This is Bloomberg Law with June Brusso from Bloomberg Radio.
Before this year, no American president had ever been criminally charged. Now, in the last four months, Donald Trump has been indicted three times, once by Manhattan District Attorney Alvin Bragg in New York and twice federally by Special Council Jack Smith.
The attack on our nation's capital on January sixth, twenty twenty one, was an unprecedented assault on the seat of American democracy. It is described in the indictment it was fueled by lies, lies by the defendant targeted at obstructing a bedrock function of the US government, the nation's process of collecting, counting, and certifying the results of the presidential election.
The latest indictment is the most serious. Is charged with conspiring to defraud the United States government that he once led, and conspiring to deprive American voters of the right to have their votes counted. The indictment alleges that for months Trump knowingly spread lies about the election being rigged in an unprecedented effort to block the peaceful transfer of presidential power.
Trump's pressure campaign against former Vice President Mike Pence is painted as the lynchpin of the scheme to defraud America.
I really do believe that anyone who puts himself over the constitution should never be president of the United States, and anyone who asks someone else to put themselves over the constitutions should never be President of the United States.
At GEA joining me is former federal prosecutor Jessica Roth, a professor at Cardozo Law School. Jessica, what stands out to you in this indictment?
These are the most serious charges that have been filed to date against the former president. They allege a vast conspiracy to overturn the results of the twenty twenty presidential election and to prevent the lawful transfer of power and to deprive the American citizenry of the lawful counting of
their votes. These are charges that allege conduct that really threatens the heart of our democracy, and if proven beyond a reasonable Nett trial, will ensure that the former president goes down in history as having tried, through a concerted effort and conspiracy with others, to prevent the lawful transfer of power and to hold on to power through illegal means.
Those who watched the January sixth Committee hearings are familiar with a lot of the facts and the people here, but the details on this attempt to leverage the Justice Department. When the acting Attorney General told Trump that the Justice Department could not and would not change the asthma of the election, Trump responded, quote, just say that the election was corrupt and leave the rest to me and the
Republican Congressman. What is your take on this attempt to leverage the Justice Department?
The allegations about Trump's efforts to use the Justice Department in furtherance of his scheme to submit false slates of electors to Congress that was known before there had previously been testimony by the former members of the Justice Department
about those conversations and communications with Trump. I agreed that the statement that is contained in the indictments and attributed to the former president, in which he says, just say there was fraud, essentially, and leave the rest to me and the Republican members of Congress, is chilling, and it demonstrates the former president's intent, his knowledge that he was
using illegal means in order to stay in power. And that's really critical because the former president likely will argue at trial that he honestly believed that he had won the election, and that therefore he is not guilty of any crime in connection with trying to stay in power. But you can't use illegal means in order to stay in power even if you think that you actually won
the election. So those statements in the indictment, such as just leave it to me and the Republican members of Congress to me, are very demonstrative of his criminal intent.
Going to that, the indictment repeatedly says that Trump knew his fraud claims were false. Starting on page one, it says, the defendants spread lies that there had been outcome determinative
fraud in the election, that he had actually won. These claims were false, and the defendant knew that they were false, And it recites how he was told by campaign staff, white House official, state government representative that there was no evidence of fraud, and in various things he said, for example, that in Pennsylvania there had been two hundred five thousand more votes than voters, and that five thousand dead people
voted in Georgia. Is it emphasize so much because it's part of what the prosecutor has to prove at trial or in anticipation of what Trump's defense might be.
I think it's both. The indictment says that Trump knew that his claims were false, and it says so repeatedly in the allegations, and in effect, it's a refrain throughout the indictment that Trump made a statement claiming that there had been fraud in the election in a state, and then was told by his top officials and by officials in that state that there had been no such fraud or irregularity, and that he nevertheless continued to perpetuate the
lie that there had been fraud. That's part of the narrative of this indictment is showing that the former president continued to repeat lies that sewed distrust and people's concerns about the legitimacy of the election, particularly his followers, and then he capitalized on that sense of distrust in order to further his scheme to substitute false electors for the
legitimately elected electors for Joe Biden. It is not necessary legally to succeed on these charges to show that the former president knew that all of his statements were false, but it is a far more compelling story, and I think more comprehensible to a jury. If the jury is persuaded that the former president did know that his claims were false, and you.
Mentioned the fake electors, it seems like there was fraud on top of fraud because Trump and his co conspirators lied to some of the fake electors and assure them that their certificates would be used only if Trump succeeded in litigation in the States. So it was lie on top of lie.
Yes, there were multiple levels to the lies and the fraud that is alleged in the indictment. The scheme to create these false plates of electors in the states that Trump wanted to contest involved, in some cases, lying to those electors who had been pledged for Trump, telling them that this alternative slate of electors would only be used and submitted to Congress if there were a court ruling in Trump's favor finding that in fact he had won.
