TRUMP INDICTMENT
[00:00:00] JOHN QUINN: This is John Quinn and this is Law Disrupted. And today we're going to be talking about the criminal prosecutions of former President Donald Trump. And really we're from a legal standpoint and really from a lot of different standpoints, we're on unchartered territory here. This is the first time a criminal charge has ever been brought against a US president or a former US president so far as I'm aware.
And we're gonna have a chance to talk about issues such as whether this is politically motivated what the potential exposure is for President Trump. You know, some of these charges bring very long prison terms at 77. If he's convicted of any of these, it's possible he could die in prison. It raises a lot of interesting questions.
You know, for example, federal law mandates that a former president gets secret service protection for life without exception. If he goes to jail, does that mean he's gonna have secret service protection in jail? We're gonna talk about the different, the four different indictments, the charges, the potential defenses, the lawyers and judges involved, and maybe I'll we'll touch on the likelihood of convictions, what the defenses likely are, how strong the prosecution's cases are.
We'll also obviously touch on the implications for the 2024 presidential elections issues, such as if he's indicted, can he be elected president? If he's convicted, can he be elected president? And we'll obviously touch on the broader political and policy implications on the longer term from this unprecedented set of circumstances.
You know, we've never had this before in this country. There are countries in the world where it's pretty routine that you prosecute the last president. It happens a lot in South Korea, for example. It, it happens sometimes in France. It happens in Brazil. It's never happened in our country. And we have with us today, two of my partners who are eminently well qualified to discuss this subject.
We have my partner Steve Madison, who's based in our Los Angeles office. Steve is a former u assistant, United States attorney, was a prosecutor for many years. We also have with us Robert Zink, who's based in our Washington DC office. Rob was formerly head of the fraud section of the United States Department of Justice.
So gentlemen, welcome to Law Disrupted, and thank you very much for discussing with us this very important topic, this important topic, historic topic really of the criminal prosecutions of our former president. And let's talk. There's, there are two federal prosecutions. One in Washington DC and one in Georgia.
And let's begin with those. And Rob. Maybe you can kind of give us a picture. You pick which one you wanna discuss first, either the Washington one or the Georgia one, and give us kind of a rundown of what the charges are, what the President is faced with there, and what that looks like in terms of what the government must prove and what President Trump's defenses likely will be, and what the, you know, to the extent you can handicap the strength of those defenses or the strength of the case.
We're very interested in hearing your opinion.
[00:03:16] ROBERT ZINK: Sure. Well thank you John for having, having me on the pleasure to be here with with you and Steve. So let's start with the, the first federal indictment returned by a federal grand jury in the US District Court for the Southern District of Florida.
The original indictment was returned in June of this year, and then a superseding indictment, it's a indictment with additional charges, was returned in July of this year. A charging president Trump. Walt Manda and Carlos Oliviera with various federal crimes, which I'll detail in a second. But just to set the stage for our listeners, obviously President Trump needs no introduction.
Walt Manda was a valet employed by the United States Navy, who is assigned to President Trump. He's colloquially called his body man. He's the individual who is was at the time of President Trump's presidency, the guy who followed him around everywhere and, and and joined some of those same responsibilities after the president left office.
So he's been charged as well along with an individual named Carlos Oliviera, who is the, essentially the, the property manager of Mar-a-Lago. That's the resort where President Trump resides at various points during the year. So it's a three defendant indictment charging these three individuals with very serious federal felonies, which I'll detail in a second.
Couple critical things to know before we talk about the charges and the underlying conduct. President Trump was charged in the Southern District of Florida, which as we all know, went red, went Republican for him, and went Republican against President Biden in the last election. That's kind of point number one.
Point number two is as lawyers know, many long non-law don't know this. There are different divisions, different courthouses that reside in certain federal districts. And the specific division where President Trump will be tried is called the Fort Pierce Division. Again, that's a division within the federal district, southern of Florida at issue.
The reason that may be of some importance is the Fort Pierce division historically has trended very conservative, and you know, you would hope politics don't play a role in any federal criminal trial, but common sense and intuition tells us that it might. So it's a, it's just an important data point for, for folks to know about.
The judge in the case judge Cannon was appointed by President Trump. He was 42 years old was an associate, a very good law firm called Gibson Dunn, and then served for better part of seven years as a assistant United States attorney in the Southern District of Florida. That's the district where President Trump is being prosecuted.
So at the end of the day, you have a, a pretty conservative division where he is gonna be tried with presumably conservative jurors. A a judge was appointed by the president himself and you know, all of the pomp and circumstance that comes with a prosecution of this type. So, turning now to the, to the kind of charges at issue, there are really John two buckets of charges.
