Ryan Goodman on The Trump Trial: What Might Happen?

[Music] thank you hi I'm Bill Crystal welcome back to conversations I'm very pleased to be joined again uh by Ryan Goodman a distinguished law professor at NYU former special counsel at the defense department co-editor of just security really one of our leading commentators on many aspects of constitutional law and national security law but in this case in the last few years really a leading and really thoughtful commentator on the various issues raised by the Trump presidency and I guess the Trump post presidency and six weeks ago we discussed the documents that tomorrow Lago and I think that conversation for now stands up well and in that conversation I think you said well there'll be more indictments coming and that even though the documents case has will have its own zigs and zags January 6 is maybe a different level of complexity and I think that's majored out to be the case so we're gonna talk about January 6 where we're just for the record we're having this conversation on what Thursday August 3rd Donald Trump was indicted two days ago uh uh for the for January 6th he's about to just after we finish he'll be showing up in decent in the court in DC I suppose to present himself whatever the legal term is for that but anyway Ryan thanks for thanks for joining me again it's a pleasure to be here with you and to have a conversation so I've been I'm here for following this and contributing so much to the debate and discussion and explanation really of what's Happening legally and I really recommend your uh your Twitter feed which then links to some of the other uh much more elaborate obviously discussions of the case and the charges and the law the underlying law and so forth but let me step back and just say someone I was talking to last night I was saying I was good work Jack uh commentary so interested and she said to me well but does it matter I mean what is Trump just going to skate again doesn't he just skates on everything what's the answer is is this ultimately much you know much to do about nothing in a sense or not nothing but but much to do that's not going to lead to something or is this or not yeah sure thing that's a great question um so I do think at some level we're already at the doorstep of accountability is the way I've actually thought about it um uh in the sense that here we are at a place that people even thought this would not be possible that he has now been indicted as a former president and was Garland really up for this um and the like but in terms of this now coming through with meaningful accountability I think there are two ways in which it could easily go down and and that there's a full trial and a conviction and the first way is he does not uh win the White House if he does not win the White House I think he's going to be convicted um in the D.C court and I think that conviction for the January 6 2020 election interference is going to land him um with a Criminal sentence of imprisonment it would be more more most likely I had I don't know how he gets out of that uh and I think that's very real possibility so much so that when the brag New York DA's case landed there was a split of opinion and some people were saying it's a strong case as we case it's a it's an unfair case it's like to prosecution the issue here is Kenny actually outrun Justice can he get into the White House and that's his best Prospect of evading true accountability and then I do think there's another good likelihood that this particular case does come to trial and reaches a verdict before the 2024 election a few things have to kind of cut in the right direction but there are reasons as to why I think this trial can do that and that this is not a normal trial in the sense that the justice department is poised to have it go forward in a speedy basis because of the public interest and importance of it for the public to do so well that's really a wonderful way to frame it I think and I want to come back to the strength of the case which is obviously important but let's let's get right to though in a way to the maybe what's more I suspect to the front of people's minds which as well but can't you just delayed will there really be a trial before the election and maybe it'd be good if you were accountable even after he were defeated if he is but of course if he's not defeated he can pretty much end it all presumably at the federal level so uh how does it play out give me just sort of a sense of why are you uh reasonably why do you think this could go faster than a lot of people might have thought given the complexity of the charges and we all know that these cases can be delayed when defendants want them to and so forth great and um I'm also happy to talk about how I think if he does win the White House he can the mechanisms he could use to get rid of both federal and state uh prosecutions yeah so I think that there are a couple factors that are different here first is Jack Smith's demonstrated interest in moving these cases along expeditiously and he has said so explicitly and I assume he will do something in the January 6 case that he's done in the classified documents case which is to very much front load a lot of the information that prosecutors are supposed to turn over to defendants but front loaded in the sense that give it all to them now um that he's basically done that with a document dump in the classified documents case including documents that there's only an obligation on the prosecutors to turn that over to the defendant on the first day of trial so it's a strong signal to the judge for example that you know we are ready to go and this is unusual in its speed that it can go um and uh giving the defendant better than normal do you process protections so it's not a trade-off in that sense so I think that's one factor a second factor is we're in DC um and the DC uh district court and court of appeals has heard and decided upon a number of the Constitutional questions that would otherwise potentially pop up as threshold matters and they in fact they are clearly in favor of the prosecution so if we're talking about a turning client privilege as it applies in and private or as it applies to the White House and the president being decided in a criminal context if we're talking about evidence and executive privilege being decided in a criminal context in this particular case with multiple defendants and their evidence and with booster Rockets of USB Nixon which was about a criminal trial and the interests of Justice in that sense which is even greater than I would say the interests when we were just doing it in a criminal investigation so some of the legal issues I think are already kind of pre-baked in and those are other reasons as to why this could go in an expeditious Manner and we know the judge already and she seems to be a kind of a judge that can easily run a fast courtroom uh or even at normal speed so I I think that there are other signals that this could go let's say in something like March of next year another signal is that the Manhattan district attorney Bragg has sent a pretty explicit implicit message in a recent interview that he'd be willing to move his date of his trial in the interest of Justice the interest of Justice being that the January 6 case is much more important than his and that also gives us a sense that from a prosecutorial perspective he's thinking that's this that's the space in the calendar that would be potentially helpful to open up so you think it's actually I can