was shocked when I saw

15:59

Nathan Way take the stand. and even

16:01

more shocked when Funny Willis came in

16:03

and took the stand. And this is

16:05

just not where you want to be

16:08

as a prosecutor. And I don't think

16:10

there's any precedent for a prosecutor, let

16:12

alone the chief prosecutor, the elected prosecutor

16:14

of an office testifying about her romantic

16:16

relationships. And it's so unprecedented. It's it's

16:18

it's It's worth pausing on how extraordinary

16:20

this is, because the focus of course

16:22

now is on her personal conduct an

16:24

eighth and ways personal conduct, rather than

16:27

the very serious case of they've brought

16:29

about overturning. Attempts overturn the Georgia election.

16:31

so that's why are they doing it?

16:33

Why did they take the sounds? Yes,

16:36

Well, to be honest, I'm not sure.

16:38

and given that the judge I saw

16:40

it had previously ruled that he was

16:42

not going to require them to take

16:44

the stand. And last, there's a threshold

16:46

of evidence put forward by the defense

16:48

that had made this motion to disqualify

16:51

Because the defense bears the burden of

16:53

showing that there is actually this reason

16:55

to disqualified that there is a conflict

16:57

of interest and has to come forward

16:59

with some evidence to support. That's right

17:01

before the judge is going to require

17:03

the prosecutors. To take the sand given

17:05

how unusual that isn't that they don't

17:08

carry the burden, I don't think that

17:10

that threshold was met. We had this

17:12

witness who was called, who is the

17:14

former friend of Funny Willis who testified

17:16

that she. Had observed Connie

17:18

Willis and Nathan Wait having a

17:20

romantic. Relationship At a time before his

17:22

appointment as the Special Prosecutor, she clearly

17:24

said that she knew Funny Will back

17:27

and I think I was twenty nineteen

17:29

to Twenty Twenty One and the she

17:31

observed them having this relationships but as

17:33

her testimony went on, it really lacked

17:36

specificity and she also as her testimony

17:38

went on and she was asked about

17:40

her own employment history for example, in

17:42

a relationship with Funny Well as it

17:44

became quite clear that they no longer

17:47

had a good relationship, in fact, it

17:49

seemed quite sour. And that she

17:51

had at one time worked for

17:53

Funny Wilson Da's office and had

17:55

left under circumstances that suggested that

17:57

she was not viewed as. Performing.

18:00

Job very well. So she's what we would

18:02

call a biased witness. So are we saying

18:04

that there's a chance that Nathan Weight and

18:06

funny well as took the stand because they

18:08

personally wanted to. I think that

18:11

day made a calculation at that

18:13

point that strategically for variety of

18:15

reasons probably not just legal. In terms

18:17

of what they had to do in this particular

18:19

searing, but maybe more broadly. That they wanted

18:21

to clear their names. I'm not sure that

18:24

the judge would have required them to if

18:26

they had continued to object. At that point

18:28

previously, they had objected to taking the stand.

18:31

Okay, so now that that's all done, What

18:34

happens now doesn't seem likely that

18:36

shall be removed and the indictments

18:39

dropped. Based on what I saw

18:41

at the hearing yesterday know, I did

18:43

not think that the defense had carried

18:45

their burden for a disqualification because you

18:47

have to testimony of this one witness.

18:49

I. Just described a moment ago what I did

18:51

not find very compelling. And then

18:53

you had the testimony of

18:56

Nathan Wade and Sunny Willis.

18:58

very detailed denying that they.

19:00

Had had a romantic relationship prior

19:02

to his apartments and as a

19:04

special prosecutor. And then talking specifically

19:06

about the finances of these trips

19:08

that they took together meals they

19:10

hide out, with both of them

19:12

saying that Nixon, he will us

19:14

had paid Nathan Weight back for

19:16

her share of any such expenditures.

19:18

So that really took sort of

19:20

the power out of the allegation

19:22

that she was benefiting from his

19:24

payments and a special prosecutor. In the

19:27

form as regis of Travel because she was paying

19:29

her own way. Nonetheless,

19:31

Because now part of the political life blood

19:33

of the case and if this goes to

19:35

trial does going to be a jury that.

19:38

Basically. We're not going to be able to

19:40

and panel Juri that one has not heard about.

19:43

The Twenty Twenty Election and Trump's

19:45

call to the sandwich Secretary of

19:47

State brought Robbins Burgers and this

19:50

complaint against the D. I saw

19:52

this now in many ways becomes

19:54

political and I should say the

19:57

Atlanta Journal Constitution did a poll

19:59

of. Like me, Georgia voters

20:01

and fifty nine percent say Billie

20:03

politics played a big role in

20:06

Trump's Georgia. It's indictment and so.

20:08

I. Think as much as we say that.

20:11

And we look at polls that show

20:13

that voters. Are. Less inclined to

20:15

vote for Trump if he is in

20:18

fact convicted. There's. Going to

20:20

be sort of circumstances around whatever

20:22

potential indictment there is. The voters

20:24

are also going to way do

20:26

they think that it's politically motivated.

20:28

Dell Baby potentially be able to

20:30

watch the trial on T. Where

20:32

do they think of the proceedings.

20:35

And vivid I think of the jury that was

20:37

impaneled. set aside that the jury itself may have

20:39

it's own views and it will be very hard

20:42

to and panel a jury that hasn't touched. Or.

20:44

Hasn't consumed some of the snooze and some

20:46

way or have an opinion about it's so

20:48

there's also basically a political goal here I

20:50

would say, which is kick up enough dust

20:52

to make it seem like everyone is corrupt.