The first bucket is the unlawful retention of classified documents. President Trump's been charged with 32 counts of withholding or maintaining. Unlawfully maintaining documents that have been marked privileged for natural security purposes. So does that mean
[00:06:33] JOHN QUINN: there's, does that mean there's 32 documents
[00:06:36] ROBERT ZINK: that I was, I was going right to that, John.
So the 32 counts mapped back to individualized documents. Okay. There at the classified markings that were allegedly unlawfully maintained by, by the present. So that's kind of bucket number one. Bucket number two is a hodgepodge of obstruction charges relating to false certifications to the F B I, that all the documents have been produced in connection with relevant investigations.
There are allegations in charges that documents were moved, physically moved at the direction of the president to prevent attorneys from getting their hands on the documents and producing them. And there are charges related to attempts to delete footage at Mar-a-Lago. Showing attempts to move documents in advance of, from
[00:07:24] JOHN QUINN: cameras that were in place, in rooms where the documents were located, correct?
[00:07:29] ROBERT ZINK: Correct. And those, the video obstruction charges, I'll call them, are, are, we're the subject of the Super Sea indictment in July. So just to, to, to bring it back home. It's, we're in southern just of Florida, and we got a whole bunch of charges, two categories, hold onto stuff you're not supposed to, the classified documents and then obstructing the federal government's ability to get their hands on those documents.
[00:07:52] JOHN QUINN: Now, the, I mean the first set of charges, I mean, for somebody, this is not my area, as you gentlemen know, I mean, seem like black and white. If you're not supposed to have classified information and you've got it at your home after you're president, what's there left to argue about?
[00:08:10] ROBERT ZINK: It's a great question, John.
It's, you know, in my view as it relates to these two buckets, I actually think these are the easier to defend because the, the men's rea of the mental state required to prove guilt beyond a reasonable doubt is willful. So the government is gonna have to prove that President Trump knew what he was doing was unlawful.
[00:08:30] STEVE MADISON: So
[00:08:31] JOHN QUINN: in other words, they have to prove that he knew the law was he should not have these documents and he kept them anyway.
[00:08:39] ROBERT ZINK: Yes, with, with a nuance. He doesn't know this needs to know the specific law at issue, just that it was unlawful as a general proposition for him to maintain. And there's a case which I think Steve can, can talk about in some detail whereby judge Berman Jackson back in 2012 held under a different statute.
So it's a different statutory regime. The Presidential Records act that the president has the unilateral authority upon taking documents. To render them personal as opposed to presidential. All right. So that's,
[00:09:09] JOHN QUINN: that's personal as opposed to pre presidential, it's not unclassified as opposed to classified.
Correct. And it's, it's sort of an, an analogy, if you will, that might a case that kind of might give him a good faith belief that in reliance on this, I thought it was you know, I could render them essentially unclassified or Okay. For me to have possession of just by taking possession of them.
[00:09:32] STEVE MADISON: Correct.
Yeah. If I could chime in, it's great to be with you and, and Rob as well. I, the, the case Rob's referring to is the infamous Clinton sock drawer case, in that case written sock. So there
[00:09:44] JOHN QUINN: are documents, I'm guessing you're gonna tell me there were documents or other things that President Clinton kept in his sock drawer.
[00:09:52] STEVE MADISON: It's even better than documents. It's tape recordings, which of course, hearkens back to Watergate for those of us old enough to remember the, the Nixon tapes. But in that case, Taylor branch, famous historian and author, interviewed President Clinton in a series of lengthy recorded interviews while Clinton was president and President Clinton, after he left the White House, kept the tapes and kept them in his sock drawer.
And a, I think it was a conservative think tank, found out about this and sued the National Archives claiming that these were presidential records that the archives were required to compel the former president to return. And of course, dirtying up President Clinton in the process. And this is sort of classic Trump to throw up these alternate realities and to cite and point back at the the Clinton software case.
They're completely different. In the sense that that case involved presidential records, not classified documents. There was never an issue about classified material in the Taylor Branch tapes. The book was ultimately, ultimately published, by the way, I think it's called Wrestling with History, the Clinton Tapes or the Oral History.
But I, you know, I agree with Rob on the Florida case that it's easy to defend and, you know, we're always very aware of the judge and the jury. And so there you are in Northern District of Florida very conservative, you know, pro-Trump sort of populace in terms of potential jury. You'll have some mental defenses and good old nullification.
The idea that the jury just will refuse to convict even if they understand deep down that he's good for him.