ask you what does expeditious mean when man's expeditiousnesses and others you know it's four years that'll really be Exposition with some of them are here Allah your law professor colleagues say sometimes you know complicated case like this but you actually think that Smith at least has in mind he's structured in a way to let it move very fast and if the judge and the law is clear enough that the judge can go ahead and move it pretty fast and whatever appeals Trump might pre-trial appeals Trump might try to take uh don't necessarily slow it down much is that that's basically your view that's my view um but these are views based on probabilities and projections and I'll be looking for things like um Jack Smith's stipulation of how long he thinks the trial should last um that's a big one as well yes to talk about that what should people like us who are less burst in this look for over the next days weeks month or two or three in terms of what would be the signal that this thing whoa this really is moving to a early 2024 trial or not happening I think two pieces will be what date the judge sets for the trial which should happen soon within a few days we should actually know that so the judge will set at least a tentative trial date alternative grade it's like a date that could be moved basically it's a surreal distance yeah yeah yeah yeah what would you think I mean that could be as that could be pretty soon you think I mean yes I think there's nothing wrong with judges um nothing wrong it's actually normal for judges to communicate with each other so they could communicate with a Manhattan judge and then I think she could set it up for March and it also might depend on the other data point which is uh does uh Jack Smith follow through with what I'm describing which is um within the coming days announced that he's handing over all sorts of information and Discovery to Trump um that would be another strong indication that we'll have and then I'd say within the next few days maybe a week and then a third factor which has a lot of different dimensions to it is what's going to happen to the um identifiable but unnamed co-conspirators and there's a ton of pressure on them right now and uh now that there's an indictment that names them as a conference murder and shows the evidence of their criminal wrongdoing it according to the justice department if they flip within the next few days I think that would be um very important to understanding just how strong the case is and how much it'll move forward and also move forward in a way in which they're not going to be multiple co-defendants potentially and does does the justice department get to keep Trump as the singular defendant in this case is also very important yeah so that's people I've talked to from prosecution World say that that's have been struck by the co-conspirators and the question of what their fate is and so so just explain that a little more so a what's exactly is the pressure on them to flip why can't they just sit there they're not indicted well they may be indicted but I guess do they flip before their diet or after they're guided and so how do you avoid the complexity of that in multiple defendants at one trial which I guess does tend to slow things down doesn't it yes it does and I do wonder if um it seems as though the reason that they just answer your last question first I do think that there's a good chance that Jack Smith decided to just indict Trump alone is that they are planning on and hoping for just uh Travis only got him as a defendant um and maybe they were also trying to see who the judge was um so with this particular judge maybe it's not as concerning to them to have multiple defendants um and um then the next question is what's going to happen to this co-conspirator so or what has happened to the co-conspirators um uh recently the uh the uh lawyer for um John Eastman was asked by Aaron Burnett last night in CNN whether or not he his client he expects his client to be indicted or things like that he says oh it has been indicted says no he hasn't the answer is you don't know maybe he has and it is under sealed is that right absolutely so those co-conspirators could be indicted coconuts burgers and maybe that's why at least for some of them the um indictment doesn't mention whether or not they are indicted or unindicted because if they mentioned it for some I mean they may have to mention it for the others or you know importance of absence we would then get to understand an inkling that some of them have already been indicted so that one scenario one some of them have already been indicted scenario two they have not been indicted but this is now the time in which the justice department will say here's the indictment we will indict you if you do not this is this is your moment um and here's your here's a separate draft indictment this one's just for you so you can see what we've got and we you can see the charges Jeff Clark he's going to get I think an independent charge false statements you were trying to have the government make a false statement about that it had just the justice department had already found significant election fraud that's yours uh plus some of the other stuff um and then that's the time for them to potentially put up they could also flip post an indictment um the other part of this is uh speaking to former prosecutors as well um I read the indictment the following way and I know another a number of other season people did too which is if you read the current indictment there are a number of criminal allegations against those co-conspirators that do not necessarily connect back up with Trump directly much so that I you can you can even imagine that what happened here is that at one point this document did include code other co-defendants has indicted because it reads that way they're stuffed with Giuliani for example to make this concrete where he is communicating with cheese bro on the idea that they are very much deliberately planning to have these folks into these false certifications of um that they're the electors that are not contingent on litigation the two of them know even if we lose in litigation and we're still using this for January 6. but that doesn't directly tie it to Trump but it's golden evidence against the two of them um for charging them and how does it have work when someone flips so if you're you know John Eastman or anyone and you're sitting there and either you realize now or you're someone approaches you it explains to you how dire your situation is is it would we know if someone has left would would that person make a public statement would we just come out at the trial what's what's the story um we would not necessarily know they flipped and would have to read the tea leaves indicators um so by way of example two of the strongest indicators that Mark Meadows has flipped and is cooperating R1 he is not named as a co-conspirter and in fact he comes out smelling kind of like a little bit like a rose in the indictment so that sounds like he's on their side as a government Witness and the reason I say that is because if you like look at the gender six committee report and like and I've looked at I think every all places of evidence that are publicly available he has as much criminal liabilities Rudy Giuliani um hands down the idea that he's not a co-conspirator that's a that's a strong sign and then the second is um the reporting by the New York Times and CNN New York Times uh CNN in May and then New York Times in June that quote unquote four months for uh the Trump team has been out of contact with Meadows and does not know what he is doing with respect to the investigation and we know on top of that that he has testified before the grand jury on according to ABC News and both um the Mar-A-Lago case and generous six okay why is he not communicating with him if he's taking the fifth um in those uh grand jury appearances then uh he surely would be telling the Trump people to actually keep them on his side um and the indictment has a little bit of those are the two main ones but there's some other indications that Mark Meadows has flipped for example there's a communication directly between Meadows and Trump mentioned in the indictment quotation in quotation so it's a direct quote where Meadows is in Georgia I think in Cobb County and he tells Trump that the um election officials there are engaging in are carrying out their task in an exemplary fashion sounds like that's coming straight out of Meadows and or they would not say that if they didn't have Meadow's testimony on that um so Meadows I think is flipped um and then uh it might be difficult with these other people whether or not they'd ever be doing it publicly but it also maybe the special counsel of the department Justice could release as the Mueller team did the plea agreement with the entire statement um of what that person is owning up to um so yeah and I we can also discuss one other piece of this that might be interesting because I don't I don't want it to sound does it feel like it might be sounding in some respects very optimistic um about how these things might go down in terms of the interests of justice and getting a trial um and accountability Meadows to me actually also poses a little bit of a difficult case I'm worried that uh he did not own up to his wrongdoing and does not have a plea agreement in which he has said yes I committed these crimes with the president or these engaging these illegal acts that the president or elicitorium illegitimate acts with the president that doesn't read that way and if that's the deal that Jack Smith struck in order to get Meadows on side I do not know how strong of a witness he will be because that's not credible um and Trump will say well if he was Mark Meadows is saying he's an innocent person here in the witness stand you know the Trump's lawyers would say well my clients did the same thing he did so he's just as innocent but it sounds like you think that as the case moves forward these co-conspirators uh are important I mean that they are potentially their potential Witnesses against Trump they're on the hook here there's a lot of there will be a lot of pressure on them I suppose I mean if you're John Eastman now and you're just talking to your lawyer or to your best friend I mean what do you think uh absolutely um I think it's similar to the classified document's case the amounts of pressure on a person like Giuliani Eastman Clark cheese bro is enormous that in a normal case I think those people would flip their defense counsel would say you need to strike a deal here and you need to be the first one to in that door to strike a deal before the others do um and this as well very much so in the class of my dog in this case and the only reason that I think they wouldn't do that is because the principal defendant in the case might be the next president who could pardon him or somebody else who comes into the office uh who would pardon him or shut down the Justice Department's trial slash investigation at that point yeah Trump's openness about his willingness and eagerness he might say to Pardon everyone basically who's been involved when we're the other in January 6. in that respect uh yes it helps them a lot right I mean and the past experience that people think people got pardoned and if they stayed on on side 100 yes yes yeah it's a it's a rational calculation that they can include that as a factor but it is different from a normal case in that respect I mean whenever you think of Bob mob bosses have other ways to putting pressure on on someone that's not to flip like they could be found in the you know in Hudson River or something but they don't they can't literally pardon them right so it's a it is so let's talk about let me just for a minute on the what could go wrong so to speak in this scenario of people flipping at a pretty quick trial at a Jack Smith living with great dispatch and having it already seen up and a judge who wants to get to the trial I guess I yeah I mean how much ability does Trump have and the Trump legal team just to throw up a million different arguments you know it's First Amendment and uh he really believed this he told this person that he did think of the election was stolen how can this is all illegitimate and uh does that stuff just get dismissed very quickly or could it really get tangled up and complicated appeals or does that stuff not even get appealed before the trial I guess that's one thing I'm a little fuzzy on personally um and then what else could go wrong so some a lot of those questions I think could actually be handled in pre-trial Motions like what are defenses they can and cannot raise for example and um but they wouldn't appeal it it would be maybe appealed after trial so we'll still get a verdict um the ones that I would be thinking about are if he can if Trump can claim anything that's in the realm of some kind of constitutional immunity or the like and that's a pre-trial claim that the court does not even have jurisdictions that would be prejudicial to him as a defendant for the court to even have the trial you can't remedy that after a trial you have to remember it beforehand um so that's that's potentially kind of one area which the there's some discussion about where that would go but we can already tell from the Department of Justice's filings and other in civil cases that they've decided they've already fully uh briefed themselves in the courts and what their position is on that hmm and so you don't think the defense has a huge opportunity to really bollocks this up necessarily um just by kind of legal motions and the normal well I think a lot of that depends on the judge and the management by the judge um just like in Mar-A-Lago um they were doing things that I to me are some are you know unforeseeable like the defense counsel not even filling out his forms for a security clearance um you know um you know yeah um and but if it was a judge which I think might happen in DC who said um look if you don't fill out your form by the end of tomorrow you're off the case it's a prejudicial against you and we're moving forward I'm not going to tolerate that and we've seen many more judges now across the country not tolerate uh Trump Shenanigans of using these kinds of devices within the legal system to try to slow things down um so I think that would be another uh thing to look for in terms of what is the judge's disposition uh toward those kinds of shenanigans you mentioned that well this shouldn't be in court at all and I guess a slightly different version of that is well it certainly shouldn't be a court of law during an election campaign and you say March and I think Super Tuesday in the Republican primaries and that's not quite like the general election but it's a real election and how can he be expected to show up for such a trial and prepare for it how can voters be expected to know what to make of it if they're voting one day after either you know a strong prosecution witness or a strong defense witness isn't that shouldn't the whole thing