20:55

And then have ah to stop their hands and say

20:57

well. You. Know. Everyone's. Corrupt. but

21:00

they're just prosecuting Trump's for a biased

21:02

reason or something like that. It's

21:04

possible said that that's what happens, mean there's

21:06

There's a couple things going on here. Rent

21:08

One is what did as Odors say with

21:11

respect to the November election for President and

21:13

want to vote or say that funny Willis

21:15

and she's up for reelection. And and then

21:17

there's one of the jurors say in this

21:19

case if it ever actually goes to trial,

21:22

it is true that it's gonna be really

21:24

hard to find a jury for any of

21:26

these criminal cases involving Trump nevertheless, course and

21:28

panel juries in cases that has been notorious

21:31

all the time. When I was a prosecutor

21:33

I was always amazed. About the extent to

21:35

which things that were so consuming me and though

21:37

is it that I knew out in politics in

21:39

the world's really were not have all that much

21:42

interest to a lot of people who came in.

21:44

To serve for jury duty so. You

21:46

have did spend more time finding people that

21:48

you can find people who have not consumed

21:50

the extent of news that you and I

21:53

may have about the as matters are just

21:55

don't find that interesting am and who actually

21:57

can be sad and parcel. I mean did.

22:00

The judge you did in the to

22:02

case the to civil cases involving Eg

22:04

and Carol that just were tried in

22:06

the Southern district of New York Again

22:08

very controversial cases, lot of notoriety and

22:10

the judge managed to and panels jurors

22:12

twice in though civil cases. Can

22:14

we talk about those several cases

22:16

In New York for a second?

22:18

So he was ordered to pay

22:20

huge and carol over eighty three

22:22

million dollars in a civil case

22:24

surrounding sexual abuse. We.

22:27

Are also waiting to hear a

22:29

judge's ruling on another civil fraud

22:31

case in New York that alleges

22:33

that Trump inflated the value of

22:35

his assets in an attempt to

22:37

get better. Basically. Least

22:39

deals from banks, etc

22:41

etc. In. That

22:44

using truck is such a lot of

22:46

money. In the civil fraud case, we're

22:48

looking at something that can approach four

22:50

hundred million dollars at the end of

22:52

the day. And even a ban on

22:54

doing business in New York State's. No

22:56

matter what happens, are these cases going to be

22:58

appealed? Yes, And

23:01

I think that Trump is already appealed

23:03

the first. Eg, and Carol for an actress who

23:05

they. Were the to civil cases for

23:07

two sets of statements. The first one

23:09

that went to trial also involved the

23:11

allegation of sexual assault. He was found

23:13

liable on that such a sound that

23:15

he did sexually assault aging Carol under

23:18

New York law. The second case was

23:20

solely about the destination and so he's

23:22

already appeal to the Second Circuit court

23:24

of Appeals the first verdict. He will

23:26

be appealing the second verdict and the

23:28

judge just i think last week denied

23:30

his motion for a new trial. so

23:32

now it's right for him to to

23:35

file that. Appeal absent that would go to

23:37

the Second Circuit Court of Appeals and then

23:39

from there in. Theory: You could try to

23:41

bring it to the Us Supreme Court then

23:44

in the New York State case may we

23:46

expect that? Verdict. Momentarily and he

23:48

can appeal that to the Intermediate Appellate

23:50

Court in New York State, the Appellate

23:53

Division first Apartment, and then from there

23:55

to the New. York. Court of Appeals, The

23:57

highest Court of New York State. so we're looking at

23:59

months. Or of appeals and both sets of cases.

24:02

Is. This this a hard question to

24:04

answer but is this normal? I'm excited

24:06

the poll that showed likely doors from

24:08

photos of viewing some of this prosecution

24:10

as politically motivated. So there's the civil

24:12

cases in New York. There's also the

24:14

criminal case a New York brought by

24:16

Alvin Bragg which addresses the hush money

24:19

payments to Stormy Daniels In in all

24:21

I would see and all of these

24:23

New York cases are seem to be

24:25

more of an air of this is

24:27

politically motivated right album. Bragg, while like

24:29

many days is elected and ran on

24:31

a platform. Of prosecuting Trump. he's also

24:33

using a novel legal theory to. Prosecute.

24:36

This case then of course to streams of

24:38

the Attorney General of New York State was

24:41

also a democrat who you know has made

24:43

political statements surrounding Trump and things like that.

24:45

So. To. A much larger extent

24:47

and in particular Jack Smith. There seems

24:49

to be an air of his. it's

24:52

politically motivated is this Sarah? Can we

24:54

look at other cases and say no

24:56

Other folks who have done similar behavior

24:58

are treated similarly into York and you

25:00

know, ordered to pay similar fines. Or

25:03

is this truly unique? Well

25:05

here. So it's hard with Donald Trump

25:07

because he says I'm being unfairly persecuted.