[00:11:34] JOHN QUINN: So, I mean, this is all goes to, this all goes to mens Rea. Did, did he know it was unlawful? And what you're telling us is that there is some precedent that he could rely on, even if it doesn't really map on to this particular case.
I mean, ha has, has he or his lawyers actually invoked this case yet in any filing or any argument in the court? Is that already in play publicly before the court? They have,
[00:11:58] ROBERT ZINK: they have. So this it's been briefed in a couple different contexts, so I think we can expect it to be one of several legal defenses that are, that are pted by the Trump defense team.
John, I should probably note also that, to estimate that second bucket of charges, the obstruction charges the defense here, I think if I were the defense attorney, is, is a little bit different. It, it, it, it may, based on my reading of the indictment, it appears that the federal government appropriately it took sworn testimony.
From witnesses, but it, it is also, at least my quick view, that there's likely not a pled cooperating witness on the obstruction conduct for the federal government. So what that means as a practical matter is they might have a tough time narrating the obstruction conduct. They undoubtedly got bits and pieces from say, former attorney's resident, but those, those sworn statements, if they're grand jury, and I'm sure many of them were, were not subject to cross-examination.
So many of the witnesses that form the basis of the obstructive conduct charges will be, you know, subject to very, very vigorous cross-examination. And these witnesses are, are likely to be very favorable for the president just on a personal and professional level. So I'd be interested to see how these witnesses fare up on cross-examination.
So in other words,
[00:13:16] JOHN QUINN: the witnesses to the idea that he moved documents to different locations so that couldn't be found or that he had tapes erased. The prosecution may have some challenges in getting the direct testimony, establishing those facts, the predicate facts, the obstruction charges. Correct.
[00:13:36] ROBERT ZINK: And, and look, that, that, that analysis changes altogether if either Mr. Nta or Mr. Oliviera decides to plead and cooperate with authorities. I think if, if that happens and there's corroboration for their testimony, there'll be, there'll be difficult charges to defend. But if that doesn't happen, if there is no, you know, flipping is the term, but cooperation mm-hmm.
By the other co-defendants, it may well pose a, a, a pretty significant hurdle for the, for the
[00:14:00] STEVE MADISON: just department.
[00:14:01] JOHN QUINN: I mean, we often hear that the coverup is, is worse than the crime. And what I'm hearing you say is that the, the document retention charges, the, the charges that started all this, that that's you, what I'm hearing is that you think that's very defensible, but the obstruction charges, depending upon whether there's cooperation or not, May be much harder to defend.
No, that's exactly right.
[00:14:25] ROBERT ZINK: And I, I'll say this with a caveat that everything with respect to President Trump, you kind of is, is new. But if this was an ordinary case, I think it is unlikely the department would charge anybody with the unlawful retention of classified documents with, without other aggravating factors like the obstructive conduct, the alleged obstructive conduct we, we see here.
Right.
[00:14:47] JOHN QUINN: Well, I mean the supporters of President Trump, and I think 40% of the population I read believes that the last ele, the last election was stolen. I mean, he has a lot of supporters and they're gonna say, I assume look, he's not the first, you know, president or former government official to hang on to classified information.
That this is a case of selective prosecution. That example is being made of him for political purposes. Does any of that get into the courtroom?
[00:15:18] STEVE MADISON: It's up to Judge Cannon, but
[00:15:19] ROBERT ZINK: I, I think, I think in a case like this, a any wise judge is, is, is likely to allow the defendant and defense team wide birth with respect to the introduction of evidence.
So my guess would be a lot of stuff that may be close to line is gonna be coming in. So it, it may well be the case. That kind of information comes in.
[00:15:40] STEVE MADISON: Go ahead. I'm sorry, Steve. No, excuse me. John. I, I agree with Rob on that. You know, it's hard to imagine a, a show trial like this if it got that far where president Trump wouldn't testify.
And at that point it will be, you know, free ranging, especially with the mental elements that are required that I, I would think a court would be darn near powerless to, to not let him talk about his state of mind. And as you know, he'll wax rhapsodic about all the other transgressions of the other side.
[00:16:12] JOHN QUINN: Right. So do you, do you think in this case given the menza rea issue, it's, it's highly likely that the, the president will take the stand?
[00:16:21] STEVE MADISON: I would, but Rob, we haven't talked about that. Take this on that. Yeah. So again, just
[00:16:29] ROBERT ZINK: arm Sure. Quarterback, if there is on the, you can get in the men's right. Evidence from another witness, potentially if, if that witness exists.
