Decoding the Trump Indictments

hi everybody Welcome uh to this exciting interesting and I think important conversation sponsored by the Brandon Center for Justice at NYU School of Law together with the burn bound women's Leadership Center and the re Center on Law and security we're really thrilled to have you all here I am Michael Waldman I'm the president of the Brennan Center for justice for those of you who don't know the Brandon Center we are a nonpartisan law and policy Institute we work work to strengthen to reform and when necessary to defend the systems of democracy and Justice in this country so they work for [Applause] everyone so we're a little busy we we always said we wanted the issue of the health of American democracy to be at the center of public debate but this wasn't what we had in mind um but we're doing our best and and uh I want to stress one word in what I said which is nonpartisan we take that very seriously we are standing up in our work and in the legal analysis we do and the research and policy development for basic principles of American democracy and Justice uh and that is going to animate this conversation as well but obviously it's a challenging moment because so much of this is bound up in the politics of the day um in 2019 Donald Trump president Donald Trump said I have article two of the Constitution where I have the right to do whatever I want as president but I don't ever talk about that today Donald Trump stands as the first ex-president in American history to be indicted he faces dozens of felony counts in four separate potential criminal trials two of which deal with the attempt to overthrow the peaceful transfer of power in 2020 which we all witnessed and lived through this is a big moment in American history these are among the most significant legal proceedings in American history it poses questions about the rule of law the nature of the presidency the inter connection between Justice and politics the challenge of detangling partisan considerations from uh basic legal questions that are things we're all talking about as a country and where we are all extraordinarily fortunate to have guides uh who we're going to hear from today um as you know uh two of the leading voices on these issues here at NYU School of Law and in the country are with us um and they're here to talk about their book the Trump indictments the historic charging documents with commentary which was a New York Times number one best seller in its first week this is for Beatles level uh chart dominance which uh which is is very very exciting and you know them uh I'm sure very well to my right m Murray who uh Professor Murray is the Frederick I and Grace Stokes professor of law and the facult here at NYU and the faculty director of the burn bound women's Leadership Center at NYU she is um America's guide through the Constitution and the Supreme Court as the co-host of strict scrutiny the podcast and we'll be taping it right after this so we're can save your voice um and to her right her co-author Andrew [Applause] Weissman Andrew is Professor of practice also here at NYU um as uh as you know he was General Counsel of the FBI was Deputy to Robert Mueller during the investigation of uh president Trump's ties uh to Russia and both of them are are legal analysts in various ways for MSNBC and again we learn so much from both of you and are so thrilled that at the uh way you've taught us and at the success of this book um and I think we can kind of start with the assumption that some of the very basic facts are known to everybody not just about all the stuff that Trump did or didn't do but but even about these legal proceedings but I I want to start if I can with some overarching questions many of which you touch on in the introduction to the book and in the commentary um no president before has ever been indicted let alone this many times why uh why Trump why is this happened now and what is different about what he has done we never defer to each other well I wanted to first thank the Brennan Center and the incredible work that you do and then ALS so with respect to um your comment about the book and the fact that it's it's doing very well um that really goes to that's not a credit to Melissa and me that we wrote this so that people could be engaged and understand what's going on in these indictments and and part of what we do in the law school part of what we do on MSNBC part of what we do in our respective podcasts is that translation to make sure people can understand what's going on so so it is so gratifying that people are using the book in the way that we intended which is to have people read it so because as you said Michael what we're going through is so unique and for people to understand what's going on in the legal process which isn't normally what you have to really focus on it's so important that people understand what that is because it's it's so important to our democracy and and just like what we do in the law school um we're trying to give people the tools to make up their own mind and have the tools to make up um their own assessment of what's going on so Andrew didn't exactly answer your question exactly so he left that one for me you know why Donald Trump why is Donald Trump the first former president of the United States and I should also say I Echo everything that Andrew said about the brenon center and I can definitely back it up because I am a board member at the Brennan Center I'm very proud to be one um why Donald Trump um it's true we've never had an American president or a former American president indicted on criminal charges but I don't think we've ever had an American president do the things that we saw over the course of those four years and so you know it is an extraordinary action to take but it is also provoked by extraordinary conduct um and again an indictment is not a conviction um Donald Trump as a defendant has all of the rights that every criminal defendant has in our country