be put off is that I assume he'll make some version of that argument I think he will make a version of that argument and I might be in a different place on this than many other people I think many people would disagree which is I think that judges could come out on different ways on that so he did make that argument for judge cannon in Florida and I could imagine that some just at a random selection of judges on the bench some would say that is a legitimate argument I will take it into account and we need to think about the calendaring of this vis-a-vis this national election also if it gets too close to the election maybe it's a time for us to kick it over to post the election and I would imagine there's another set of Judges would think no way this is not a consideration at all judge Cannon said that she wasn't taking it into account in the oral argument even instead to Trump's lawyers move on give me a different argument because that argument's not relevant here because I didn't quite understand the biases that you're thinking of to kick in with the jurors pre versus after an election but in her written order she just basically says I'm not deciding that now so if there are delays that are expected and unexpected post her date in May and then it starts to kick it and then kick it again and she says oh no look it kicked it just a few weeks but then in those next few weeks my calendar is totally booked so now we're thinking about August or September then she might revisit that and I could see other judges um coming out similarly with actually saying this is a legitimate factor for me to consider but I do think there are other ones who would say kind of like the justice department which is singing I think implicitly not explicitly exactly there's a national election this is a crucial issue and the voters should know this information before they vote preferably as soon as possible before kind of a super tuesday-ish thing preferably before the Republican convention and then preferably before the general election you could imagine that would be a different mindset but I don't think there's there's not a there's not a playbook for this or a guidebook or something one can teach in a court in a law school classroom that says this is you know the right answer I don't think we've heard about these justice department guidelines that you shouldn't bring a political case what is that 60 days before an election I think but but this case has been brought now so it's not absolutely that's exactly yeah I don't think it applies because it is about like taking an overt action and that might be something like an indictment um or even um uh not even an indictment but maybe even bringing evidence before a grand jury because it can so easily leak within a 60-day period but that's like an initial like as you're suggesting an initial overt action that announces something suddenly that nobody else is aware of um that could that as a tool in the hands of a justice department with biases or um ill motive could be very dangerous I mean it seems to me it's a total Layman here that the the the the the uh credibility or the weight of the argument that we shouldn't do this in the middle of election campaign goes up as you approach the general election as opposed to the primaries and and sort of after the Republican convention um I don't know that should be a get out of jail free card or get out right delayed you know delay until after the election card but you could sort of see people saying well he's a nominee of one of our two major parties here I mean you could he's being prosecuted by the justice department albeit it's a special counsel it's independent all that that's that's uh in the administration of the opposite party and maybe the likely the opposite candidate that just seems untenable I mean I guess people might I mean a judge in good faith could think that that was not a simply a an expedient argument for Trump writing that there's some some way to that argument I think yes I I yes I'm gonna agreement with you on that yeah yeah so that would suggest not that you know he might he or she might still decide that it's outweighed by the public interest in getting this thing done and uh that you otherwise but um uh and giving guidance in a way to the voters but uh or just having a fast draw which is itself something that we have yes the system does have a certain belief in right I mean absolutely and the other one that's also kind of interesting is just the interregnum period between an election and January 20th so if they think that the trial could take place within a month I could imagine a judge like starting to really focus in on that question would say well that's an untenable position because if he loses it's okay in a sense but if he wins now what um yeah so and therefore we needed to say this beforehand but it's it's complicated that just as you say I think good faith uh reason although decision reasonable determinations or ways to look at it from either side but you think Smith really has tried to build it as much as he can consistent with you know legal rights and for variety and so forth you know for a fast and he said that himself I think a speedy trial right and so which is what it is not just his prerogative but in some sense is his obligation now under the law I mean you're supposed to be able to give defendants a speedy trial yeah especially give it to defendants and there is a part of the law that is explicit about the public interest in the speedy trial as well so for the public to know yeah and just one more thing on this in order to come back to a couple other aspects on the trial itself what I guess it'll look like a normal trial I mean it seems kind of yeah it seems like such an extraordinary thing he'll be sitting there with his lawyers and the prosecution will be there and they'll be calling Witnesses and having cross-examination and like other trials that we've either Seen On TV not in the case of Federal trials but uh but but see transcripts of or read accounts of yes um and somebody recently asked me and therefore in the witness box do you think there's going to be his own former vice president and it will be that kind of a spectacle um uh that it and it said a normal trial but spectacular and suspectical in that sense um with one um wild card I guess and the one wild card is um having spoken to experts on this so I don't know this firsthand in my own research the federal rules of criminal procedure do not provide for a public video um broadcasting up a trial but the Chief Justice of the Supreme Court apparently can overrule that so I imagine that there's going to be a lot of interest in saying that this is a special case it is not a normal case and that the public has every reason to know and Trump's lawyers have actually suggested that as well I think they did that maybe it's more in the Mar-A-Lago case first but it wouldn't be just a deck yeah I think it was in that case uh because that hadn't been it hadn't been dated yet but January 6. um but they were saying oh we won a public trial I first thought that there was just blowing smoke because they know that the federal is a procedure criminal procedure don't allow for it but um if they want to call for it and the justice department says we'll agree yeah we consent then you know who's left to oppose it really except maybe the judge in the courtroom but I think that there would be strong reason to have the this be aired publicly it's one of the most importantly important historical trials for the entire