And the reason why Trump and his co conspirators had to lie to these electors was because some of them raised concerns that, in fact, they would be acting unlawfully if they presented themselves as of the legitimately elected electors in their states, and so in order to get them to actually go along with the scheme of creating the
false flate of electors to be submitted to Congress. They had to be reassured falsely that those alternative slates that included them would only be used in the event of a court ruling in Trump's favor, but of course there were no such court rulings in Trump's favor law in state after state after state where he contested the results of the election, which is important also because it shows again that he was getting feedback in real time, not
only from his top officials and from officials in the states, but from state courts that there had been no fraud that would have changed the result in any of those states. And again that goes to his criminal intents.
The indictment refers to Vice President Mike Pence or the office of the Vice President more than one hundred times. Will Pennce be the star witness.
It is hard to imagine this case going to trial without Mike Pence's testimony. I don't know if he will be the star witness, but he will certainly be among
the most important witnesses in the case. The indictment refers to numerous communications that the former vice president had with the President refers to contemporaneous notes that the former vice president took regarding those conversations, And it's really in those communications with the former vice president that we see really significant portion of the pressure campaign that Trump brought to bear, particularly at the end stages of the alleged conspiracy, to
try to get the vice president to stop the certification of the legitimate electors, to send the matter back to the States, or to accept the false plates of electors, so he will be a key with it.
So there are six unnamed co conspirators, and it's fairly obvious who five of them are. Why do you think the Special Council decided not to charge them along with Trump? Is it to move the case faster to trial? Are there other reasons?
I think the most likely explanation is having to do with an effort to try to get this case to trial as soon as possible. The more defendants there are included in an indictment, the more lawyer schedules need to be taken into account in scheduling any matter, including the trial, the more motions there will be to be decided. So I think the most significant factor here is likely the Special Council sense of urgent see in trying to get this matter scheduled for trial as soon as possible and
before the election. There may be other reasons as well. I imagine that some of the motions that might be filed had there been other defendants names here, would include those for severance, the argument that they couldn't get a fair trial if tried alongside the former president, about whom
so many people have such strong feelings. They may have had inconsistent defenses pointing the singers at one another, and so I think, anticipating those motions as being among the issues that would have to be decided by a trial court before trial, it was likely wise of the Special Counselor to bring this indictment against the single defendant, mister Trump, who clearly is his priority, so that those other issues wouldn't drag down the timeline of the case.
The Special Council said, the investigations continuing, and I'm wondering if these six co conspirators, you know, aren't sleeping too well thinking that they will be charged.
I imagine that they will be charged, or at least most of them. The fact that they were included in this indictment as co conspirators with their roles in the conspiracy described means that the Special Council presented evidence to the Grand Jury about the involvement of those individuals and clearly must feel that he has enough evidence to indict them. So I think it was a strategic decision based mostly in concerns about timing that explains why they were not
included in this indictment. I imagine that those individuals are not sleeping well and are considering their options, including whether to pursue a plea agreement with the prosecutor's perhaps its even one that includes cooperation against the former president or others. So I think it's too soon to say exactly what's going to happen with respect to those other individuals, but I would anticipate that they will be charged in some form.
There's no charge of insurrection or sedition, and it seems like, you know, the facts are there, why do you think he didn't charge insurrection or addition.
The Special Council's decision not to include charges of insurrection or seditious conspiracy, I think reflects an effort to keep the case as simple and strong as possible and to avoid getting bogged down in litigations about the viability of those other charges, and so I think it was a
strategically sound decision. The charges are set forth and misindictment appear to be supported by very strong evidence and a clear narrative, and they don't raise the issues, including those grounded in the First Amendment, that some of those other
charges might raise. So I think that even though the facts do lend themselves to an interpretation that might have supported such charges, by not including those charges in this indictment, a special council of boys having to litigate those questions
that are difficult ones. And instead, the way these charges are framed as broad conspiracies will allow much of that evidence to come in in any event to explain the conspiracy because they are relevant to it, without bogging the case down in litigation about the legal issues that would arise with respect to those charges.
So I want to talk about some of the defenses we heard from Trump's attorney John Lorow last night. First, political interference in the election, something Trump has been saying over and over in his rallies and interviews that might work in the public But would that even be allowed as a defense at trial?
No, that is not a defense one could raise at trial. There is a claim that is sometimes pursued by defendants of selective prosecution, including that the prosecution is politically motivated. That is a very very difficult claim to establish, and judges usually do not entertain that without any evidence to support it. And I don't imagine that the judge in
this case would entertain that argument here either. So I think that the fact that mister trumpayers are making those claims in the court of public opinion advance his political interests, but they don't give rise to a valid legal defense.