25:09

I know what he has been treated

25:11

like this and the reality is that

25:13

very often there's nobody has behaved as

25:15

he has rights as it's a hard

25:17

to do napoles to apples comparison. That

25:19

said, the statute that the District Attorney

25:21

the Just Returning Bragg is using to

25:23

prosecute Trump the fastest business records that

25:25

is. He sell. Any in circumstances where

25:27

the sauce the cases to concealer further

25:30

another crime. That charge is

25:32

brought all the time by his office

25:34

and by other Da's offices around New

25:36

York. Has it been used in the

25:39

particular circumstance of concealing a team and

25:41

to somebody who alleges an essay. Or

25:43

because you're trying to. Cover it up for purposes

25:45

of your elections. Know, there's no case that

25:48

we can point to that's exactly on all

25:50

fours, but that's often the case. That we

25:52

can't point to another cases exactly as far as offers

25:54

what we can. Say is that back? Criminal

25:56

charges has been routinely used by

25:58

prosecutors, isn't it? The issue that

26:01

they're sort of roping in a

26:03

several law into a state law

26:05

case and the question is okay,

26:07

can you do that. So

26:09

that's illegal question in the in the

26:12

case, the judge presiding over the case

26:14

rejected the argument that you couldn't do

26:16

that Basically, yesterday in his ruling, That

26:19

was as if all these days or so lost

26:21

his job. He was. He was way. Was

26:23

inside yesterday as the hearing was

26:25

happening in Georgia simultaneously, so he

26:27

rejected that argument. And it's important

26:29

to note that that's not the

26:31

only legal theory that Bride has

26:33

advanced. And so the statue. Adjusted

26:35

the argument that. The. Case

26:37

should be dismissed simply because of

26:39

that connecting I Federal law to

26:41

a state. Laws said you can

26:43

continue to prosecute based on this

26:46

Yes, He said this went, that's permissible

26:48

and in part because the near Saturday

26:50

and question just requires proof that the

26:52

person falsified their business records with the

26:54

intent to conceal a crime and so

26:56

long as it's a D, I can

26:58

identify a crime that on the books,

27:01

whether it's a New York State crime

27:03

or a federal crime. The judge said

27:05

that is a permissible basis. For bringing

27:07

this charge in New York State courts.

27:09

Now it's notable that. Bragg. Also

27:11

identified to other crimes that he says

27:13

he can prove that Trump was trying

27:16

to further or concealed by falsifying the

27:18

records and one was in New York

27:20

State election law. and it makes it

27:23

a crime to conspire with others to

27:25

essentially as I lay election laws and

27:27

generally and then the second or third

27:30

theory is to violate New York tax

27:32

laws because the way the payments were

27:34

made to Michael Cohen Trump's former lawyer

27:37

concealed. In one of the last half of that. The true

27:39

nature and the true amount as his income

27:41

for tax purposes and so evidence of all

27:43

three of the series. Was presented to the grand

27:45

jury. The judge said, after looking at

27:47

the Grand Jury minutes and I'll let you

27:49

present all three series to the jury. Notably,

27:51

the judge found that there was one theory

27:54

that Bragg has advanced in his papers that

27:56

was not presented to the Grand jury, which

27:58

was that they falsifications the Trump Organisation record

28:00

the was designed to conceal falsification of records.

28:03

By am I the parent company of

28:05

The Enquirer? The Jets elite and present evidence of

28:07

that to the grand jury. I'm not gonna let you

28:09

proceed on that theory. Before It and this Juri.

28:11

So they're these two alternative theories as well. So.

28:14

This is now going to trial. On

28:17

March Twenty fifth is or anything that

28:19

could sort of and he sticks that

28:21

could be front and spokes to prevent

28:23

best yes assess their always arts. I'm

28:25

sure the District Attorney at this point

28:27

is preparing to go forward on March

28:30

Twenty says than defense counsel should be

28:32

preparing as well given the judge judges

28:34

from ruling. Yesterday but there are

28:36

always things that can happen from

28:38

you know somebody gets sick to

28:40

in this case the possibility that

28:42

the D C trial the January

28:45

Six Special Counsel trial gets restarted.

28:47

If the Us Supreme Court were

28:49

to say today, we're not taking

28:51

the case or not granting a

28:53

the District. Of Columbia Court of Appeals

28:55

decisions stance which means the case goes

28:58

back to judge check in and Dc

29:00

to restart the proceedings. Than Judge

29:02

Atkins had called the parties and next week

29:04

and say it's and setting a trial date

29:06

in. June early June. Now that's

29:08

after the March Twenty Six Trial day.

29:10

In theory, the trial in New York

29:13

is hop in. March.

29:15

April May and and there would be

29:17

still room to start the. Dc case

29:19

and beginning of June bite.

29:21

At that point the lawyers

29:23

for Trump might credibly say

29:25

to. Touch. Martin in New York.

29:28

We now need to prepare for the straw that

29:30

we know is happening in in D C. I'm

29:32

in June and if that were to happen, I

29:34

could see the District Attorney. Actually

29:37

not resisting the effort to postpone the

29:39

New York trial. Because at one time

29:41

he signaled that he was willing to

29:43

postpone his trial if the. District of

29:46

Columbia case trial was going forward and

29:48

so I could see that playing out

29:50

again. Essentially an acknowledgement that. Doctors

29:52

have more serious. Yes,

29:55

And as a deference to it being

29:57

a several case and I think to

29:59

the seriousness. This.

