Trump Indicted on Federal Criminal Charges

This is Bloomberg Law with June Brusso from Bloomberg Radio.

Our nation's commitment to the rule of law sets an example for the world. We have one set of laws in this country, and the apply to everyone applying those laws, collecting facts. That's what determines the outcome of an investigation. Nothing more, nothing less.

Special counsel Jack Smith took only two and a half minutes to comment on the first federal criminal charges against a former president in US history. Smith let the indictment against former President Donald Trump speak for him. Trump is charged with thirty seven counts over his handling of classified information, including willful retention of national defense information, corruptly concealing documents,

Like the Russia Russian Russia hoax and all of the others. It has been going on.

For seven years that they can't stop because its election interference at the highest level.

There's never been anything like what's happened.

I'm an innocent man, I'm an innocent person. A longtime Trump baide was also indicted on six charges. Joining me is Joshua Castenberg, a professor at the University of New Mexico Law School and a former prosecutor and judge in the US Air Forces. This is what's called a talking indictment, and the story it tells in words, texts, photographs, and transcribed conversations, is of Trump's relentless efforts to hide classified documents related to the national defense from federal prosecutors and

So it brings a picture of clarity that the government's proof is pretty solid, particularly in regard to the recorded conversation he had where he admitted that the document he waived around the military attack plan was mark secret or top secret. He boasted about it basically to a non law enforcement official. This was a journalist or a writer who was going to write a book. And so my first thought is, well, the government has some pretty compelling evidence.

How do you fight that kind of evidence as a defense attorney.

You know, for criminal defense attorneys, that type of evidence is usually what they might consider nightmare evidence that their client does because it shows wrongdoing and it shows knowledge of wrongdoing, and you know, absinute confession, you don't get better evidence than that. As a prosecutor in a case that doesn't involve DNA, you know, the defense is likely to argue something unique, like while he's the former president of the United States, he had the authority to do that.

And does the indictment convey the seriousness and the danger to national security from his actions?

Well, absolutely. Look if you had a person who worked at Department of Defense, whether they were military or civilian, or CIA or National Security Agency, waving around a document the way he did with that boast, my thought is absent somebody who is not guilty by reason of mental defect, that that individual would likely go to jail for a long long time. Now, this isn't quite a case of spying, but let's remember Robert Hansen just died in prison for

These allegations are very very serious, but it's almost comical the way Trump had those boxes moved around mar A Lago, from the ballroom to a bathroom, to a storeage room in his office, and then on a plane to Bedminster, New Jersey. And there are pictures documenting it all, even when some of the documents spilled out of a box and were scattered on the floor.

It shows a certain degree of knowledge that you shouldn't have the documents if you do that, and also paranoia that you'll get caught. Now, there's a movie based on one of the John Grisham books where the lawyer tells his mafia client, I have documents on you that are at sea, and as long as nothing happens to me,

There's a lot of information in here that appears to be coming from Trump's lawyer, Evan Corkran, who's identified as lawyer number one. The Special Council has notes from Torcrene and a detailed voice memo from a key period in which he was recounting the team's private deliberations, and it's evidence that the prosecutor got because the judge pierced the

Of all the issues out there, that's the one to pay attention to with the most focused at the beginning. So the crime fraud exception has been an exception created by the court and written into the roles of attorney ethics. That all fifty states have different ethics rules, but they basically all say the same thing, which is, there is an exception to the attorney client privilege when the attorney is part of an ongoing crime or a member of

Now, Trump's allies and Trump himself has floated this defense that he had already used his presidential powers to declassify documents. And you know, some of the things he said about declassifying documents seem ludicrous. But could that be part of his defense anyway?

Well, you know, I think because the uniqueness of this case. They could try to advance it as a defense, but to me, the biggest barrier to get that defense to even be considered by a jury. To paraphrase an old movie with Tom Cruise, show me the money, because if you're in a through that defense then produced a document that was filed in official channels that shows that you gave a blanket declassification. And you can't just do that with you the word of mouth, Hey I declassified this.

What do you think about the Special Council's decision to bring this indictment before a Florida grand jury rather than a DC grand jury.

What the Special Council has done, in the best educated guess I can give, is that they determined that when the documents were transported to Florida that occurred when Donald Trump was still President of the United States, holding those documents in his possession after he left office is the centerpiece of the crime that's charged, and the only trial venue under the US Constitution that would be available would be the United States District courts in the state of

Do you think it'll be harder for the Special Council to select a jury in Florida, a state that Trump won.

I don't really like to presuppose that you can't find a fair jury in a state simply because there's a popular person on trial. Let's remember that there were people on the jury of Paul Manifort that voted for Trump. That will be a lifelong Republicans who convicted Paul Manifort. Now, Manafort wasn't a popular person in the way of the president, but certainly the political pressures were out there to support Manifort.

Your processes for federal Judge Eileen Cannon is going to be assigned the case. And she was the judge who was appointed as a Special Master to review the material seized last year, and she gave some odd, if not bizarre rulings and one was thrown out in entirety by the Eleventh Circuit. This seems like it's just bad luck for the Special Council. But could they somehow get her recused.

They could move to try to get her recused, but I'm not sure they'll do that because the law presumes that judges do not act in a political manner, whether you agree with their rulings or not. I know that the media and the general public has come to believe that that's not an accurate statement. And look, in some cases,

Is it a problem for the prosecutors if she remains on the case, because that Eleventh Circuit panel was really critical of her and said she overstepped her bounds in exercising jurisdiction.

It could be a problem for the prosecution. It certainly could be. I don't know enough about her for me to make a valuation judgment. What I'm going to assume happened if she had a defined view of the law when she made those rulings, and she issued her decisions based on her best efforts as to the defined view

So now the timing of the trial. So everyone's wondering, could this happen before the presidential election.

Well, if it doesn't happen before the presidential election, and if the next president happens to be Donald Trump, who has followed in the tradition of Grover Cleveland with a second but non consecutive term, then there won't be a trial when he's sitting as president. So I'm not sure it'll happen at all. But the earliest that could occur then is sometime in twenty twenty nine. You know. Having said that, people asked all the time, can someone run

Jack Smith mentioned a speedy trial. How fast do you think they could get to trial?

You know, if the defense council asked for a speedy trial, you could have a trial within a period of a month or so in theory. But typically, and I have no idea what Trump's defense council would be, but typically these kind of cases are dragged out for a while and there's not a lot the government can do about that.

How likely do you think it is that Jack Smith would offer Trump a.

Deal if we weren't talking about a former president in a case like this, it would be ripe for a deal to be made mishandling classified evidence. In my prior time as a trial judge, I can't recall a case that actually went the full litigation. I said as a judge on four cases that ended up being a deal

What about Trump's aid? Do you think they'll offer him a deal?

Oh? Yes, you know, the case is probably very strong on some of the charges, maybe not strong on all of those. But a case always becomes stronger when a co conspirator splits off from the conspiracy, leads guilty, and agrees to testify against the remains members.

So I think there will be And do you think we'll learn anything more when Trump goes to court on Tuesday?

Most importantly to me, we don't know what the status of the grand jury meeting in Washington, d C. Is with the January sixth type charges. And I think we'll get a better picture of the January sixth grand jury on Tuesday because I have this suspicion in my mind that the trial judge, when they start talking about scheduling, will ask the question, well, what about the grand jury in Washington, d C. And the prosecutors will probably feel compelled to answer and give some timeline to that.

Finally, you know, Jack Smith's statement in just about two and a half minutes hit on a lot of important points, one being that he said, we have one set of laws in this country and they apply to everyone. In other words, no one's above the law.

Yeah, you know, some members of the House and the Senate and other Republicans who are allied with Donald Trump has said this kind of thing doesn't go to trial. This is, you know, targeting the former president. But earlier this week, a retired Air Force lieutenant colonel went to US district court and was sentenced to three years for the mishandling of classified data data that he kept past his retirement in his possession. This was not a case that we know of where he was trying to sell

That's such a compelling comparison. Thanks so much, josh That's Professor Joshua Castenberg of the University of New Mexico Law School. If it seems like Supreme Court arguments are going longer than usual, it's because they are. Eighty percent of Supreme Court arguments went over there a lot of time. This term. Gone are the days of Chief Justice William Renquist, who would cut off people mid syllable the very millisecond the argument was over. That's according to Haines and Boone partner

Well, you know, back in the day, particularly when Chief Justice Rinquist was in charge, but also the early years of Chief Justice John Roberts, you know, cases would average about sixty minutes. There were some that would go a

Do they have little lights that remind them when their time is up?

Still, they do have lights that will tell the advocate you have, you know, five minutes left, you have one

And you talk to a lawyer who said that Chief Justice Renquist would actually cut people off mid syllable.

That's right. I mean, when that red light went on, you were done. You could ask for some extra time if you wanted to finish your sentence, but three words maybe you would get out. Otherwise you were not being in the good graces of the justices. But that's really changed a lot.

Now.

Now you'll see advocates go on for sentences, which doesn't sound like a lot, but in the Supreme Court, in that court room, it is.

So explain why this change came about.

Well, it really is an effect of the pandemic. So when March twenty twenty year olled around, the court had some more arguments scheduled, but they canceled them and pretty quickly switched to hearing arguments over the phone. And it was pretty clear that just you know, having nine people free for all over the phone was not going to

And it was a pandemic that led to that moment where Justice Clarence Thomas spoke. All of a sudden, it seemed like everyone stopped to listen, right, And you.

Know, again I spoke with some advocates who said, it's not trivial to hear from Justice Thomas. He has been on the course the longest of any justice currently serving, and he asked a lot of really intelligent and probing questions. And what we saw during the pandemic, and what we continued to see is that now he's participating in a lot of the questions that the other justices asked are

So do the advocates like it? I mean, it's more time for the justices to ask far ranging questions. Do they like that or is it just exhausting?

Nearly unanimously, all of the advocates that I've spoken to really really like the extra time. They say that the whole point of oral arguments is to answer the questions from the justices, So being able to have more time to answer their question is helpful and also is led to less interruptions. You know, the justices don't feel like they have to interrupt advocates have to cut them off in their answer to that other justices or they run

And some advocates told you they believe it's led to more concurring and dissenting opinions.

Yeah, just that the idea that you know, now a justice can really probe an issue even if no other justice seems really interested in it. You know, if you have an idiosyncratic view of the of the law or the issues of the fact, you can ask them. And being able to flush that in the arguments has presumably led to more of the concurring opinions where you know, a justice can rank for themselves or one other justice on a pretty small issue.

The arguments are about the justices asking questions, but while they're asking questions, they're presenting their opinions and you know, perhaps trying to persuade other justices.

Right, So listeners may not know, but the oral arguments are the first opportunities that the justices get to talk about the case since they granted it and they've read all the briefs. This is they're you know, the first time to interact and really see the way that their

You talked about this in your in your column, But I already knew who was the longest talker, because it's pretty obvious that it's Justice Katanji Brown Jackson. But by how much?

By a lot? And so you know, Adam Feldman over at Empirical Gotus really broke down the numbers and said that Justice Jackson spoke hundreds of wards more than the next closest justice. And that's really unique, not just because you know she's a justice who's speaking a lot, but because she's a junior justice, and typically we just don't see that. We see and junior justice sort of step back and kind of get a lay of the land before they feel more comfortable talking. But that has not

And I think we spoke about this when she first came on the bench that she started asking questions at the very end which the Chief didn't approve of a right.

I mean, the justices is sort of tinkered with or arguments here and there, you know, over the last decade or so. And one of the sort of informal rules that they seem to have said is that they're not going to ask advocates questions during rebuttal time. So that's after the other side has gotten up and the petitioner gets to sort of give us the maation of the case a very brief time. And you know, we noticed

And did Adam Feldman find that the liberal justices in general talked more than the conservatives?

Yes, And so you know, Justice sonya such who we are, and Alega Kagan, the three liberal justices were in the second and third spots. So you know, it's an interesting data point. It's hard to see with the casees that are remaining that that's going to wind up with there being more liberal results. But again, it could be that we see them writing concurring and dissenting opinions that you know, are really detailed and really examine a lot of different areas to law.

I like it when we hear about, you know, the personal lives of the advocates and how this affects them. Tell us what happened with these those two big affirmative action cases that seem to go on forever. Tell us about that, and what happened with the solicitor general.

Right, So the Solicitor General, Elizabeth free Lagger, she's pretty young. She has young kids who you know, are still in school, and these are big arguments. It was one of her first representing the federal government as the US Solicitor General, and so her husband and their mother came to watch the argument. But the arguments that day went on very long. They were already scheduled to go over, but you know, they didn't end until three, which is about three hours

Like us, dud uh huh, so except mine is so big. Now, I mean, I'll be picking kids soon. Okay, so you know, the justices have read the briefs, they know the law. Do the people you talk to think that arguments really can change their minds?

I think it really depends on the issue, and it depends a lot on sort of the facts of the case. You know, there there are going to be some issues that justices have thought about so much. I'm thinking about the affirmative action cases. It's hard for me to think that the justices learned anything in that argument or hurt anything in the argument that's gonna, you know, cause them to vote to a whole's affirmative action programs when they would have voted the other way. But you know, on

It's a terrific story. Kimberly, thanks so much for joining me. That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by subscribing to the Bloomberg Law Podcast or downloading this show at Bloomberg dot com. Slash podcast, Slash Law and attorneys get the latest in AI powered legal analytics, business insights