we can talk about that as we go through this conversation um but the conduct alleged here and again the government has to provide allegations that it is willing to back up in court and prove Beyond A Reasonable Doubt to a jury of 12 people there's serious allegations and they go to the most fundamental aspects of democracy including the peaceful transition of power I mean you know from 2014 to 2016 everyone was singing Hamilton and there's that really wonderful song in Hamilton where George Washington declines the opportunity for a third term as president and instead he's going to you know sit under a fig tree and go back to Mount Vernon and he's going to make this transition so this country understands what it means to be a democracy and not a monarchy and that's essentially what was put at risk what was undermined on January 6 2021 the idea that we would actually be a functioning democracy where power would be passed perhaps grudgingly but peacefully from one Administration to the next and when he stepped down and also when he stepped down as commander of the army King George was reported to have said if he really does that he's the greatest I don't understand it it's weird puzzling one last time um you mentioned the standards of a criminal trial and of criminal law and as I was saying before we came up here I have always been unnerved by the idea of criminal prosecutions of former presidents there's a reason why for a whole bunch of reasons it hasn't happened up until now and one can imagine the potential for abuse and one sees in other countries the the notion that well you lose the election you're going to get prosecuted what is it about how to do this and how to do it right that can prevent the potential challenges and prevent potential abuses so that it doesn't become well you lose you know now we're going to now we're going to sck the uh the prosecutors on you and you described some of these in in the introduction so um one of the more interesting parts of writing this book together was in the introduction looking at these indictments both in terms of the history of the Department of Justice So within the history of the American judicial system but then looking at it globally uh and looking at the fact that what we are going through is not in any way unique I we're so bad at looking at foreign examples and thinking there's American exceptionalism and we're better and these other countries don't know what they're doing so um what we're going through has happened successfully in many other countries um France Italy Argentina quite notably uh just to name three uh and I would say the way we're doing it currently is pretty close to if we were grading in law school an f um in terms of the way that we're sort of holding someone to account I I I agree that there is enormous potential for abuse and you can also look at foreign models for that abuse for show trials in Russia or I spent two years in the Muller investigation focusing on Ukraine because I was um focused on sort of everything maniford related and so that has in Ukraine there was sort of the classic um show trial of uh Julia timoshenko who was a woman who was the Prime Minister who had ran against uh that the successful candidate president yanukovich and there was a show trial which we talk about in the introduction that there was both sort of a classic show trial which is manufactured evidence but there was also an aspect that I think is harder to to grasp which was that there was reason to believe that she actually did do the crime that she was charged with it's just that that crime was one that everybody who was in politics in Ukraine was doing and so and that is a form of a show trial also and so we were very focused on the issue of when which is an important one which is um how do you make sure that if we have Trials of political leaders that we're doing we're having righteous cases as opposed to show trials and there are whole variety of ways but I mean first and foremost our country as Melissa said requires it's not like you just get to say you go to jail um yes there can be um a grand jury indictment at a very low standard of probable cause but then there has to be proof Beyond A Reasonable Doubt to a unanimous jury with all of the due process rights and all of the delay that can be very infuriating to people which is part of our criminal justice system and necessary to our Criminal Justice System um and so that is one check and the other is to look at examples of other people uh other cases that are similar uh which have been prosecuted and so there just to take two simple ones the mar Lago classified documents case and the January 6 case you don't have to take it on our word you can look at the Department of Justice Records and which we then outline in the in our introduction that many many many people who have done far less have been prosecuted and so if you have a s a country which is dedicated and says at least currently that we believe in the rule of law that means that you treat like people alike and so I actually think not bringing a criminal case in this circumstance an would be would actually turn us into a Banana Republic I don't I I agree that you have to do it carefully but I think if you don't do it then you might as well be Ukraine um that it's that there's nothing about being a public official that makes you immunized from the criminal law in fact having been a public official for over 20 years I felt like I should have be held to a higher standard not a lower standard and and there is an interplay here with with the Constitution and other checks on the presidency because one thing we have learned now is that impeachment turns out to be a a weak or potentially even non-existent check on presidential abuse of power and criminality in the past that was because it hadn't been tried or used it it was it was seen as as much more powerful than we now think of it when Nixon resigned from Office rather than have the shame of being impeached and removed from office and now of course we've had um three unsuccessful impeachment attempts in the last quarter Century does that make the criminal system more important I think so certainly as a measure of accountability um you know I see one of my former students in the back there hello Patrick um you we talked about this at length last year and one of one of the upsides of the Trump presidency certainly for professors of constitutional law was that it was was like a clinic every time you opened the newspaper um you know Donald Trump was talking about resending Birthright citizenship on the same day I was teaching Dread Scott like amazing um so there were moments of like some glimmers of interest in all of it but you know one of the things we talked about at length last year in the wake of a failed impeachment trial a second failed impeachment trial of Donald Trump was that impeachment was very much a paper tiger at this point um some of the structural requirements that are built built into the Constitution and also built into impeachment make it very difficult for accountability to actually be achieved using that method and you know we saw that repeatedly and so if impeachment is a paper tiger what are the other levers that you can use to hold a president to account in Nixon versus Fitzgerald um Justice Powell talks about the idea of Legacy being important like a president will behave and conduct himself appropriately because he's concerned about his legacy or a president will behave because the media is always looking and always scrutinizing um and because of the electorate well we know now that the media has been discredited to some degree um we live in times where the media is no longer understood as a neutral Arbiter of information that might actually be as polarized as the electorate to which it ministers and the idea of legacy is a very thin restraint on a president um who can construct his own legacy and has a very willing base that that's willing to sort of engage in those air castles of Legacy with him so you know the standard tools that we have used to constrain a president just don't exist in the same way that they did when Justice Powell is writing that opinion in Nixon versus Fitzgerald and in fact some of my students actually laughed at that part of the op opion like it was just so fanciful to them and so I think that does leave the justice system and you know whether it is civil liability and we've said that a president can be held to account for civil damages we saw that with Bill Clinton um we've just never had a situation where a president has been held Lial criminally and you know we are seeing and and Andrew is right we are failing this test of having our justice system really focus on this question of criminal accountability but you know again I want to reiterate it didn't have to be that way right I mean there was enough time for all of these trials to get started um there was enough time for Donald Trump as a defendant to Avail himself of all of the rights that criminal defendants appropriately have um but there has been slow walking on the part of judges and we can talk about that certainly in the context of mar Lago and I think there have been some absolutely indefensible choices on the part of the United States Supreme Court that have effectively immunized Donald Trump well that and and we're seeing both the strengths but now the weaknesses and the increasing partisan dimensions of the Judiciary um this recent decision by the court to take the immunity case while pretending that it was Expediting it but actually in effect in all likelihood granting Trump immunity during the election year um now I'm really mad at the Supreme Court is will will will be marked by history as a extra I think is an extraordinary der elction of Duty no matter how the case comes out because as you know it is a legally easy case so so uh a professor here Ryan Goodman and I wrote something uh this week for the Atlantic on that issue leaving aside the merits of uh presidential immunity but I agree with you the idea even if you think that you can carve out some aspect of let's say Foreign Relations some area where the president might be immune in some circumstance it's not going to be this situation um and to give you a sense of how partisan the scheduling was by the Supreme Court the only issue before The Supreme Court is this immunity question the issue of the trial date is not before the court that was set by the um by the very eminent uh district judge that is not appealed it's not before the court you know in fact um although that is what the Supreme Court is has actually weighed in on instead it's just this issue of immunity both parties on that issue have the same interest which is to have it heard quickly the reason it can be heard now is because the courts realize that you're allowed to do what's called an interlocutory appeal for immunity that because of the appropriate of being uh indicted if you were in fact immune the idea is the court say you can actually appeal this now you don't have to wait till the end of and go through a trial and then appeal that's the normal rule the courts say no no no this is so important we hear this now we hear it on an expedited basis now the government obviously has enormous interest in trying people quickly um in fact just to be clear every single person in this room has a public right to to a speedy trial um so that is something that the Supreme Court has recognized and of all of the justices Justice Alo wrote the leading opinion on that that we all have a right to see defendants tried quickly and Donald Trump on the issue of immunity also his sole interest on that issue is for it to be decided quickly because he is saying I should not be suffering the appr probium for any day longer of a criminal criminal case in fact at the trial level his lawyer said that the gag order in DC is interfering with his ability to run for office so here's on the only issue that is before the