30:01

Is maybe more philosophical question about

30:03

how America does bought by. Is

30:06

this weird that we have

30:08

elected prosecutors? Da's who can

30:10

run on a platform of

30:12

prosecuting somebody? In. This case

30:14

it's prosecuting a particular person, but other

30:16

times it's just prosecuting particular types of

30:18

crimes. You know, we need to prosecute

30:20

people who are carjacking or you know,

30:22

shoplifting or whatever it may be. Or

30:24

we need to reform the system and

30:26

not prosecute people who are in the

30:29

country illegally or whatever it may be

30:31

like. Do other countries

30:33

do it this way? It's similiar with

30:35

how other countries. Do it. Other than

30:37

to say that in most other countries,

30:39

my understanding is that you have people

30:41

who are trained to be prosecutors, raise

30:43

more of a civil servant a job

30:45

as opposed to and the way it

30:47

is here where it's and elected position

30:49

and the vast majority of places not

30:51

the federal system obviously and so it's

30:54

treated differently and people are educated for

30:56

it differently. The law is also. Different

30:58

in many countries and of civil laws

31:00

at systems and judges are trained differently

31:02

and we have a different david different

31:04

system in terms of juries being. Of.

31:06

Judges rather than lane juries have a jury's

31:08

The whole system is different in it's important

31:10

to take that context into account as see

31:13

or question about is a crazy. Not that

31:15

it's just that they're elected but that they

31:17

could run and. Same. The specific things as

31:19

part of their platforms. I distinguish between

31:21

saying your priorities are certain areas of

31:24

crime. And saying that you're gonna prosecute

31:26

a particular individual. I don't think it's appropriate

31:28

for a prosecutor to say I am going

31:30

to prosecute and this person when I get

31:32

into office exit think it creates all kinds

31:34

of problems as a practical matter as well

31:36

because then once you are in office if

31:38

you bring that case I think the defense

31:40

has a fair argument that you are not.

31:42

A being say or and impartial argument has

31:44

certainly been made in this case and probably

31:47

shape public opinion. I'm a recent poll after

31:49

poll where folks say that they see this

31:51

as the least serious and most politically motivated

31:53

taste. So it's is so it's a

31:55

fair issue. and and yeah some of may

31:57

be nuance in terms of exactly what is

32:00

the person saying. Are they saying something like

32:02

i'm not afraid of anybody including Donald Trump

32:04

or I think that's different from saying Day

32:06

One and Office. I'm gonna bring a charge against his

32:08

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34:00

shouldn't feel like a chore. So.

34:03

There's one cave and we have not

34:06

yet touched on and that's of course

34:08

the Federal Classified Documents case. It seems

34:10

like depending on what happens with the

34:12

Jack Smith January Six case. It.

34:14

Could be the next likely us to

34:16

go to trial. I see here that

34:18

a D is set for May twentieth.

34:21

Although. I think there are some

34:23

questions about that's where do we were. Do

34:25

things stand on. So

34:27

that case has had a lot

34:29

happening recently but it hasn't really

34:31

been out in public view. There's

34:33

been a lot going on before

34:36

the court a doubt what documents

34:38

are going to be turned over

34:40

to Trump and his defense team

34:42

that the government doesn't wanna turn

34:44

over and says it doesn't have

34:46

to under see bus which is

34:48

a sad that governs a cases

34:50

and on a classified information is

34:52

also been motions and doubts what

34:54

is going to be made available.

34:56

To. The Public: It's been turned over

34:58

in discovery to Trump and his team

35:01

that subject to a confidentiality order that

35:03

their friends discovery. So that's. Actually the

35:05

thing that most recently was subject

35:08

to three thing because the Special

35:10

counsel's understandably. As concern. And

35:13

some of the discovery that they've turned

35:15

over to the defense includes prior statements

35:18

of witnesses and other documents that would

35:20

reveal the identities of people who have

35:22

provided information against Trump. And they're very

35:24

concerned about the safety of those individuals.

35:26

So we're having lots of back and

35:28

forth about what's been turned over to

35:30

the defense. what else the government needs

35:33

to produce Less can be available on

35:35

the public record and all that's happening,

35:37

right? While there's other substantive motions, Or

35:39

outside of the parameters of what I just

35:41

described that has to be litigated before this

35:44

can go to trial. The

35:46

judge in that case. it's canon. As.

35:48

Of now she is still saying that

35:50

the made trial date will hold Think

35:52

she also issued a ruling this past

35:55

week saying that she's gonna for now

35:57

hold the defense to us February Elites

35:59

have you. The date I believe a

36:01

doubt filing certain emotions and but that she

36:03

would consider late filed motions is indeed be.

36:05

But it's not clear to me that it's

36:07

on track to go to trial in May

36:10

and of course of any these other cases.

36:12

Actually go to trial before. That that could be

36:14

a basis in and of itself to postpone the

36:16

trial and in. Florida, so you go of.

36:19

Did some really interesting polling on all

36:21

of the cases, and I mention that

36:23

American saw the January Six case brought

36:25

by Jack Smith as the most serious.

36:27

In fact, fifty percent of Americans according

36:30

to the pulsar, it was the most

36:32

serious. Twenty. Three percent said the

36:34

classified documents case is the most

36:36

serious, fifteen percent said George Alex

36:38

and thirteen percent said hush money.

36:40

So America it seems like Americans

36:42

are waking was classified documents case.

36:44

Second, maybe that's just because of

36:46

the federal case as well, where

36:48

you see it in all of

36:50

Us. I. Think

36:53

it's extremely. Serious. whether it's second

36:55

or third am I think

36:57

depends a d it on

36:59

on. Sir how when evaluates

37:01

this the seriousness of the

37:03

Georgia case, I have confidence

37:05

that the As Florida case

37:07

involving classified information is. The

37:10

election doesn't get in the way and if

37:12

the judge permits or to proceed can go

37:14

to trial and the evidence seems. Incredibly

37:16

strong from everything. We've seen and

37:19

the substance is serious. I'm in.

37:21

This is the willful retention of

37:23

national security. Information including information

37:25

pertaining to. Nuclear Secrets

37:28

and the capabilities military capabilities

37:30

of Us allies. So the

37:32

substance of the documents that.

37:35

Trump is charged with having retained

37:37

or a very significant. And

37:39

then the Obstruction of Justice charges

37:42

on top of that are incredibly

37:44

serious and include trying to author

37:46

videotape to the lead evidence of

37:48

Trump's associates moving the boxes to

37:51

so that special counsel wouldn't have

37:53

access to the evidence of their

37:55

attempts to move. this national. Security

37:58

information so it couldn't be sound. When

38:00

prosecutors brought this case in South Florida is

38:03

he My Part of the rationale was that

38:05

they didn't want to start The Keys in

38:07

Dc only to have defendants argued haven't moved

38:09

to Florida and then have that delay everything

38:12

but. Analysts at the time also

38:14

suggested that it can be harder to

38:16

find a connection to get a conviction

38:18

in South Florida, so I'm curious. How.

38:21

Much of that is really an issue.

38:23

Specifically, were a case is brought,

38:25

you know we have. Do. York,

38:27

we have D C, We have Fulton

38:29

County, Georgia and we have South Florida.

38:33

Does. That make a lot of difference like

38:35

in your experience does the jurisdiction in which

38:37

a cases tried like. Is.

38:40

Is. Just as geographical in America.

38:44

Well it's a consideration and but it's

38:46

I would say at the bottom of

38:48

the list and mean at the end

38:50

of the day you have to bring

38:52

the case where the evidence suggests it

38:54

should be brought. You. Can't under the

38:56

law bring a case wherever there's than

38:58

you were ever some part of the

39:00

crime. Occurred and there are good arguments for

39:03

of how this case could have been brought

39:05

in the District of Columbia maybe even in

39:07

New Jersey. Have seen some arguments about that,

39:09

but clearly the vast majority of the evidence

39:11

in the conduct happened in Florida. and so

39:13

you can also be vulnerable to looking like

39:16

you're playing politics as you bring a case

39:18

and and then you. That's not where the

39:20

weight of the evidence in the conduct happened,

39:22

and so you could be open it. You'd

39:24

be getting perhaps a slightly better jury pool,

39:27

but you'd be also opening yourself up as

39:29

a prosecutor to arguments that you were trying.

39:31

To rig this in a way that you

39:33

brought it to a jury pool that would

39:35

be less favorable. So there's pros and cons

39:38

to whatever choice you make. I believe injuries.

39:40

in my experience juries are say are you

39:42

can find jurors who don't have all that

39:44

much information about the case. You have to

39:46

consign jurors who aren't frankly, not that political

39:48

at all no matter where you go. A

39:51

memo was astounded by the number of people

39:53

who don't. Vote at All and I'll

39:55

say this: as a journalist who spends

39:57

time in the field, I have similar

39:59

experiences were. When you get away from

40:01

the rallies and political events if you're in a

40:03

park or at a grocery store or whatever you

40:05

will find people all the time were like. You're.

40:08

Asking me who why it like I don't

40:10

care, I don't plan on voting or I

40:12

plan on voting, but like I don't really

40:15

know. Maybe I'll vote third party? You know,

40:17

people who are kind of more disgusted by

40:19

all of this than they are. Sort.

40:21

Of politically motivated for one side of the

40:23

other. Yeah, so and only need

40:26

a twelve any twelve jurors for some

40:28

alternate. And so I have confidence that

40:30

the courts will be able to signed

40:32

a jury and who does not have

40:34

a preformed opinion about the that the

40:36

case and that the evidence will be

40:38

presented in a way that. Takes

40:41

the politics out of it. in fact. now

40:43

to switch and cases for a moment. one

40:45

of the recent filings and the Special Counsel's

40:47

office in the Dc case the January Six

40:49

case. Was emotion and live in a

40:52

a pretrial motions to try to preclude

40:54

Trump. From bringing politics too. Much

40:56

into the case and arguing to the during this

40:58

is a political process. And trying

41:00

to make in about politics as

41:02

opposed to the evidence of trying

41:04

to stop. To

41:09

their. Part and presiding over these trials to

41:11

try to keep the politics out of it,

41:13

not just for jury selection but at the

41:15

presentation of the evidence. On our

41:17

topic, one of Trump's arguments broadly

41:20

has been that all of this

41:22

as election interference That you know

41:24

basically. Democrats. Prosecutors are

41:26

trying to prevent him from getting

41:28

elected by bringing these cases in

41:31

the first place. And

41:33

the argument is perhaps that viscous should be

41:35

dropped or at least postponed until after election

41:38

day. Is. That

41:40

argument going to find success in

41:42

any of these values. I

41:44

don't think is gonna find any success in

41:46

the courts are in which it people Oh

41:48

is. Me again to Trump

41:50

is in a category of was in

41:52

many ways with never been in this

41:54

situation but there are descendants a disease

41:56

lies an important jobs who are charged

41:59

regularly and will. Sometimes say to the

42:01

core I really need you to postpone the

42:03

trial until after X Y Z and courts

42:05

generally say no of the public has an

42:07

interest in a speedy trial as well. You

42:09

don't get to dictate the timing of the

42:11

trial, and so the mere fact that he's

42:13

running for office and has this important thing

42:15

to do in and of itself right is

42:17

not a reason why he can't go to

42:19

trial. That said, read: there is a real

42:21

norm in the Department of Justice that I

42:23

think the course appreciate, which is that when

42:25

that other thing you have to do is

42:28

running for office, read: the preference would be.