you know for the country's history and the normal reasons which I I never really studied but I wish I could guess I think for discouraging television televising in real time trials uh you know people could huge hostilities of defendant of this very adverse testimony and Matt even violence and all kinds of other things I mean none of that really I don't have any violent stuff because it does hold I mean it doesn't hold in this case in the sense that 99.9 of people paying attention anyway so it's not as if you know someone's gonna be unjustly well you know someone's gonna be unjustly killer someone you've never heard of you know is suddenly on trial and there's someone's describing some terrible thing and you know the whole country decides this person's horrible and and you don't want people to just decide that based on two hours of testimony on Wednesday afternoon before the rebuttal testimony on Thursday but this wouldn't be that it feels like that kind of consideration wouldn't obtain here I think that's right um and we have we'll have reporters in the courtroom but and so it's a public trial it's just that it's not video so right you have to think about what is the real Delta between those two things yeah so you mentioned vice president Pence I was on my list of things to I mean it's pretty straight he seems to have testified before the grand jury it is in effect quoted or not quite directly quoted but as it were quoted in the I believe in the indictment isn't that is that right and and presumably wood and there's no reason not to testify I mean no excuse or no ability not to wish not to testify if called at a trial is that right that's right and um I did think that that was one of the most important variables for the prosecution is what would Pence do because I don't think he's the as a legal matter of the victim but if he as the target of the Pence pressure campaign was not going to be a good witness that would be a very bad charge to bring um so I think it's very likely that they know exactly what they can count on and that's why they in fact have him in the grand jury to lock and his testimony one way or the other it sure looks like he is fully cooperating and will speak his truth and that it will um reflect and track his book and his book I think is just remarkable um as evidence and criminating evidence against the president and goes far beyond what one needs to have in a book for it to sell copy and be read by people with interest so he's he's I think very important very important uh witness in all of this and I think we'll be also will come across as just a highly credible witness and even the last 24 hours he's saying things that are super important in the if you think about like what's in the details which is he is saying president Trump and I forget his words were like wackadoodle lawyers right um yeah uh were telling me to outright reject the electors and it and for those that could track this very closely there were three things they were telling him uh potentially and it sounds like all three but that is the key that's that's the Kryptonite that one is so bad and it's also bad because um I can explain where this comes from but John Eastman is now saying that he never told Trump that that was a legal option so the fact that pants and Penn says I think he's super smart and I think he's a super smart legal Acumen so when he says that yeah it's very important to the case it was a little stronger yeah almost than you said I think he explicitly the questioner said would the Trump ask you to pause the process or at least that's what the Trump people are saying now it was just a part like crops it there easily it's just a pause I just wanted him to give the states more time to work on this and depends I said no I think explicitly said that is not true he wanted me to to to throw out the votes and not to pause the count but to dis that's the word I'm looking for discredit to reject the electoral votes from the states in questions so that they would not be a majority in electoral college so that it would go to the house and then Penn says that would be just chaotic and terrible so it does seem like he's went out of his way to rebut the milder version of what Trump claimed he was asking Pence to do in this interview just a day or two ago I was struck by that too yeah yes yes yes so in a trial like so Pence would testify and they don't I mean how does it works I should know this was people get called as Witnesses by the prosecution you don't have any like you don't have the chance to say I'm sorry I just kind of prefer not to show up or I'm very busy this week or something you you testify right I mean you can take the Fifth Amendment but um exactly and and in this case the two things I think are true or one is that the prosecution knows what these particular defendants uh sorry defendants Witnesses are going to say and they have great visibility in the sense that they have probably you know triangulated this from so many different angles because it's not a it's not a case in which there's like a single witness there are multiple Witnesses in these very important meetings and activities across these months so very difficult for people to not show up and tell their truths unless they also have um um uh convenient lapses in memory but convenient Labs is in memory are also potentially false statements on that witness stand so I think that's also and I think that there's a very good chance that the um special counsel is sending a signal by his recent superseding indictment including false statements um yeah this is the super setting invitement in the marijuana that you're not going to get away with false statements either to yes FBI agents or to or at court obviously uh that's right that's right yeah and Mueller did something very similar and would it could and so let me ask the question in this order and privileged claims I think you mentioned this very quickly earlier but it's the courts have sort of already decided in a lot of analogous cases I guess or relevant you know kind of cases that are cousins to this case that you don't have much in the way of executive privilege or attorney client privilege that would stop the White House Council from testifying or Bill Barr or from testifying or maybe not borrowed but the people who succeeded Barr and who stopped Rosen from his attempted doj coup and so forth I mean those people one would expect to see on the on the stand um I would say a hundred percent uh in the sense that um just by way of example there's DC Court of there's a DC court of appeals decision on it I think it was a deputy White House Council of an incumbent president I think it's Clinton at the time an incumbent president and they said for a trial criminal setting that you you have to testify and part of it is because as a government attorney if anything there is an obligation for you to come forward with information about evidence of crimes so it's just it's that's what I mean right it is stacked very favorably for the prosecutors um and that you have to imagine we've seen the reporting on this but these all these decisions have been secret I have to imagine that the court of appeals of the DC circuit has already decided for a bunch of these um high level White House officials that they do not have executive privilege or a version of it of attorney-client privilege um and the in the executive branch on this particular matter that's why they've already testified at the Grand Jury yes right yeah so that was sort of resolved at that level you might