And so I don't think it's necessary that the president testifies to establish kinda the men's right defense. But to Steve's point, depending on your voter makeup, you might want President Trump to take the stand, look the jurors in the eyes, and try to persuade them himself. And it, it might ultimately be the most effective defense
[00:17:00] JOHN QUINN: strategy.
I mean, he's a pervasive, he's a persuasive, charismatic guy. He, he could, I could see him being a, a powerful witness in his own defense, especially if the judge doesn't have control of the courtroom. And that's hard to imagine, you know, how, how the judge keeps him in, you know, between the
[00:17:19] STEVE MADISON: rails. Yep. Well, you, you know, John,
[00:17:21] ROBERT ZINK: to that point, Tom Barrick a, a senior advisor to President Trump was charged with various federal felonies, including lying to the
[00:17:30] JOHN QUINN: fair Yeah, yeah.
Acting foreign, foreign agent registration. Correct,
[00:17:34] STEVE MADISON: correct.
[00:17:35] ROBERT ZINK: It's, it's, it's actually more serious statute now. They charged him with, with acting as an agent of a foreign government. Correct.
[00:17:41] JOHN QUINN: Yeah. We did a po we did a podcast with the defense counsel in that case.
[00:17:45] ROBERT ZINK: Oh, really? Yeah. Well, it was a very effective defense strategy.
It ultimately came down to Mr. Barrick, took the stand and was incredibly persuasive. Yeah, I think everybody in that room, I. Was persuaded by his version of that. So it's, it's a strategy with public officials who are charismatic and have the human touch that that can be very effective.
[00:18:04] JOHN QUINN: Okay. Well that's the federal case in Florida.
And it sounds like the the class, the underlying the principle classified documents case is maybe a relatively easy case to defend the obstruction case. Maybe not. It depends. The other federal cases in Washington DC Rob, tell us about that case.
[00:18:25] STEVE MADISON: Sure.
[00:18:25] ROBERT ZINK: So president Trump himself alone was charged in the District of Columbia this year with four federal felonies.
They they're Ale Conspiracy, which is a shorthand for conspiracy to defraud United States Government. Count two is conspiracy to obstruct an official proceeding, and that was Congress's certification of the electoral vote on January 6th. Obstruction itself, not conspiracy, but obstruction itself for president Trump's alleged attempts to interfere with the certification count Congress's certification count on the sixth, and then a crime called conspiracy against Rights, which is, is new to me.
It's, it's a statute that is not employed frequently in these, in white collar cases at least. And it's a, it's charges that President Trump used intimidation and the exercise of individual's right to vote. And I think that the plain English version of that is there was interference with the elector's ability to properly certify the votes in their states and before the United States Congress on January 6th.
The judge in the case is Tanya Checkin. Unlike the case charged in S D F L, that's the southern of Florida, the case charged here in dc. Is before a judge who was appointed by president Obama, and she is certainly not a Republican. The voting population of District Columbia is widely reported to be over 90% Democrat.
So you have kind of a mere image of the, the judge and the jury in DC as opposed to the Southern District of Florida. So that's kind of the basics of the case. And I'll talk briefly about the, the underlying misconduct. It is, it is vast, really, really vast. The, the grand jury and the government charges kind of five or six different buckets of, of misconduct by, by the president.
Now, the first is in committing those four alleged crimes, the president made publicly made false accusations. The election had been stolen, kind of bucket number one bucket number two. He, he and others attempted to interfere with and get state officials to change the electoral votes in certain states, including Arizona, Georgia, Michigan, Pennsylvania, Wisconsin.
The third bucket of alleged misconduct is an attempt allegedly by President Trump and others to submit falsified documents, false electoral certifications to the United States Congress in or around January 6th in an attempt to inhibit delay, overturn the interfere with the vote by Congress to certify the electoral college.
So there, there are other three other buckets of misconduct I should highlight Just very briefly. The first is allegations that President Trump unlawfully enlisted the support of, or attempted to elicit the support of Vice President Trump. Oh, oh, Pence, vice Pence, sorry, pardon me. Vice President Pence and failing to certify the vote on January 6th.
The President Trump also unlawfully and improperly enlisted the support of senior D O J officials to lean on state officials to change the electoral counts in certain states. And finally, that the president took advantage of a very upset group of individuals who had come to the White House on January 6th and used them to, in an attempt to interfere with the proceedings on January 6th, the congressional proceedings to certify, certify the vote.
When you say
[00:22:06] JOHN QUINN: people who came to the White House, who are you referring to?
[00:22:08] ROBERT ZINK: I'm talking about the, the individuals who came to the White House, where President Trump made remarks to them about what had happened, and many of whom, then a march on the Capitol and have been convicted of trespass and obstruction justice.
Okay.
[00:22:22] JOHN QUINN: Mm-hmm. I, I didn't realize that there are actually some of, of these proud boys characters who had come to the White House, heard a speech, and then decided to storm the Capitol Building
[00:22:34] ROBERT ZINK: the, it is John, it is certainly true that many of the individuals who were charged in connection with the January 6th cases were at the Capitol.
All
[00:22:42] JOHN QUINN: right. All right. So this is a, a broad range. I, sorry. I'm
[00:22:45] ROBERT ZINK: sorry What? Pardon me. We were at the White House and then eventually migrated to the Capitol. Alright,
[00:22:48] JOHN QUINN: so as you say, these sound like very broad, a wide ranging charges. I would think, well, my reaction to this is first, first amendment. I mean, he can say the election was stolen.
This is wrong. This should be changed. If he believes in good faith, you know, again, I assume there's a mens rea requirement here because we're talking about crimes. If he generally believes that he could de direct people to, up to a point to take certain actions. So on the one hand, I, I would think that there's a path here for him to get an acquittal on this.
But on the other hand, the charges are so wide ranging and seemingly amorphous in some respects that I think they probably there's a lot of ways to lose, right? I mean, there's a lot of territory that you have to cover if you're the defense here.
[00:23:41] ROBERT ZINK: Yeah. But this, this, I I completely agree. This one is, this one is equal parts defensible and incredibly challenging.
And the president's team has been wise to try to transfer proceedings out of D D C. There's an old saying at the department that if your opening statement is good enough, it doesn't matter what the crime is, you can convict anybody of anything. And, you know, when I read this indictment, there's just a lot of stuff in there.
Mm-hmm. And a lot of, there's a lot of stuff, and it, it certainly reads, you know, bad. What I struggle with is mapping it back to elements, the elements of the charged defenses. You know, it, it may well be a defense strategy that, that a lot of this is just surplusage. That's a term in, in the criminal world for irrelevant prejudicial information that it really has no bearing.
Right. The underlying elements of the offense,
[00:24:27] JOHN QUINN: I mean, what you, what what you're saying is, is contrary to what we hear about the, the prosecutor here and the prosecution. I think the man's name is Jack Smith. Is he the prosecutor? Yes. That, you know, it's lean, it's mean, it's paired down. You know, this is you know, very focused, at least this is just, I haven't read the indictment you have, but from news reports, that's the portrayal we'll get.
But what I'm hearing for you is that it's, that's not fully accurate.
[00:24:56] STEVE MADISON: Well
[00:24:57] ROBERT ZINK: lemme, lemme say a couple of things. So Jack Smith is a process with tremendous integrity. He's excellent among, among the best that has ever, at least in my generation, been in the department. So he's excellent in every respect.
And it, it is true that the indictment is lean and mean with respect to defendants. I think Steve's gonna talk about the George indictment, which is decidedly different in terms of number of defendants and the number of charges in the January the d d c indictment is, are, are pretty few. There's only four.
Kind of my, what I'm simply pointing out is the, the breadth of the conduct at issue. Mm-hmm. It doesn't seem to me to, to map back to the elements of the offense. Now, if you're in front of a judge that's gonna let everything in, it's a brilliant, it's a brilliant prosecution strategy. Right. It all comes in and a jury who may be predisposed to not like President Trump hears about all this bad stuff.
Which may have arguable marginal relevance to the elements, and it's an easy conviction if you're in front of a different judge, the judge might take the prosecution a task on going through each and every paragraph of the, of the indictment with an understanding and explication from the government about how it's relevant to the elements of the offense.
So a lot of this is gonna come down to Judge Sutton's view of, of relevance and you know, what the elements of the underlying offenses are. So how do you handicap
[00:26:13] STEVE MADISON: this?
So
[00:26:20] ROBERT ZINK: the whole thing is a little bit ironic to me because I think the setting aside guilt innocence, just looking at the charges and the allegations, the indictment, I think the stronger of the two indictments is the Southern District of Florida indictments. I think it's also the most challenging to win for the federal government on, on the allegations and on the charges.
I think the DC indictment, I. It's much more of a stretch. Because at the end of the day, if you can show that President Trump directed people to destroy videotape of an impending search warrant or in connection with the grand jury subpoena, it's, that's bad. That's obstruction. Mm-hmm. So that, that should be easy to prove.
But in d d C, like I said before, the charters are quite novel and wide ranging, but you have a, a court and a voting population that you know might not care as much about the legal, the legal nuances of the elements. Uhhuh.
[00:27:18] JOHN QUINN: Okay. All right, Steve, let's turn to you and talk about the, the two state indictments, the one in New York, which I think was the first of all these criminal prosecutions that were brought in New York State and then the one most recently in Georgia.
[00:27:34] STEVE MADISON: Yes. And you know, it's interesting and sort of following onto your last exchange there with Rob, that.
You know, when I first looked at these state cases especially Georgia, I, I thought, you know, they've really jumped the shark. I mean, by the time the Georgia indictment came in last week, just last week, you know, we had three pending prosecutions to federal by special counsel, Jack Smith. You know, these, these matters do involve national elections.
Trump was the president. We know all about January 6th, and you have the New York case, which I'll talk about in a moment. But as I've looked at it more closely, I, I think I may have been wrong. And and the reason I say that is that these, both the, the New York and the Georgia cases sort of widen the aperture on Trump in in the New York case, sort of temporally because it deals with conduct before he was president.
And in the case of Georgia, it really opens your eyes too. The intentionality and breadth and scope of the alleged conspiracy to undermine our democracy and our elections. So let me, let me just dive in. The, the New York case was the first, as you mentioned, and I would also ask you to think about the impact that the state investigations and ultimate charges may have had on D O J.
'cause Jack Smith is a special counsel, but he's part of D O J. And you know, up until the New York indictment, not much was happening federally the, the sort of department was ringing its hands and not really sure how to treat Trump. You had all, of course, the Mueller investigation on the, the various congressional, you know, Trump's the only president in history to be impeached twice but not removed from office.
But so along comes Alvin Brag. He's the Democratic district attorney, if you will, state's attorney for New York. And even there, the, the charges are come in, in May of 2023, but even before that, remember when he came into office, he poo-pooed the Trump, the Trump investigation probably for many of the reasons that I, I was mentioning.
And, and you'll recall that there was this sort of very unusual incident where two senior prosecutors, mark Pomerance and Casey Dunn did sort of a noisy withdrawal that resigned their positions as assistant district attorneys in New York. And they publicly said the reason was that Alvin Bragg, their new boss, was not going to follow through on the investigation that they had conducted.
In the Trump matter. And at some point after that, Bragg did a u-turn and, and then announced the charges in May. As I said, now this New York case is called mostly the hush money case because this hearkens back to a time when Trump was only a candidate, not president. And it involves this sort of fixer facilitator, Michael Cohen, who was a lawyer and a longtime accomplice of, of Trump's.
And essentially the allegations are 34 counts of falsifying business records under New York law. And the idea is that the Trump campaign had a, a, a practice called Catch and Kill. They called it that catch and Kill. If there was negative information out there, they would catch it and kill it. And the way they would do that, by and large was payoffs.
And so the main sort of centerpiece of this charge is. That working through the National Enquirer a $150,000 payment was made to a former playmate and Playboy model named Karen McDougall to keep her quiet. And then Michael Cohen paid $130,000 to Stormy Daniels of the infamous stormy Daniels, Michael Avanti and all, who also claimed that she had had a sexual relationship with, with Trump.
And the idea was we'll pay them off, keep them quiet according to the charges. And, you know, Cohen has pled guilty to this. He pled to six or eight counts and served a three-year prison sentence and was released. That was
[00:31:59] JOHN QUINN: for, for his participation in the payoff of Stormy
[00:32:02] STEVE MADISON: Daniels. Correct. That was, I think that was five or six of the, of the charges.
And it was a tax matter in his case, and he was convicted federally. But in the state case, the idea is, There were false business records in the sense that Trump was paying these as so-called legal fees, claiming that they were legal fees, but in fact they were payoffs and, and a reimbursement for the, the hush money.
Now, a couple of really interesting things about this case. First of all, the feds declined to prosecute this very case. They, they declined and for good reason. The, the federal government brought a very similar case against former presidential candidate in US Senator John Edwards, that you may recall, where John Edwards had had a child out of wedlock at a time when his wife was very sick.
She later died of cancer. And he too had used campaign funds through his chief of staff or campaign manager to pay for the expenses and the like of the child and the government. Took the position that those payments were essentially campaign contributions, which weren't disclosed as such, or, or campaign expenses, if you will, and they lost that trial.
Famously, it's very hard to prove that the central or primary motive for a payoff like that is campaign related. And that would be the element that they would have to prove in this New York case. So, you know, the Fed's declined. It's a tough case. But here again, show me the judge and I'll show you the law.
Show me the jury in a jury trial and I'll, I'll have a better sense. This is New York City. Probably a good jury pool for the, the prosecution. Now there are a couple other things that we should talk about here, because there is a concept that many of us are not intimately familiar with 'cause it's rarely invoked.