Another thing was a free speech defense. Loro said, an administration has criminalized the free speech and advocacy of another administration, and Rudy Giuliani also said, you know, this is against free speech.
So this is a really important point. The indictment alleges conspiracies to obstruct the certification of the electors and the electoral process, and does not rely solely on statements by the former president and his associates, who are alleged to be co conspirators. Here, this is not the criminalization or
attempted criminalization of speech alone. Instead, what is charged are conspiracies that involve action, conduct, conduct, including the recruitment of these stake electors conduct, including efforts to pressure the members of Congress and the former vice president to accept the sake electors and to stop the certification process. So it is just wrong to claim that this is an effort
to prosecute someone for their speech. This is a prosecution for conduct and a criminal conspiracy in which speech was used, of course, because that is how people communicate with one
another to conduct the conspiracy. And also, the former president's false, repeated claims that he had won the election were part of the scheme that is alleged because they helped answer so distrust among his followers in the results of the election, to sort of lay the groundwork for them to accept the proposition that there had been fraud and to accept these fake electors. But he is not being prosecuted simply for lying about the election, and that's really important to remember.
Finally, adviceive counsel on this. I've heard before that Trump was just relying on what his attorneys told him.
So there is a defense that can be raised as advice a council, but it does not apply here. It requires that a person rely in good faith on the advice of council to establish that they did not believe that what they were doing was unlawful. The facts that are alleged in this indictment are inconsistence, with that being
a valid defense here. This indictment lays out all of the advice, including legal advice, that mister Trump got from his attorneys, the attorneys in the White House Council's office, attorneys at the very top of the Department of Justice, all of whom told him that the scheme to use false electors who had voted for Trump and to substitute them for the Biden legitimately elected electors was meritless and had no grounding in law. So the legal advice that
he got was that he couldn't do what he did. Instead, he chose to rely on counsel he got from outside advisors, lawyers among them who are now among the unnamed co conspirators. But even those lawyers, at various points acknowledge that what they were saying was severely flawed and that there was not a good legal basis for it, And the very fact that they are charged as co conspirators shows that they were or allegens that they were part of the conspiracy.
As opposed to lawyers providing advice in good faith on which the former president relied in good faith. So merely the fact that somebody who is a lawyer gave you a theory that you could pursue that you liked, and you chose that rather than the legal advice you were getting from the lawyers who are in official positions, who worked in the government, and who you had appointed to their positions because you thought they were of good judgment.
Just because you chose one set of lawyers over the other does not give you automatically an advice of council defense timing.
Trump has four trials already scheduled between October of this year and May of next year, two of them criminal. Is there any way this case could be tried before the election.
It will be very difficult to get this case tried before the election, but I think it is possible. It would require several things to happen, including the March twenty twenty fourth trial of the case brought by to Manhattan
District Attorney Alvin Bragg, to be moved. District Attorney Bragg has indicated in public remarks that he may be open to moving his trial date in the interests of advancing to the federal cases, and so if that were to happen, that would open up a window in early twenty twenty four before the May twenty twenty four dates in the Florida case. So that's one necessary thing that has to
happen is the movement of that trial date. Another would be that the judge presided over this case in the District of Columbia would have to decide that it is important to get this case on the calendar before the election and schedule it accordingly, and to move the case along expeditiously.
This looks like a more complicated prosecution than the classified documents case. What are the main obstacles for the prosecution getting in the way of a guilty verdict here?
This is more complicated than the Florida document's case in the sense that it is a broad set of conspiracy charges encompassing a good deal more conduct and involving more individuals, and it will involve I believe, more witnesses than the
Florida case would. That said, it does not appear to include classified information, and so for that reason I think that it will be easier to move it forward more expeditiously than the Florida case, which does involve the classified information about which there will likely be litigation in terms of what can be shown to the jury and use
in court. So as a practical matter, I think that the challenges will be just getting all of the discovery to the defense in time, litigating any pretrial motions that are necessary, and then presenting the case, which, like we will involve quite a few witnesses and documentary evidence in
an expedition's manner. In terms of actually getting a guilty verdict, there's the challenge that I think is present in any case involving the former president of finding a jury that can unanimously agree on a verdict, given how polarizing a
figure he is. And then, because the prosecution will have to prove criminal intent, that will be a challenge, because even though the evidence is set forth in the indictment is very strong, Nevertheless, Trump will likely argue first that he thought that he had won the election and because of that he can't be guilty of any crime, and
at least one juror may buy that argument. And second, he may persuade at least one juror whether he thought he had lost the election or not, that he nevertheless still lacked criminal intent with respect to using these other means of trying to stay in power. And the former president is somebody as to whom it is challenging to him down his intent. So I think that those will be the biggest challenges at this trial.
Thanks so much for taking the time to be on the show, Jessica and to lend us your insights. That's Jessica Rob, a professor at Cardozo Law School, And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg