This is Bloomberg Law with June Brusso from Bloomberg Radio.
In a Washington, d C. Federal courtroom today, Donald Trump pleaded not guilty to trying to overturn the results of his twenty twenty election loss, answering for the first time the federal charges that accuse him of orchestrating a brazen attempt to block the peaceful transfer of presidential power and
interfere with the voting rights of millions of Americans. Special counsel Jack Smith secured a four count indictment on Tuesday that accuses Trump of conspiring to defraud the US by interfering with the counting of votes in twenty twenty, obstructing and conspiring to obstruct Congress's certification of the election results, and conspiring against the right to vote. Before leaving DC, Trump said this was a persecution of a political opponent.
This is the persecution of the person that's leading by very very substantial numbers in the Republican primary and leading Biden by a lot. So if you can't beat him, you persecute him, or you prosecute him. We can't let this happen in America.
Thank you very much, every much joining me is former federal prosecutor Robert Mintz, a partner Ma Carter in English, Bob. The first hearing in this case is set for August twenty eighth, and it will be before Judge Tanya Chutkin will be the trial judge. She's been on the bench for almost a decade and she's known for being tough at sentencing of January sixth defendants. Tell us a little about her well.
She was appointed by former President Obama and she has presided over a number of the January sixth trials and the results of those cases have shown her to be a tough sentensor, particularly when it comes to these crimes. She was famous for saying that the president is not the king, and so I think she has some strong views about what going on on January sixth. And although she was previously a public defender, so she was remember
on the other side of these cases. In her professional career before going on to the Bank, she was defending defendants. She's not a former prosecutor. She has a record of being tough on sentencing when it comes to January sixth defendants.
There was a case before her involving Trump where she rejected his attempts to block the January sixth Committee from getting his White House papers, and in comment, she's rejected the theory that the twenty twenty election was marred by widespread fraud and called it a lawfully conducted election. Is that viewpoint going to make some of Trump's defenses and claims harder.
I don't think so, because, remember, this trial is not going to be about whether the election was stolen, not going to be about whether they was fraud in connection with the election. It's going to be about whether prosecutors can prove that former President Trump knew that he had lost the election and yet made statements suggesting that it was stolen and incited people to interfere with the lawful transition of power.
The prosecution's case, it's really thorough. But do you think that they have things that they've saved, you know, additional things that are not in the indictment.
Oh? Absolutely. I think what we're seeing here is a very detailed indictment that reads almost like a crime thriller, but it sets out at the very beginning of the indictment really the government's theme, the central theme of the prosecution here is that former President Trump lost the twenty twenty presidential election, and that despite having lost, he was determined to remain in power. The prosecution wants to turn this case into a test as to whether or not
people who did on that jury understand that. According to prosecutors, this was not about a president who genuinely believed he had lost, but someone who knew he had lost would go to all ends, both legal and illegal, in order to try to remain in power. And the prosecution states, in the beginning of the indictment, the defendant spread lies that there had been outcome determinative fraud in the election and that he had actually won. And this is really
the central key statement of this entire indictment. These claims were false, and the defendant knew that they were false. That's what this case will ultimately turn on.
Is the toughest hurdle for prosecutor is going to be proving Trump's intent.
You always have to prove intent when it comes to a criminal case, so you always have to show that the defendant a knew what he was doing and b knew what he was doing was wrong. You don't have to specifically show that a defendant knew they were breaking the law. They just have to show what's called criminal intent or bad intent, that they willfully did something that they knew was a bad thing to do, that they knew was not truthful, that they knew was deceitful, that
they knew was in some way bad conduct. And here bad conduct is to try to incite individuals, encourage people, lead people to conspire with individuals in order to take unlawful means in order to overturn the election. So what prosecutors will try to do here is to say, Number one, former President Trump was absolutely entitled to his opinion. This is not a First Amendment case. He was allowed to
be publicly about the election. He was allowed to even claim that there had been outcome determinative fraud, even though that was not true, And he was entitled to formally challenge the results of the election, but he had to do it through lawful and appropriate means. And in order for prosecutors to win this case, they have to convince this jury that not only did former President Trump know that he lost, but that he took illegal means in
order to try to stay in power. And by that I mean they refer to the false electors, they refer to putting pressure on the former vice president but not certify the election when he had no power to do it, and they knew he had no power to do it. So that's really the crux of this case when it ultimately gets in front of the jury.