court both parties and the court have an interest in speed and yet they this is to say it's lacad isical Lolly ganging um what Melissa and I say is you know get out your thesaurus for words to describe just how slow the Supreme Court is is um handling this so that they may at the end of the day have a very flowery decision about how end of the day is in June yeah exactly um and they may write something that's about presidents are not above the law and it's going to just sound great and we're all going to be thinking this is so wonderful but de facto this former president will be given immunity um because of the delay that the Supreme Court has done in scheduling this but let me let me uh ask a question in a sense Donald Trump is not the only one who dragged his feet or ran out the clock here why did it take the justice department as long as it did to bring this case why did the DC Circuit Court of Appeals choose to write a 58-page opinion for the ages and take a while to do it when a single paragraph would have sufficed if it was going to go to the Supreme Court has the the rest of the judicial system AED in thinking this was on the level or were they making decisions that were rational in the moment so I'm gonna let Andrew defend the doj if he wants to or not well like there there's I think something interesting in the nub of your question and sort of is there something about Judges and the process of judging that makes them perhaps unduly deliberative in circumstances that may require some modom of expedition and yes I think that's probably right like when Meritt Garland was appointed attorney general and you know again dragged his feet on how he would approach the events of January 6th everyone was like hm so weird that you got this guy who seems so deliberative and judgy and he used to be a federal judge and yeah that's it's in his makeup he's like by Nature I think methodical deliberative he has the additional layer of again trying to turn the doj around from being viewed as the public defender of the president into being an independent agency once again and so I think that also factors into it um the DC circuit though is interesting and you know again this is not to let the Supreme Court off the hook because the DC circuit didn't have to be a part of this at all because Jack Smith had initially after judge chuin had rendered her decision on immunity requested that's Justice Alo calling um he's always interrupting my classes so Jack Smith actually asked the Supreme Court to weigh in before this went to the DC circuit to hop over the DC circuit and render a decision because it was so extraordinary because he assumed it would eventually end up at the Supreme Court and because time was of the essence and so this was in December that he asked for that and the Supreme Court said no that they would allow the DC circuit to have oral argument and render a decision and you know many people not me but other people thought that this was a signal because the court was so bogged down already with the disqualification appeal from Colorado that they just did not want to deal with yet another Trump matter on their docket at this point and that it would be very likely given how specious SL stupid some of the immunity arguments were that they would simply just affirm the D C circuit's opinion to Su and and be done with it and I think with that in mind the DC circuit had oral argument and they did take a month like you know it was a month and I imagine it was a month because they were going back and forth but it was a very lengthy comprehensive methodical opinion that took seriously every ridiculous and stupid immunity argument that Donald Trump made gave it attention it didn't deserve and then cut it off and explained why that could not be a ground ground for immunity in the circumstance and it's 58 Pages because they assumed it would be reviewed by the Supreme Court and probably just affirmed going forward because again the arguments were so dumb and instead the supreme court allows Jack Smith to brief this it's fully briefed by February 15th and then it's not until February 28th that the Court decides it's going to Grant sersari and more importantly it's going to schedule it for oral argument for the very last day of the October term and and this was the case where Trump's attorney in the court said that he could in fact order SEAL Team Six yes that was the DC circuit oral argument in response to hyp could be prosecuted unless he'd first been removed from office by the Senators who presumably are hiding under the desk from SEAL Team Six so so one one thing that's important to note about that is there's so much focus on um what could happen in the courts what could happen in a criminal case what could happen in the in a trump Administration 2.0 um one of the things when we were writing this book that was we really wanted people to focus on was what is actually being said by Donald Trump now that this is not speculative this is not thinking about um what he might do um you have somebody who is running for office who is saying in the courts as president I can kill people um and I cannot be criminally prosecuted unless I am successfully impeached um that is his view of the presidency uh and so there's so much about his positions in court that are telling it's not just like saying what I might do this is who he is right now somebody who is under a gag order um in two criminal cases was in a gag or under gag order in civil cases who in spite of that thinks it's appropriate to attack um and threaten violence with respect to judges jurors Witnesses family members most recently the daughter of a judge um uh the the idea that this is a somehow this is controversial and or like somebody this is should be something that is so fundamentally wrong to every American and we know it now you don't have to speculate about who this person might be frankly you don't need a criminal Tri to know who he is um the courts and what he's doing now in court tells you exactly who he is and I want to turn to some of the other cases but I you have both said that you think that the case itself should it go to trial is tightly drawn uh do you think it relies on novel theories or or is it uh you know built for for for Effectiveness the Jack Smith election interference case January 6th case um I mean Jack Smith made some very pointed decisions to focus only on Donald Trump to focus only on four criminal charges because he wanted it built for Speed um so you know there are a lot of individuals who allegedly participated in the election interference scheme who are mentioned in the indictment but are not indicted themselves they're unindicted co-conspirators so I mean that's a very conscious choice that about making this trial actually happen because you're interested in accountability of this one person who has now put himself forward as a candidate for president um I think the other indictments though are also I I think if they were to go to trial could be dispatched with relatively quickly I mean Mara Lago to me is an open and shut case even leaving aside the questions of how to present classified information to a jury and you know the fact that judge Canon has managed to draw this out to such a lengthy degree I mean that is eyebrow raising and and people should have real questions about that and again like this is me back on my judge hobby horse you know the fact that Jack Smith Drew judge Cannon as the judge in the southern district of Florida is a factor of trump level politics like there are three vacancies in the southern district of Florida right now that's the court where judge Canon sits and they can't be filled because Florida has two Republican Senators and there's a blue slip custom where in order to nominate someone to The District Court the home state senators have to provide their scent through blue slips and neither Senator will do so for a Biden nominee or at least has not at this point which meant that when this case went in the wheel to be assigned a judge there were only three judges it could be and one of them was e Canon so you had a one in three chance of getting e Canon and she'd already had a reputation she already been rebuked by the 11th circuit for just an outlandish decision in favor of Donald Trump with regard to the search of Mara Lago and she wound up being the judge assigned here let me ask a question about this case and this goes back to what what you all were saying before about how you know something is not a selective prosecution how you know something is not um people being prosecuted for something a lot of other people do we know President Biden we know vice president Pence also had classified documents also had them in you know sloppy storage I always say if you walk around Northwest Washington DC and go in the basement of a lot of houses k kick open some boxes some documents might tumble out why given the fact that there's over classification that many former senior officials think that they can kind of play it a little loose why isn't this what's special about what he did so I think the the first place to start on that is what does the criminal law uh provide uh it is not a crime to do something by accident um if you mistakenly take home uh and you're in the intelligence Community you take home a document when packing up your bags and you find when you get home there's a document that was marked secret or confidential or even top secret although I find that harder to imagine just given the labeling and the sensitivity but that's just not a crime um if there isn't knowing and intentional um retention or knowing an intentional taking that's just not a crime you're just not in the criminal world it's not to say that it's good it's of course those documents need to be kept under a locking key and um and there can be ramifications in terms of getting clearance going forward um but you're just not in the criminal realm at all so Mike Pence case is like a perfect example there just was no evidence at the outset as to any sort of men's Rea to put it in in the in our law school terms uh now of course anytime you find a document in the wrong place that that gives you the actus race the the action but you know so there you will raise the issue of gee I wonder if it was intentional or not so I'm not in any way saying there shouldn't be an investigation into somebody's um someone's mental state um but that to me is what differentiates uh Mike Pence from Joe Biden um on the one hand and Donald Trump on the other where you have such absolutely clear evidence in fact his defense is not that I did not know um his his you remember when there was sort of a defense dour when this first happened which is oh these were planted that is now changed to they're mine and I took them um well that's men's Rea um you know that is intentional conduct and there is not one but two types of obstruction and um that are alleged in the indictment so I completely agree with me Melissa that this is um least on paper and based on all of the reporting what we used to call in the business a rock Crusher I mean this is just you there's just no way and with any Fair judge and jury that there would be an and the final point to to sort of how do you know that this is a righteous case versus a show trial is um we point to in our introduction slw of of cases at the Department of Justice where people are in jail now for doing far far less than uh the former president is alleged to have done and to my mind that is why I mean the idea that somebody that seem senior um has done this if it can be proved is um so so incredible and there's sort of one this is a case where I know the January 6 case is is the most important in terms of our democracy but having being in the intelligence Community when I was at the FBI um and and there is a problem of over classification at lower levels I can tell you when it gets to top secret and top secret compartmented information that information is I still remember the first time I read and you you you go a special room you sign in you have no electronic equipment it's incredibly um carefully um orchestrated um I felt so I felt so uncomfortable even having access to that information because I was so concerned about what I inadvertently say something or do something because it was so important to our national security um that is like safety especially you know we're all here in New York an enormous concern about when I was at the FBI every day was about not having a bomb go off that was like the the number one thing that you thought about day in and day out that drove what you were doing every single day the idea that you would take those documents and put them someplace that was insecure it it's it's hard to articulate how fundamentally that's antithetic IAL to why you're a public servant just to add in addition to all of that what I think what makes us different is the failure to return them when requested I mean like that's to me like not just having them like the question of mental state obviously needs to be established but the failure to return them when it's they're identified and it's clear that you're not supposed to have them that too goes to mental state and then what's also alleged in that indictment and in the superseding indictment is that there's tremendous efforts to continue to dis to hide and sequester the material and information that would show that they were hiding and sequestering the material from those who sought to recover them so they could not be more apples to oranges I think um yeah full stop so now let's turn to the two State cases um the the Fulton County case in contrast to the indictment solely of Donald Trump 18 people were indicted originally it is a state RICO case many of these people didn't even work with each other or know each other um what does that case show us about whether there's something different about State prosecutions versus Federal prosecutions of former presidents and how on the one hand it's a potentially sprawling case on the other hand it was a conspiracy it was in fact a big conspiracy to overthrow the election what was that a wise judgment on their part or or what what were they thinking when they brought those cases of course they've gotten guilty pleas already from a number of people so one thing to recognize um and again this goes to article two power of the president is that the president can issue pardons for federal crimes I'm unclear whether a president could issue a self- pardon for a crime that he was convicted but maybe we find out I don't know um that's that's an open question that's January 21 2025 the day we find that out we'll find let's hope we don't um but with regard to State prosecutions and State convictions article two does not extend to that so to the extent that you have the state level prosecutors willing to bring these prosecutions against Donald Trump I mean I I think that is one accountability for their constituencies and you know the idea that Georgians were deprived of the full or like there was an effort to deprive Georgians of the full measure of their vote that is something that requires accountability and I think it's also and it could probably was very much a consideration that these were not charges that Donald Trump could evade by becoming president or pardoning himself or directing the doj to drop a prosecution which is the case in all of the federal prosecutions so there's that is it a sprawling criminal conspiracy it sure is and there could have been a conspiracy charged in the federal cases as well and you know in in the context of mar Lago there is a conspiracy charge in the Jack Smith January 6th investigation or inter election interference case there isn't and that's a purposeful choice but fonnie Willis who is the da in Fulton County Georgia is very skilled in these Rico prosecutions she's done them before with regard to an Atlanta teacher cheating scandal she's also done it very recently um with young thug a rapper in Atlanta it allows the prosecutor to tell a story to the jury that brings in all of the different elements and shows that this isn't just about one person but rather about a far-reaching operation in and outside of Georgia to subvert the election and I think you get perhaps a clearer picture of how profound and extensive the effort to subvert the election alleged was through the lens of her indictment much more so I think than Jack Smith's I also think that the two the the federal January 6 case and the state January 6 case work very well together um because picking up on something Melissa said which is that the if Donald Trump were to be reelected um he can pardon himself or he can just tell he can pardon himself I'm sorry question he could try to but he doesn't really have to reach that he can just say to the Department of Justice get rid of this case um and so all the the two Federal cases he can he can just say they're done um he can just order his attorney general to get rid of them the state case is he doesn't have that power with respect to um any of the charges and even though there's an argument that I think would likely Prevail that the case as to him would be stayed while he's president all of the other people are going to be left holding the bag because those people that case goes forward there is no ability for the sitting president whether it's Joe Biden or Donald Trump to interfere with that and so all of those people the additional pressure on them to plead to have to go to trial and to cooperate or just or just to be held to account um is something that will go forward so um fonnie Willis was in a unique position to go forward with that uh having been in a situation where we were investigating somebody who had the ability to Pardon his way out of this and to dangle pardons uh that is something that can't happen at the state level um so I think that there's a real reason that you see the the different strategies of Jack Smith and fonnie