42:30

Not to interfere with that, but

42:32

it were in an impossible situation

42:34

in part because it's I think

42:37

pretty clear.most observers that Trump's would

42:39

order his attorney General right to

42:41

drop that cases and so they

42:44

would never. Go forward. Moreover,

42:46

there's the standing Department of Justice

42:48

memo that says he can't prosecute.

42:50

A sitting president and that seems right?

42:53

So and they were looking at the

42:55

trials not happening if he is in

42:57

fact elected, if he's not elected and

43:00

some of these cases carry on. After

43:02

the election, I expect they will go

43:04

to trial, which. Light.

43:10

So let's talk about. The.

43:13

Calendar and the parts of consequences

43:15

So it looks like v Missouri

43:17

and case was gonna go first.

43:19

March twenty fifth. Consequences.

43:21

Were what are we looking at? So did

43:23

the maximum penalties are a couple of

43:26

years in prison. Most people who don't

43:28

have a. Prior. Criminal Record: Don't wind

43:30

up serving prison. Term on these kinds of

43:32

charges. Typically as a judge would have a lot

43:34

of. Discussion about whether his it's

43:37

and pose probation or upto

43:39

and except for years imprisonment.

43:41

And so if we get to that

43:43

point asking the a really interesting sentencing

43:45

for seating. Around or it. Do you

43:47

expect that the jury of gonna convict him

43:49

in my case. I need to

43:52

wait and see the evidence. I mean that's a case

43:54

where Michael Collins and Important Witness and we all know

43:56

Michael Cohen has serious credibility problem is he's. Already

43:58

guilty to lying under else so

44:00

I don't envy the prosecutors who

44:02

need. To put him on the stand, they're

44:05

going to have different all of his credibility

44:07

problems with the jury and his convictions and

44:09

all of his lies and they're gonna have

44:11

to corroborate everything he says that significant through.

44:13

Other documents much as to my mother

44:15

witnesses so I want to wait and

44:17

see who those other witnesses are and

44:19

how strongly the evidence comes in rates.

44:22

and next on the calendar sort of

44:24

floating date which is January Sixth, federal

44:26

case could sort of be approved to

44:28

go to trial at any time. It

44:30

sounds like we talked about the consequences

44:32

barracks being you know, a potential maximum

44:34

of twenty years, but that we probably

44:37

wouldn't expect to be that long. Either.

44:39

Also the case where you x that's the one

44:41

did you say is most serious as are

44:43

also the case where you think it's likeliest that.

44:46

The. Prosecutors would get a conviction. Think

44:49

again. It depends how the evidence comes in.

44:51

From what we see charged in the

44:54

indictment. Which seems to reference a lot

44:56

of information gathered from a lot of

44:58

witnesses and documentary sources. It looks

45:00

like. They've got a very, very

45:02

strong case. By and important

45:05

elements. State

45:08

of mind at it's criminal law and with

45:10

tell my students that is one of the

45:13

hardest. Things to pass because we can

45:15

sign some his. Mind and the burden of

45:17

proof is beyond a reasonable doubt and says

45:19

you have to show that the person is

45:21

acting with the intent to obstruction official proceeding

45:23

with the intent to deprive people of their

45:26

right to vote. Then you really needing you're

45:28

taking on a big bird. And and of

45:30

course Trump famously argues well, but I thought

45:32

that I had won the election. Now legally,

45:34

it doesn't matter whether he thought he won

45:36

the election. If. He knew he was engaging

45:39

in unlawful means, illegal means to try

45:41

to overturn. The elections and that would still

45:43

be illegal under the law that the question will

45:45

be will how strong is the proof because I

45:47

think it's going to matter to a jury that

45:49

he actually was told he had lost the elections

45:51

and how strong is the proof that he knew

45:54

what he was doing essentially were efforts and that

45:56

we're not illegitimate to try to get new will

45:58

actors are put on the slave. A

46:01

legitimately elected electors. Next,

46:03

we have a very tentative may twenty.

46:05

As for the Federal Classified Documents case,

46:08

it's not like you are skeptical that

46:10

that is going to go to trial

46:12

in late May, but. What?

46:14

Are the potential consequences? They're. Also

46:17

very serious penalties and and

46:19

I have to double. Check as

46:21

can laugh at Ten years, Twenty years

46:23

and years And started there are there

46:26

could be twenty years on the obstruction.

46:28

At so we're looking at a lot of time and

46:30

and unlikely that he would. Get those?

46:32

That's right, Axis and guess but it

46:35

is very serious conduct our again the

46:37

will for attention of really important national

46:39

secrets and then the Obstruction of Justice.

46:42

On top of that. Like.

46:45

We have a conviction. I'm really asking you to play

46:47

like me How we are legal Now We are here.

46:49

And so again are I always hate

46:51

to say until I see how the

46:53

case comes in on the papers, it

46:55

looks really strong. It looks like they

46:57

have lots of witnesses were cooperating, including

46:59

this person who was identified in the

47:01

Super Nes superseding indictment, who I think

47:03

was the I T person, the tech

47:05

person who was asked to delete some

47:07

of the footage. That person sounds like

47:09

a very, very strong witness and that

47:11

least against nada I think they're the

47:14

challenge is gonna be connecting everything to

47:16

trump the record looks pretty strong circumstantially

47:18

in terms of. His communications with not

47:20

as sort of putting the timing of those

47:22

communications together with what not as and did

47:24

but I think the challenge there is going

47:26

to be again connecting it up to trump

47:28

especially if not at and the other defend

47:31

it on the air and don't. Don't flip

47:33

on him and doesn't look like they're going to. And

47:36

lastly, we have Fulton County.

47:40

Do. Think that's the least likely to

47:42

go before election day. So.

47:45

That when doesn't even have a tentative

47:47

trial day. Which tells you something. Some

47:50

of those defendants still have pending appeals

47:52

in the eleventh Circuit on their efforts

47:54

to remove the case to several court

47:56

the very unlikely to prevail on those

47:59

given that the. The circuit already rejected

48:01

one such a claim, but nevertheless are

48:03

a lot of moving parts there, and

48:05

there's so many descendants still even have

48:08

several have already pled guilty. I think

48:10

you still have at least twelve, I'm

48:12

not mistaken, maybe more of a remaining

48:15

in the case. So just as a

48:17

logistical. Matter is gonna be hard to

48:19

find time to try this at case

48:21

and whether it's weiner. Split into multiple

48:23

trials, we don't know. Lots more motion

48:25

practice to be decided there. There's gonna

48:28

be a motion based on supremacy clause

48:30

immunity that the judge is gonna have

48:32

to decide and so that when. I

48:34

see on a slower burner. And

48:36

what's the biggest question? They're sort

48:39

of the strongest evidence versus the

48:41

potential pitfalls that prosecution to trace.

48:44

Was there's there's so many charges and

48:46

so many defendants in that case. Or

48:49

just as a matter of. Presenting.

48:51

The case coherently. I have some concern

48:53

arm and like to see the case

48:55

more streamlined. have more people are taken

48:57

out of the case because they plead

48:59

guilty for example. I think that would

49:02

help sort of focus or the presentation

49:04

of evidence. I think there will be

49:06

some questions raised as to whether or

49:08

not the evidence is going to be

49:10

sufficient. Again on that. the mens Rea

49:12

Ah, the intense am trying. It again to

49:14

Trump said they'll be some common issues with

49:16

respect to. That case and the federal case.

49:20

A. Truly new true crime. Ponder the storm

49:22

to grow Be. A perfect place

49:24

to dump about inside. The search

49:26

for serial killing her last phone

49:28

call was to live on not

49:30

disturbing blue side. Excited ice cream

49:32

or really scared me. Very ritualistic

49:34

behavior. stunning said that say we're

49:37

has Stumped as we were, there

49:39

was less isolation and Strachan twists.

49:41

Were anxious to have this over

49:43

with their cases. Where on? Saw

49:45

that movie? Worthless until today. Eyewitness

49:47

to Google be or new podcast

49:49

available now. So. Going

49:51

back to this you Gov Paul that

49:53

I found really handy. Peterson.

49:56

We Americans are more likely to say

49:58

that Trump should be convict. The than

50:00

to say that he will be convicted.

50:02

So for example, when the January Six

50:05

case forty five percent said that he

50:07

should be convicted and just thirty presents

50:09

think that he will be. Super.

50:12

Center: What's going on there? I think people

50:14

named the are being smart and that they're

50:16

saying we don't know what the evidence is

50:18

going to be. It I can. maybe they

50:20

recognize that twelve jurors can be idiosyncratic and

50:22

so. That doesn't surprise

50:25

me. And given that we don't

50:27

have all the evidence in the public

50:29

record yet, we haven't seen how well

50:31

as to cross examination so that doesn't.

50:33

Surprise me too much. I always tell folks

50:35

there's wisdom in the crowd's like people like

50:37

are screw polls, whatever and like, but you

50:40

look at where the majority fall on a

50:42

lot of things. I'm. Thoroughly. Enjoyed

50:44

being wisdom out there. Bullets, brothers,

50:46

and hypotheticals. Whatever Donald Trump

50:48

is convicted in one or more of these

50:50

cases, he's in prison. Before. Election

50:52

Day he wins the election. So

50:56

one of the things that people often

50:58

ask is is it really true that

51:00

there's no legal bar to somebody? Being

51:02

President who has been convicted or

51:04

sell any answers, there's no part

51:07

running for. Office if you've been convicted

51:09

of felony and there's no legal bars to

51:11

holding office the Christmas or what happens at

51:13

that point. Just as a practical matter Season

51:15

is that we can say that somebody. Is

51:18

going to actually. Run the country and

51:20

from a prison cell and you know what's

51:22

the. Authority for holding the President of

51:24

the United. States in a prison

51:26

means death Again, a question we've

51:28

never confronted before. I cannot imagine

51:31

that that's a reality that we

51:33

will find ourselves in, I'd although

51:35

it is a theoretical possibility how

51:37

the courts would address that, I.

51:39

Don't know. And

51:41

of course is a big difference I think

51:44

as many people have noticed between the federal

51:46

cases and the local cases which is that

51:48

the President has all basically. Kin

51:51

pardon himself or do a lot of

51:53

thing work for dried somebody. The eyes

51:55

You will order somebody to. And.

51:57

Prosecution, whatever when it concerns. Okay,

52:00

those, but it's really up to New York

52:02

and Fulton County when it comes to does

52:04

other local cases. Next.

52:06

Hypothetical Letter: The Donald Trump wins the

52:08

election with one or more of these

52:10

cases still ongoing. Than what happened

52:13

like we have some center here who try

52:15

to pardon himself or. Instruct.

52:17

The agee to seize prosecution in the federal

52:19

cases. What about Fulton County? A New York?