And that is the idea of removal to federal court of a. Criminal case. So in this case, that's,
[00:34:09] JOHN QUINN: that's news to me that you could remove a federal court. Is it on grounds of diversity
[00:34:13] STEVE MADISON: or what? No, it's actually again, sort of an obscure provision under Title 28. It was adopted initially in the war of 1812 and then amended.
And the current version was, was enacted in 1948. But the idea is, and it makes sense if you think about our republic and the sort of states and the, and the federal government, the idea is that no federal official should be held criminally responsible for carrying out his official federal duties in a state prosecution.
There, you can think of lots of examples where state prosecutors might be unhappy. Civil rights would be one, for example, taxation might be another where they might be unhappy with the conduct of federal officials. And so in Title 28 essentially the judicial code is a provision that a federal official, or one acting at the direction of a federal official in a matter that relates to their federal duties can remove any criminal prosecution.
So, Trump tried this in the New York case, and the way you do it is you file a petition for removal in federal court and then a federal judge rules on that. And in that case, the judge rejected his attempt to remove, because he said he was a can candidate, not an actual federal official at that time.
And he famously said, you know, paying hush money to a porn star is not defending the constitution, which is sort of one way of putting the, the subject matter requirement, you know, so he struck out on that. But so the case is headed to trial. It's set for March of next year in state court, but Alvin Bragg has said he's open-minded about a continuance.
He's not looking now to sort of be the, at the head of the line. And I think many of us believe that, that this charge and the leaks about the Georgia investigation, which we can turn to now really got D O J off the dime and spurred the Jack Smith charges, the, the cases that Rob described so, well, you know, the.
The Florida documents, classified documents case was in late July, and then early August they were right back to back came the, the January 6th, the insurrection case against Trump. And, and by the way, on the insurrection case, you know, it's one defendant and many of us would not be surprised if there's a superseding indictment and other defendants are added, but that mm-hmm.
That remains to be seen. Well, well,
[00:36:55] JOHN QUINN: I mean, Steve, getting back to the New York State Court case. Yes. As I understand it, New York has kind of unusual law about books and records that if you maintain inaccurate books and records, that's some kind of free floating misdemeanor. It's not like you submitted to the government for this, you did this.
There's some kind of a, you know, in a vacuum amorphous idea, if you have inaccurate books and records, that's a misdemeanor. And what I understand is what gets this to a felony is there's also a principle or a law that, well, if you do inaccurate books and records in aid of a felony or otherwise unlawful conduct, then that becomes a felony.
And the theory was here, as I understand it, not that he used money you know, campaign funds per se. Again, correct me if I'm wrong, to pay off Stormy Daniels. He used his money, but he paid her off in order to preserve his candidacy and that therefore it was really in aid of his candidacy, that becomes a campaign finance violation because he didn't properly declare it.
And that's how they get to the
[00:38:07] STEVE MADISON: felony. Precisely.
[00:38:09] JOHN QUINN: Alright, so what Steve, what I don't get here is it seems like there's a lot of reasons other than wanting to preserve your candidacy, that most men in this situation would wanna keep Stormy Daniels quiet. Now, maybe, maybe in the case of Donald Trump, you, you would say maybe he doesn't care so much, you know, his wife or whatever, his family, whatever they may think of him.
The other reasons why you might wanna keep somebody quiet. But it seems to me that's kind of an obvious defense
[00:38:38] STEVE MADISON: here. Well, on information and belief, you're right about what most men would feel in that situation. And, and Trump certainly will not you know, hue to any one version of things. He'll, he'll take whatever suits him.
And that is the argument that his lawyers have been making that this was embarrassing and no, what, whatever his view you know, it's, you could even quote Hillary Clinton that nobody knows what's going on inside of a marriage except the two people in it. And so that certainly would be a lot to think about for reasonable doubt for jurors, because you're right, John, the government's theory here, what makes it a felony is essentially the campaign.
Related nature of the fraud. They were trying to protect the campaign, and that's a high standard as the John Edwards case proved with those acquittals.
[00:39:31] JOHN QUINN: Alright, so if I'm, if I'm handicapping this one I'm thinking he, there's a good chance he's gonna win that case. He'll get an acquittal in New
[00:39:38] STEVE MADISON: York State Court.
It's a tough case. Even though Michael Powell, you mean for the prosecution? It's a tough case. Yeah. Excuse me, for the prosecution. It, it, it is a, a tough case and again, I think the biggest value may be that it was sort of the booster rocket maybe that got Jack Smith and the d o j off the dime and then led to those cases, which probably should take priority ultimately.