Willis so we're going to turn to audience questions in just a second thank you so much before we do I want to quickly uh turn to the New York City based prosecution which in in fact is going to be the first one to move forward on tax day and uh you know uh Alvin Bragg is somebody we know very well we have enormous respect for he was not gung-ho to bring a prosecution if there was not a grounds for it but he felt this was the right thing to do are the legal issues in this case as some critics charge novel or is this actually as many people who are familiar with the New York City criminal system say oh no this is actually fairly standard type of prosecution what what is novel here uh and and what is what is cut and dry so it's standard fair for the Manhattan DA's office to prosecute individuals for falsification of business records which is the core charge in the New York indictment um again it happens all of the time what is more novel is that in this particular case in order to render this a felony the Manhattan da had to do what is known as bootstrapping which is to say connect the falsification of business records which is ordinarily a misdemeanor under New York law to the commission of another crime which then escalates the falsification of business records to the level of a felony and so the bootstrapping to the other predicate crime which is seems likely to be some species of election fraud that's sort of the unusual thing here and and I think it's very likely when this trial starts you'll see Donald Trump's lawyers making arguments that in fact you cannot bootstrap to election fraud whether at the New York state level or if you know they may make arguments that what is actually being bootstrapped here is some federal election charge we'll find out more about that that's going to be I think the real Crux of it so it is novel I guess in that sense but the Manhattan DA's office prosecutes people all of the time for falsification of business records this case I think unfairly gets poo pooed as being you know kind of a nothing burger and I don't think that's the case I mean it's easy to poo poo it because the facts are so salacious it involves an adult film star it involves Michael Cohen um who himself has some issues and you know will I think be a real Target for the defense going forward although that's not unusual for prosecutors either um but it actually is I think a quite serious case and I think Alvin Bragg was right to bring it and as you say it wasn't like Alvin Bragg was itching to just bring any case I think this goes for fonnie Willis as well um you know these are African-American prosecutors in Alvin br's case the first African-American prosecutor to ever serve in this office in the city of New York he knows he's hypervisible he knows everything he does is going to be scrutinized she fonnie Willis likely knows it too and you know we've seen what has happened there but the decision to bring these cases in the face of those external pressures might suest suggests that they believe quite deeply in the strength of their case and their ability to prosecute these charges to verdict Beyond A Reasonable Doubt and so again I I think that is worth mentioning these are two prosecutors with a set of external constraints that Jack Smith does not bear and for that reason I I think the fact that they're going forward suggests that they believe very strongly in their cases and the way Alvin brag talks about this case is not as a hush money case but rather as the first iteration of election interference that we saw from Donald Trump and I think that is really important and it is the better way to think about this case and if you think about this case as the beginning something that happened before Donald Trump was president and then you see the other indictments which document conduct that happened during and after his presidency what you have is a tableau of alleged criminality that spans before during and after and sets out a kind of pattern in practice that is really alarming if proven Beyond A Reasonable Doubt or maybe even if not proven Beyond a reasonable doubt it's worth noting that the um trial judge and the federal judge who uh was deciding uh the issue where Donald Trump was trying to remove the state case to federal court so judge helstein was the federal judge uh judge Maran the state judge both of them in um deciding pre-trial um issues said that this was an incredibly serious set of allegations and I agree with Melissa it's only in comparing it um and so it's it's hard to say gee you know these are really small potatoes when you're thinking about okay yes compared to overthrowing democracy it is or retaining top secret information at a beach club about our nuclear capabilities and nuclear capabilities of our adversaries okay yes it pales in comparison to those two but that's you know that's really small recompense in terms of thinking about warm these charges that's very well said both of you so I've got some excellent questions uh from the folks here a first one and and it's been implicit in a number of the things you've said do you have thoughts on how the different trial judges in these cases have handled these cases yes would you like to share any of them grade them Andrew um well you know maybe I'm I'm going to rather than take a huge swipe at judge Canon I just want to make a plea for to to those watching at home the audience said go ahead yes um I I wanted to make a plea for something thing that I saw in the Mueller investigation so when you do high-profile matters um I I saw judges who really Rose to the occasion uh we were frequently before the then chief judge barl Howell and a District Judge Amy bbon Jackson and within one or two court appearances they were so good about explaining to the public what was going on um about the first thing they would do would talk about what what the proceeding was what the arguments are that are being made and then were incredibly detailed in as plain English as possible about what they ruling and why they were doing what they were doing so that so that people understood in many ways it was like what sort of what we're trying to accomplish in our book they were doing in real time in Court appearances and um when I look at what the Appel division just did with respect to Donald Trump's Bond one of the I think a real disservice um that breeds enormous cynicism about is he getting disproportionate Justice um so as I've said there there's sort of I used to think of um our system of justice as two tiered with sort of you know rich white people getting enormous benefits um and now it's sort of like there's there's um rich white people and now another third system for Trump and um and not explaining um to the public why they did what they did I mean they just issued an order they said here's the result but there's no explanation and that at a time when Donald Trump and his acolytes are spending so much time attacking the Judiciary uh and where that is one of the last standing checks and balances and we're seeing it frayed in so many ways whether it's the Supreme Court or judge Canon it's so incumbent on judges to go that extra mile and that extra step and I think that you can look to um the examples that were set by other judges understanding that whatever you were doing before in cases where the public wasn't really looking it's it's really important to um to reach out to make sure that the public understands what is happening and and that is actually one of the questions is actually about the teaching nature the public education nature of the indictments themselves and your choice to basically build the book around an exegesis of these you know legal documents why is that important and how do how do we or is it a futile mission to try to show people who might not be inclined to start out thinking that this is really serious and Beyond politics how how does this play into that so you know we were blessed with some really gifted ghost writers Jack Smith fny Willis and Alvin Bragg um they wrote incredible indictments I think recognizing that the eyes of History were on them like these are speaking indictments in every sense of the word and that they are talking beyond the court beyond the jury they're meant to be read by the public um we recognize that you know some of the language and and the way things are presented might be inaccessible to those who didn't have a law degree or even those who aren't um well versed in criminal law even if they are lawyers and so we tried to really provide explanations that would make the indictments accessible so that people could follow along because we thought that's what they wanted we thought like that's that's exactly why they were framing the m in this way they wanted the public to engage with them um on all sides of the aisle and you know like I would hope that this is a book that even people who are deep deep in L Maga base would want to read for themselves to figure out like you know what's here yeah do the research you know or as we say in in con law do the reading um do the reading we say that in criminal law also yeah um do they do it we'll figure it out we'll see tomorrow um you you can decide for yourself we're not telling you how you should come out and we're not telling any juror how they should come out we're simply trying to help explain it um it is notable we have not yet been invited to Fox News to discuss this um that's unfortunate because we weren't doing this project because we wanted to stick it to Donald Trump we did this project because we believe in the system we believe in these institutions we believe as a defendant he is entitled to exercise his rights to present a vigorous defense to confront the evidence against him and to have Clarity on the immunity issue if one exists but what we did not want to do is have these documents out in the wild and people just not know what to do with them and all of we live in a climate of disinformation the indictments themselves could fuel that without sort of scaffolding for people to read them and understand them so was one of the things that's really wonderful just to because we're at a law school is the New York case that is coming up really has some excellent lawyers on all sides and that's the way it should be um one of the uh Trump lawyers uh Susan necklace is a very well-known very well-respected defense lawyer in New York um the prosecutors are also very experienced also with great um reputations that's the way it should be um just to go back to we referenced George Washington well John Adams you know famously represented British soldiers at a time that they would be viewed as you know GMO detainees who engaged in alleged terrorism I mean it was extraordinarily unpopular and was still president of the United States so part of our system of if you believe in the rule of law if you believe in due process for defendant um it's going to be I think really wonderful to see a trial where the defendant is you know fully represented and makes the all arguments and it puts the government to its burden because that's the way our system should work and what the jury does the jury does well this book is a testament to all of our faith in the rule of law and really a significant contribution by both of you to the the court of public opinion to to the broad if we can have it the broad acceptance and cherishing of our constitutional values at a time of division polarization partisanship and everything else we're really grateful to both of you for doing it for being here with us than it it reinforces the power of books even in a time of of tweets and and other things as a way of uh as a way of of cementing and and making permanent uh a lot of what we care about um so thank you to both of you thank thank you thank you

Channel: Brennan Center for Justice

Views: 38,206

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Id: V_S-rbNsac4

Length: 55min 36sec (3336 seconds)

Published: Tue Apr 09 2024