So will former Vice President Mike Pence be a star witness?
I certainly think that he will. One of the things that you see in this indictment, and it's called a speaking indictment, because remember, prosecutors don't have to lay out all of these facts in an indictment. All they have to do is basically assert what the charges are, the crime that was violated. They have to give enough detail so a defendant knows how to defend the case. So they have to say dates and time, and they have to make certain statements in order to support their allegations.
But they certainly don't need to go into the detail that Special Counsel Jacksbith did here. But he did it I think for a very specific reason because he knows that part of the defense strategy is going to be to try to play to the court of public opinion, and so he has to get his side of the case out there in front of the public. At the very beginning your earlier June, I do think he has held back some evidence, some statement, and he has not shown all of his cards in this indictment.
So the co conspirators six co conspirators are not named, but we can figure out basically who five of the six are. Why didn't he charge the co conspirators in this case? Is it just to streamline the case and get it to trial faster.
Well, that's a great question, and the answer to that is we're not quite sure. The Permit of Justice guidelines say that if you are going to name somebody in an indictment and essentially accuse them of committing a crime, you have to charge them. So it would have been entirely improper to name the co conspirators in this indictment because they're unindicted. They've not been charged with a crime.
And the theory behind that is simple. If you're going to name somebody in indictment and essentially a lege they committed a crime, you have to give them their day in court to clear their name. So because they were not charged they were not specifically named. That doesn't mean, however, that there can't be what's called a superseding indictment, which is a second indictment. We saw that happen in the mar A Lago case already, where there was a superseding indictment,
and prosecutors at that point can add additional defendants. So the reason for naming unindicted co conspirators can be several. It can be evidentiary because a statement by an unindicted co conspirator is admitted without being considered hearsay, because that
unindicted co conspirator was still part of the conspiracy. The other thing that prosecutors do in naming unindicted co conspirators is to essentially send a strong message to unindicted co conspirators that they are more or less in the on deck circle for the superseding indictment. In other words, they may very well be named in the next case if
prosecutors decide to obtain a superseding indictment. In that case, prosecutors can additional charges, they can add additional facts, and they can add additional defendant And it's quite possible that we will see a superseding indicting in this case and additional defendants get added to it. So it puts pressure on these co conspirators that perhaps decide to cooperate with
federal prosecutors. And there's no doubt that at least with some of these co conspirators, prosecutors are trying to put pressure on them in order to try to get them to cooperate. By naming them as an unindicted co conspirator, it really rackets up the pressure because it sends a very clear and public signal potential defendant that they are in the crosshairs of the government.
John Eastman's lawyer said that he is co conspirator number two. In the indictment, Eastman is described as an attorney who devised and attempted to implement a strategy to leverage the Vice president's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election. Eastman's lawyer said he's preparing a brief that he is going to submit to the Special Council outlining he was an attorney, was as
counsel and he didn't give any illegal advice. And he also said, if charged, he's going to trial, is there any world in which the Special Council would take what he says in a brief and go, oh, we're not going to charge him, then I don't think so.
I think this is all done for political seater. It's all done to play to the public. The prosecutors already know what positions each of these co co conspirators took in order to name them as co conspirators in the first place, prosecutors have essentially already determined that they have
committed a provable crime. Because if it comes to trial and prosecutors have not named these unindicted co conspirators as defendants, but prosecutors want to get their statements admitted a trial, they will have to convince the judge that these unindicted co conspirators committed a crime, and therefore a co conspirator's statement is not considered hearsay and those statements would be admissible.
So prosecutors have essentially made up their minds to the middle culpability of these unindicted coked spirits already, and it's highly unlikely that any threats or comments or additional information provided by any of their council are going to change the mind to prosecutors.