say yeah that's that's uh interesting so the people who we saw just Snippets of in most cases in the January 6th committee hearings you know little video of patsopoloni or whatever you know the Philbin the deputy Council and stuff a few of them testified but not not that many in in live so to speak um they'll be there I mean they'll be on the sand and it'll be a more more expansive testimony for so we know they can get cross-examinated across examine too of course so um so it sounds to me like that would be a pretty dramatic trial right former vice president I guess I'm saying this it's like just stupid things it's obvious thing to say so why am I surprised about this of course it's the historic trial but when you really think about it concretely what does what that looks like in today's divide former vice president United States and tomorrow is the former White House Council and then I guess I mean yes I think it's super dramatic I mean the only thing that can make it more dramatic is if some of the Trump family uh were Witnesses or something yeah um right right but but it's uh it's super dramatic those people will testify it's not going to be so heavily redundant with the January 6 Committee in part because of uh how you described it in the cross-examination and uh and the like I also think some of the January 6 committee depositions uh now that we see them were not as um uh what's the best way of putting this um not as exacting as I would have liked and I think we'll have the best of the best from the justice department in all likelihood doing these kinds of cross-examinations uh so getting at some of the very specific issues very concretely and many people might not have noticed this but then when even Greg Jacob testified there were moments in which it seemed pencils I'm sorry vice president yeah who's I think just incredibly compelling witness um somebody who seems just like a really upstanding lawyer and he's also driven by faith and just extraordinary and um but it seemed as though they had very much agreed that there were certain guardrails that he was not going to talk about things that might be a direct conversation between like Pence and the president there was in terms of the January 6 committee so their guardrail is an executive privilege same thing with uh Trump's White House counsel Pat cipolloni same thing with Trump's Deputy White House counsel Pat filburn and we can tell from the indictment they got the they got that testimony there's one in one of the most important lines in the indictment is that uh Deputy White House Council uh Pat filburn says to Trump in December you have no option left to stay in power past January 20th and that's the quote is something no option I assume he is the lawyer so what he's actually saying is no legal option and that's that's compelling that's compelling so you think the so the facts end up being it sounds to me pretty compelling actually in this case and I guess then Trump ends up trying to argue a lot of the the laws are too vague or they're I mean whatever defend it's always a argument sometimes they could be correct obviously or inapplicable to this case or this was meant for you know just fraud defrauding the federal government by stealing Social Security checks it wasn't meant for defrauding you know the public and the Voting Rights the law that was originally a voting rights civil rights law really that wasn't really meant for this kind of depriving voters tens of millions of Voters of their legitimacy or the effect of their vote and so forth I mean in general is any of these arguments strike use likely to go anywhere and and how much does it matter that it's I guess if do they get to make these arguments in the trial court and convince juries that the law is problematic or is that more for the judge is that more a matter of something the judge resolves ahead of time right um I mean some of these questions would be for the jury some would be for the judge I don't think these are going anywhere um I think it's such a formidable case so I do know that there is some writing out there that suggests there are these problems in the law but I would just say that um so let's just do the um the Civil Rights Act law that was uh came out of the Civil War it is definitely true that it was first intended for use of violence committed against black Americans to stop them from voting by white supremacists like the KKK absolutely but over a hundred years ago the Supreme Court has said that it also applies to criminal conspiracies to um not count people's ballots so it's like hand in love here in a certain sense but the facts and what the Supreme Court has said in multiple times have held that and that they're if you just like pick up the Justice departments I think the last year maybe is 2017 their manual on Election crimes it lists examples of crimes under 241 they include several schemes to for election Commissioners and the like to not count people's ballots properly so that would apply to throwing up people's ballots or the Electoral ballots from the seven states um the other uh statute on um fraud the idea that it only applies to deprivation of victims of their monetary or tangible property that's a different statute and the Supreme Court over 100 years ago said for the statute that um Jack Smith has charged which is a criminal conspiracy to defraud the United States it applies as it says explicit yes monetary and physical property but also interference with governmental functions um Mueller charged the Russians with the same statute of interfering with the administration of U.S elections the 2016 election nobody batted an eye about that um so is it possible that somebody could come up with a constitutional argument as to just sure I guess so they could overturn 100 Years of Supreme Court precedent but that's after let's put this that is after the conviction so I don't think that works the First Amendment one I think is a total not even a red herring and non-starter it's just not this case uh Jack Smith very deliberately indicted in a way in which it is not dependent at all not even a dependent it's not alleging incitement from the ellipse Riot from the Ellipsis speech excuse me he's not alleging anything that really hits a First Amendment issue if he did I would be the first to either say oh yes let's roll up our sleeves and discuss where the first amendment is or isn't where the lines are drawn so when people say it's not a First Amendment it's not because they're saying oh the lines are drawn in such a way that the first movement does not ex not extend as far based on some jury experience no it's just this is not a First Amendment issue it's like um I think Larry Chavez maybe the first person to say this somebody goes into a bank and says stick them up give me your money and the defendant says oh no that was my first amendment right it's that kind of a case this is not a personal case um and then there's the dice of council I think that to me has always been potentially from strongest defense and when I saw the co-conspirators I thought that is the strongest argument to the strongest defense it is very difficult to claim that you relied on your advice of counsel if your Council were co-conspirators in the criminal scheme uh plus a bunch of other reasons that that one won't work but to me maybe that's the best one they've got and I'll just also say I suppose um because this one's also important and I think this is a a good faith argument that people have out there they think that it's not disingenuous they