52:21

I can't see how those cases guess our

52:23

and against. A sitting President of

52:25

the United States is it

52:27

would absolutely interfere with his

52:29

performance of his duties. And

52:31

so I imagine it's quartz.

52:35

Site Course. Past.

52:38

Presidents. The same reason why the Office

52:41

of Legal Counsel road in the memo that

52:43

people to come familiar with in recent years

52:45

and that you couldn't charge a sitting President

52:47

even if there was the evidence to support.

52:50

It because it would just be too

52:52

great an interference and with his presidential

52:54

duties I imagine. And that's. Where

52:56

we would come out and. Is

52:58

in fact that question where litigated. The

53:02

last question that I have comes

53:04

down to. A functional

53:06

piece of running for president

53:08

while facing all of these

53:10

cases. which is that. Legal

53:13

defense is expensive. And.

53:18

So. Trump is confronted use

53:20

campaign money to defend himself in

53:22

these cases. Are there any bars

53:24

on that? He as

53:27

so campaign finance law and what

53:29

you can and can't use various.

53:31

Contributions for to different

53:34

organizations. Is really tricky

53:36

and I don't pretend to be

53:38

an expert on it and my

53:40

understanding is that there are some

53:42

funds to some packs and that

53:44

can be used for legal defense.

53:47

Yes, there is a plausible claims

53:49

that the case involves election related

53:51

activity or in some ways is

53:53

sort of related. To your campaigns

53:55

that that is it wholly private

53:57

and you can not that I.

54:00

I'm not well enough versed in in

54:02

those laws and regulations from the Federal

54:05

Election Commission to really opine on it.

54:07

And what's more is my understanding is

54:09

that the Fcc has just really been

54:12

at lax about enforcing whatever regulations there

54:14

are, so that it's a bit of

54:16

a wild west ceiling in this area

54:19

of the law right now. Are

54:21

it actual final question? It

54:23

President's Day. In reality it's

54:25

the Friday before President's Day, but for

54:28

with our purposes, it's Presidents' Day. We're.

54:31

Tackling questions that

54:33

know. Will. The country

54:35

have has never faced before. no

54:38

president has ever faced before. Do

54:41

you think we're now in a

54:43

new era when it comes to

54:45

sort of questions about presidential authority?

54:47

And so that's how the law

54:49

either constructs or doesn't. What?

54:51

A President. Can do. I

54:54

think that Trump's presidency and post

54:57

presidency and and his conduct and

54:59

as he was trying to hold

55:01

onto the presidency have raised issues

55:03

that have forced us and and

55:05

the courts to confront. never will

55:07

never confronted these questions before. And

55:09

so it's giving us a whole

55:11

body of law on issues of

55:14

immunity and privilege. And what's Article

55:16

Three of the Fourteenth Amendment means?

55:18

Razors And my. Son's it is never came

55:20

up before and so yes, I

55:22

mean there's there has been this

55:24

constants or stimulus to the legal

55:26

system and to the judiciary to

55:28

address areas of law that never

55:30

came up before surrounding the presidency

55:33

or at the post presidency and

55:35

were those running for the presidency

55:37

and will will there be significance

55:39

to this area of law going

55:41

forward in a eventual post Trump

55:43

era? I don't know that. Certainly

55:45

see also am I think in

55:47

the briefing and the courts considerations.

55:49

of these various issues as they come

55:51

up a concern there were in a

55:53

new area era in various ways of

55:55

and so for example in the Us

55:57

Supreme Court argument last week and again.

56:00

It was last day. Over, you know what's happening

56:02

here that I didn't even madness one

56:04

which is, of course, Section Three of

56:06

the Fourteenth Amendment. Whether Colorado and Main

56:08

can throw Trump off the primary ballot,

56:10

you've. Heard in the Supreme Court argument

56:12

some of the justices expressing concern that

56:14

if they let states decide who engaged

56:17

in insurrection for purposes of knocking them

56:19

off the ballots, are we gonna be

56:21

basically allowing and contemplating many such actions

56:23

in the future against political opponents? And

56:25

I think very much thinking about what

56:28

happened with impeachment and again we just

56:30

had an impeachment of a cabinet? officials

56:32

were unprecedented and so I think there

56:34

is a concern that are we in

56:36

an area which is worth their these

56:39

aspects of the law. And that

56:41

are novel but that now may be just.

56:43

Sort of more regular

56:45

features of prosecution impeachments

56:47

I'm and political proceedings.

56:50

right? It's sort of whites in all

56:52

of these areas where norms once covered

56:55

behavior were now asking the courts to

56:57

actually a rat Concrete barriers around what

56:59

people can and can't do. Simply.

57:02

Because. No. One's ever

57:04

tried to do before. The Norms

57:06

have been busted and citizens and okay does

57:08

Last Dance and. Call. I've

57:11

gotta have very relevant place to be. things

57:13

on a good question to ponder over the

57:15

next however many months this last. thank you

57:17

so much for joining me to be my

57:19

pleasure. Doesn't a Roth is a professor of

57:21

law at Cardozo Law School. My name is

57:23

given group Tony child was in the control

57:25

room or producers are Shane Mcmahon and came

57:27

and for tv and and do whatever it

57:30

is our interest in touch by emailing us

57:32

a podcast at five Thirty.coms You can also

57:34

course tweeted us with any questions or comments.

57:36

If your friend of the show leave us

57:38

a rating overview and the Apple podcasts store

57:40

or tell. Someone about us. Thanks for listening

57:42

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