What I found surprising is Trump's lawyers have been on TV and they're still pushing the defense of First Amendment that he had a right to say what he said, and it doesn't seem to fit how the Special Council has drawn up this indictment.
Well, the Special Council has clearly anticipated this First Amendment defense because former President Trump's lawyers had already been hinting that that's the direction they were going to go if
charges were brought. And that's why he included a paragraph at the very beginning of the indictment saying that the defendant, former President Trump, had a right like every American, to speak publicly about the election and to even claim falsely that there had been outcome determinative fraud during the election and that he had won. Trying to get out in front of that issue and show that they are not trying to restrain his right to speak, They're not trying
to restrain his right to express an opinion. But what the indictment focuses on is not words but action. And part of the conspiracy is a group of people who could aspire with one another, often by acts and by words, to do something that's illegal. And so what prosecutors have done is they put in a lot of detail about acts that were taken, not just words that were spoken, although they did include a number of statements allegedly made by former President Trump that they say the former president
knew at the time were false. For example, they say the defendant insinuated that more than ten thousand dead voters had voted in Georgia, which is demonstrably false. They say that former President Trump astirred there had been two hundred and five thousand more votes than voters in Pennsylvania, another fact that is demonstrably false, and the prosecutors a leged
the president knew at the time was false. They also say that foreigner president Trump had been making statements that there was a suspicious jump of votes in Detroit, Michigan, again something they say is a demonstrably false statement, when that former President Trump knew it was false at the time that he made it. So they've attacked the First Amendment argument both by showing that statements made by former President Trump were knowingly false, but also really focusing on
conduct rather than statements. And I think that's why you did not see any charges that were brought directly as a result of the events of January sixth and the statements that former President Trump made at that rally that ultimately incided the right. They wanted to stay far away from an argument that the president truly believed that he had won the election and that all of his statements to the people that day that ultimately led to the
riot were protected by the First Amendment. They left that out of the indictment intentionally in order to anticipate this First Amendment defense.
Another defense that is being bandied about is adviceive counsel that he was just following what his lawyers told him.
Yeah, and I think that actually is a defense that may ultimately prove to be most troublesome for prosecutors. You know, here is a case where you had a long list of lawyers providing advice to the president, many of them telling him there was no election fraud. You did not win the election. His Attorney general at the time, Bill Barr, told him there was no election of fraud. Lots of other high ranking attorneys in the Department of Justice confirm
that view. But he picked and choosed among the lawyers he wanted to believe, and he ultimately found lawyers who were willing to tell him what he wanted to believe. There is something called a reliance on professional advice defense.
Now what that means if you were to go down talk to your lawyer, provide your lawyer with all truthful and complete information, and that lawyer tells you to do something, and then you do it, that you're breaking the law, you can rightfully raise as a defense the fact that you relied in good faith on the advice that you got from your lawyer. You didn't mislead your lawyer. You gave your lawyer all the relevant facts, and you just got bad advice from that lawyer. And that really shifts
the burden onto the prosecution here. To show that your reliance was not in good faith. Here, prosecutors will have to show that these lawyers were cooking up schemes that even the president knew was false. And they've done that by alluding to certain statements that former presidents Trump made about these various lawyers that showed that he really didn't believe what they were saying, that he knew that their statements and their legal advice was really on the fringes
of legality and was not supported by the law. And that is bolstered by the fact that other lawyers were telling him, including his own Attorney General that this information that he was getting from these other lawyers was simply not sound legal advice, and that it was not something that was true.
Is advice of counsel available if the lawyer is a co conspirator?
Well, that rigs is an interesting question because typically when the advice of council defense is raised, the lawyer is not a defendant in the case or a co conspirator. So here if prosecutors prove that those lawyers who are co conspirators also violated the law, and that really does exiscerate that defense. It undermines the defense because it shows that those lawyers didn't really believe what they were saying.
But prosecutors still have to prove that even if the lawyers didn't believe it, that former President Trump also didn't believe it.