think that the prosecution has to prove that Trump believed he um lost the election that he knew he lost the election I do not think that's the case for so many of the for all basically all of the counts there are certainly versions of the case that could succeed if they prove that Beyond A Reasonable Doubt but they do not need it just a couple of very quick examples he can think he won the election he could even have won the election and it doesn't give him any legal right to threaten the secretary of state of Georgia with criminal penalties and threaten him with um physical violence from mob violence which is what Brad raffensberger testified before Congress is what he thought the two threats were in that phone call um so just he cannot even if he thought he won and he won he cannot pressure the justice department to send out a clear false statement that the justice department has found significant fraud when they have just told him they have not found any significant fraud it goes up it goes on and on and on there's so many of these um so I don't think that one is going to work either and in fact I could even imagine that Jack Smith is um happy to think that the Trump lawyers are now on the airwaves believe that that is their defense because it is it is just not a defense to these charges yeah even if even if you think a bank is unjustly taking some of your money from your checking account and even if you're right that it has you don't get to go into the bank and hold it up right I mean so that's I think the the First Amendment thinks and then the the uh and even if you have a Coke what are your coconut spirit is as a lawyer who's giving you some fake arguments so why you have that right especially if you can show that you didn't really believe those arguments yeah I think it's um yeah it's interesting but I do feel like yeah people say well no president's been charged under this complex of laws before but I think the answer to that is well no president's ever done what Trump tries to do before and each of the laws correctly if I'm wrong with each of the statutes has plenty of case law behind it right I mean lots of people have been as you said earlier have been uh convicted of election or depriving people their right to vote or if their votes being counted appropriately and lots of people have been convicted of defrauding federal government not just in a monetary way but in a broader way so to speak is that right I think that's right so so in that respect they're in good really around good legal ground it's just Trump happens to be president and in previous cases the conspirators were or or the actors were less prominent absolutely and yes everything you just said there are dozens and dozens of cases even to the point that if there was some way in which this gets to the Supreme Court and some constitutional or statutory interpretation type argument the Supreme Court's going to be looking down the barrel of oh my God are we going to overturn the last hundred years of how this statute has been used and deprived the justice department of its ability to use the statute in the future because we somehow favor Trump in this case it's that's Rock Solid um and I think the justice department is very deliberate and I think it's probably Garland and Smith they wanted to take statutes off the shelf that had been used in like cases and to say we're treating likes alike what would be special here is if we didn't prosecute him it's very similar to the Espionage Act case there's so many Espionage Act cases that are with a lot less egregious facts you're talking about yeah exactly and I think something very similar here yeah yeah I think that's an important uh for what I mean it would be it unjust to not treat Trump in the way the same way others who tried to do similar things at lower levels as it were uh with less scope have tried to do these things so the place is the opposite I mean you could argue of the politicization of the justice department or the weaponization of the justice department it really is applying the law impartially right at least that's what Smith will certainly and the justice department will argue absolutely and um the based on the most recent statistics of early July of this year well over 300 people have been charged for the obstruction of the Congressional proceeding and it's kind of like so if all of them are being charged for it uh why not him and is it yeah is it and I also think there's another way of looking at it too if you look at the co-conspirators co-conspirators on the indictment they will be charged in a sense or they'll flip um but I think they'll be charged otherwise there's no way the justice department is going to turn a blind eye to their uh the Justice Department's view of their criminality can we imagine a world in which those people are charged and Trump isn't that the rule of law should not tolerate such a situation so I think it's um that would be the politicization of their justice department yeah that's interesting so just to maybe close on this point that you said we're at the beginning we're sort of at the doorstep of accountability which I think is a good formulation it sounds to me like you think though that as we go through this case especially perhaps with the co-conspirators or whether they flip it off but which is as we learn more that if we get to trial and and learn more there that the case gets stronger not weaker so I've got to say people are looking at it it feels to me like and and they say oh pretty impressive 45 pages and but I don't know is it really fully convinced of course an indictment it's just an indictment I mean it's not just an indictment but it's not everything is in those 45 pages right I mean that's it yes absolutely um I think I've seen the same kind of um analyzes and it is a logical flaw for people to say well if you had this evidence he would have presented it Etc no he's only pres I think he's thinking like a prosecutor more than he's thinking about public messaging so it's like this is what I need to show in the indictment I'm not sharing all my cards to the defendant I don't have to and you could hold back on so much evidence um and by way of example uh we know of two pieces of evidence that are rock solid that a does not reference in the indictment when he's talking about Trump's use of the justice department to try to get them to make false statements and send these letters to Georgia and elsewhere to try to return the popular words in their states two things are one um the White House counsel Pat cipolloni did testify in the Congressional uh investigation that he called that letter A murder suicide pact in front of the president in an oval office meeting that's not in the indictment that is explosive material and especially for Americans who have not read you know I have not been tracking this so closely they read that in the indictment oh my God to the president as to why they can't send this thing second one is the justice department thinks that that meeting that Trump is going to fire the acting attorney general replacement Jeff Clark they write a draft Mass resignation letter that stipulates and says in it over the past weeks the acting attorney general has resisted Trump's the president's efforts to use the justice department to improper ends that's strong evidence that they just have you can see the document Politico found it first had it first and then you can you know Google it it's not in the indictment it's just a good indicator and actually Tom Jocelyn just wrote a piece with just Security today and he lists those two examples that's where I'm bringing them getting them from and Tom Jocelyn was one it was a principal draft of the January 6 committee report so he's extraordinarily familiar maybe more than almost anybody with the record and notices you know these are not in the indictment so just as an and he says this is you know evidence of how much Jack Smith is holding back and can't hold back has no reason that represented all here and so that all comes out at trial so finally I mean what do you think about you mentioned the very beginning you had a couple thoughts about how what Trump does if he wins or loses but just I guess net net you think trial is more likely than not in 2024 yes and I think it's this one um also because I don't trust uh judge Canon before the election push comes to shove um and uh so yeah I think that this one uh does come before the election and I do think that in a way uh if I were Donald Trump I would think one of my best shots is to win the White House and that is the way to avoid these um prosecutions and if he gets in the White House it's the pardon power it's also that he is the chief executive the justice department and he can just shut it down you can just say this is I've always said this was a hoax we're shutting it down why would I keep this and I said that before I ran so that's my mandate you voted people voted for me for it to shut it down and I think this is one other piece that people aren't don't necessarily have their eye on the ball I could imagine that the U.S Supreme Court will side with the office of legal counsel and say a sitting impre a sitting president cannot be subject to indictment trial or sentencing while they are president and that applies even more so to State and local prosecutors who might be elected from a different party and the like we don't so if that's true as a federal level it's maybe even more true for let's say Georgia and Manhattan and that's why those cases might go away for four years and if they go away for four years uh they might go away forever in a certain sense yeah I think that's a good point people seem to be a little too credulous about the thought that well the state probably you can't use the part at the state level but there are other reasons why and it's not crazy to say that you can't have every local prosecutor Prosecuting a city president of the United States it's just insane you know and how do you distinguish the good faith cases from the not so good faith cases and so forth but what you're saying is even if Trump were convicted in June of uh 2024 uh it'll be on appeal and Trump could order the justice department to in effect uh and to what exactly yields to the appeal or not contest the appeal or something and apart from providing himself and all that stuff too but um yes yes I think that's one of the mechanisms he can pull is that the justice department will uh is going to withdraw its appeal or withdrawal its response to the appeal or whichever which way it cuts and then the only question is I think state or local is but who knows I mean this is a real complex question which is let us imagine that he is convicted in Georgia and now it's on appeal like a multi-year Appeals um then maybe the like olc opinion of the constitutionality of uh current president being subject to that might be very different because oh come on like he's not in jail or in prison it's just appeals he can deal with appeals in a litigation and that the sentence would just not take place within the four years while he's in office he's but that's I mean this is like such radical set of facts and because that's the world that we happen to be living in so it's hard to even anticipate that so just in the short term things that will happen apart from an hour from now when Trump shows up at the courthouse um that we should be looking for it sounds like what you're saying we'll get some indication of how fast Jack Smith thinks he can move and it tends to move and maybe submitication of of whether the co-conspirators have been or will be whether they will flip or and or whether they've been indicted or will be indicted those are kind of things that could happen in the next weeks I mean yes next days or weeks and that's what I'm personally looking for and then we'll also get a schedule of the trial at least tentatively which would give some sense of what the judge thinks is at least a a beginning place from which of course they'll be able we need more time to do this or that but at least give some sense of what she thinks is is sort of plausible or reasonable or which is aiming for right yes absolutely at least it's a something that's in the calendar um that is Meaningful and how long would such a trial be I mean do you think uh I don't know so in certain sense uh the Mar-A-Lago and I think Jack Smith asked for three weeks he thought it would take um here it's hard to wrap one's head around because there were so many witnesses I think that one that to me is what makes it a there's so many witnesses and B it's a multi-pronged conspiracy um that sounds like a long trail that sounds like three months have been Pride I don't think yeah but they don't have to call every of course I mean as long as one Witnesses no if on defense the defense challenges I suppose you know a certain witness and they can go all the witnesses to back up that witness and so forth but if they have the White House Council saying something they don't have to have every single person who was in the meeting cars confirming that the White House Council did say something or did you hear Trump say something I suppose I think I think that's a great point and there's also another one that goes along with it which is kind of dovetails with something else we were talking about earlier there are certain witnesses that were there along the way for a large part of this Mark Meadows in particular is in the most important meetings he's running points on the false electors scheme all sorts of things so he can narrate so much of the prosecution's case yeah that will be interesting when we if when we learn about Meadows um yeah so much of this is going to be interesting so we'll have to have another conversation this week as we learn more but this uh Riot has been extremely helpful for me and I'm sure for our viewers and listeners and just laying out kind of what we're what to expect and what we're dealing with here and it's uh it's a big moment right it really is a big moment and it is I it is a kind of beginning of accountability almost whatever no not whatever happens but almost whatever happens in the actual next I feel 15 months it's a big moment already just to have this uh don't you think to have this indictment I I definitely think so I I one of my greatest concerns is that we haven't seen this kind of accountability just this step in the past with uh senior officials from who cares the party and so this is a such an important moment for the country I think it could be a turning point for the country as a kind of a deterrent and a signal to others even in the future like it will get this far um nobody is beyond reached of the justice system when the crimes of this egregious yeah it's a good note to end on uh Ryan thank you for uh joining me today it's really a terrific conversation thank you really appreciate it and thank you all for joining us at conversations

Channel: Conversations with Bill Kristol

Views: 127,484

Keywords:

Id: StbwLc5eeDA

Length: 59min 44sec (3584 seconds)

Published: Fri Aug 04 2023