Let's talk timing. So basically, from October through May, he's got four trials pending, and two of them are criminal. Manhattan DA Alvin Bragg has hinted that he'd be willing to push his trial date in order to help a federal prosecution in the interest of justice. Can the Special Council get this case tried before the.
Election, Well, that really is the central question here, because if these cases are not tried before the election, and if foreigner President Trump is the Republican nominee, and if he wins, if he becomes the next president of the United States, then with these cases pending, it's highly likely he will appoint an attorney general who will simply just dismiss these charges and not pursue them on the federal level.
That doesn't mean that the case with the Matt DA's office goes away, because that's the state case and the president can't do anything about those charges. But in terms of the federal charges, which are the most serious, that
really is up to the Department of Justice. In terms of the two federal cases they've brought in the Southern District of Florida and now in the District of Columbia, and the judges on those cases, generally speaking, if prosecutors tells the judge in Washington, DC and the judge in Florida the time that they'd like to pursue these cases, I think you'll see the judges go along with that. Prosecutors are the ones who are bringing these cases, and it's really up to the judges in terms of timing.
But Again, any judge, whether it's the judge in Washington, DC or the judge in South Florida, is going to be mindful of giving the defense appropriate time to prepare for a trial, because the last thing in the world they want to do is go to the lengthy trial, then have it go up on appeal in the event of it conviction and have it overturned because the defense council says, Judge, we did not have an adequate time to prepare our defense, that this was a rush in
order to get this thing tried before the election, and we were not able to adequately go through the mountains of evidence, interview witnesses, and prepare our defense, and the entire case gets thrown out on appeal. So the judge is going to be balancing the timing of this case.
I think no judge is immune to the fact that there's an election coming up on the impact of this trial on that election, But they're also going to have to be very careful full, whether it's the judge in Washington, DC or the judge in South Florida, to give the defense a fair and appropriate time in order to prepare.
With the other criminal indictments and the one possibly coming in Georgia. How important is this indictment? Is this case?
Well, there's an interesting debate really over which case is more easily provable by the prosecution. In terms of these two federal indictments. Some people think that the mar Lago case, while less important, certainly does not strike at the heart of democracy the way the January sixth case does. But some people think the evidence there is more straightforward and more overwhelming. On the other hand, that's the case that will ultimately go to trial in a venue that was
more favorable to President Trump. More people voted for him in the district where that case will be tried, whereas the district of Columbia is an area that former President Trump lost overwhelmingly. In terms of import I don't think there's anybody who could possibly say that the January sixth indictment, this case that just came down, could be any more important. It really strikes at the very heart of our democracy.
It essentially accuses the former president of losing the election and refusing to see power to his rightfully elected successor. There's nothing more important to our democracy than the orderly transition of power, and prosecutors have a leg tier that former President Trump attempted to subvert that very important procedural process.
Finally, what stood out to you about this indictment about the structure or the facts.
One thing very striking about this January sixth indictment is the enormous amount of work that went into putting this
indictment together in a relatively short period of time. It's clear that the Special Council's Office has interviewed hundreds of witnesses about the events surrounding January sixth, leading up to it, on the events that occurred after that, and there are other witnesses and another statement, no doubt that prosecutors have and will use at a trial that we don't even know about yet because the prosecution is not about to show their entire hand in this indictment. So it's very thorough,
it's very detailed. I think it's going to keep the defense guessing as to what other evidence may be out there. We saw that happen in the mar Lago case, where prosecutors withheld certain evidence when they first indicted the case, and then in the superseding indictment, they showed that they had more evidence than the defense even knew that they had I suspect the same may be going on here.
Part of the risk of any defendant who's going to try their case in public is that when they make statements about the indictment, they are more or less locking themselves into a particular position, and if it turns out the prosecutors have more evidence that contradicts those statements, that can ultimbly come back to haunt the defendant at trial.
Always so great to have you on the show, Bob, and to get your insights, that's former federal prosecutor Robert mens Up, partner maccarter and English. 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 podcasts. 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