[00:39:59] JOHN QUINN: Okay. Let's talk, let's talk about, unless you have something else on that, I was gonna turn to the state court case in Georgia.
[00:40:05] STEVE MADISON: Yeah. And we, the latest case, and I'll come back to the removal thing that I mentioned, so please remember that. Let's just put a pin in that. But, so then last week, Georgia comes in and, and here again, my initial reaction was, You know, they've really jumped the shark.
You know, this sprawling indictment under Georgia law you know, 41 charges, 19 defendants, not just Trump, but you know, there the whole sort of Star Wars bar of Donald Trump land. You know, Rudy Giuliani is there. This is gonna be a circus. It, it's already a circus, John. And sure enough the chief of staff for the president, Mark Meadows, has already filed a petition to remove.
Now these aren't cases that you find a lot of precedent for, but there's some reason to believe that if one defendant removes the entire matter gets removed. My sense, just sort of a federal court supervisory power would be, that's not necessarily true, but I think many of us are expecting when Trump.
Ultimately appears later this week that he too will file a petition to remove. And so let's just drill down a little bit on that, because why would you wanna remove a case from state court to federal court? Well, in Fulton County, it is a, probably a very anti-Trump jury pool. And you have, but ironically, you have a state court judge there who's a Republican who has to run for reelection if it's removed to federal court.
Now you're in the northern district of Georgia, which tends to be pro-Trump politically. And so you're looking at a, probably a better jury pool. But the judge has already been assigned because of the Meadows petition, and it's, I believe it's Steve Jones, who's a, a black president Obama appointee.
So, you know, you're sort of trading off there perhaps in terms of Just the forum, you know, the judge and the, the jury. A lot of media have commented that he wants to be on federal court, not state court because he can get a federal pardon. And that is untrue. When you remove under this obscure title 28 section the state charges are simply tried in federal court and the state, pardon and commutation law also applies.
So it's really like you remove to ensure a fair trial and the federal court presides over it. But all the other rules are the state rules in terms of the charges, the elements, and ultimately the sentence and pardon or even commutation. And in Georgia it's, it's really interesting. There is a you know, speaking now about pardons for a moment in Georgia, there is a Republican governor of Brian Kim.
But he's one of the individuals that Trump tried to bully and strong arm into finding, you know, fake electors or trying to find famously, you know, I need to find 11,000 votes. So Kemp is someone that Trump has ridiculed and attacked and blasted and so unlikely think he'll be of any help, and that might not matter anyway because in terms of a pardon, in Georgia under state law, the governor doesn't, pardon anyway, an independent board appointed by the governor, but independent, nonetheless, they have to vote and consider pardon requests and get this, you can't even apply until you've served five years of your, so that's not a reason to remove, I think the decision there will be made much more around timing of the trial and the jury pool and, and the judge.
[00:43:53] JOHN QUINN: Tell us about the, the charges there. How, how is it different than Washington? They both seem to be directed to an effort to overturn the
[00:44:00] STEVE MADISON: election. They are. And when I said widen the aperture, you know, what it reminds us is that even though we talk about our federal elections for president, for example, the way our democracy is set up is it really is the states that conduct the elections.
You know, we saw that a little bit in Bush v Rore, and then now in this case, and in the indictment, we really do see the, the, the real machinery of democracy is run at the state level. And Trump and his cadre were very well aware of that. So they had this really organized campaign to reach into Georgia and try to threaten and intimidate and bully the elected and, and unelected there.
To do anything they could to essentially fabricate a a picture that the election had been stolen and that Trump either had actually won or that it wasn't clear that he had. I mean, there's some allegations, some counts that relate to this place called Coffee County in Georgia, where they actually were trying to get at the voting machines to damage them so as to be, be able to say falsely that there was a problem with the voting machines.
And some of those local electors are now looking down the business end of this federal excuse me, state criminal indictment. It's a RICO charge. You know, that's the one that was, this is the state analog. But you know, that's what they used for the mob and the cosa Nostra and all. But when you read the, the allegations, Trump is alleged to have behaved very much like a mob boss.
Although David Remnick in the new Yorker today, comments that he wasn't a very wise mob boss because usually those guys. Have someone make those phone calls for them. And for sure Meadows is in there. And a a d o j lawyer named Jeff Clark, who is accused of fabricating base to try to get higher up in the Justice Department to intervene in the election.
It really paints a pretty sorted tail and also put some meat on the bones of what we saw on TV on January 6th in terms of what was behind that in terms of this sort of coordinated campaign. So now I have to say from a political and public policy perspective, though, I still think there's a view of all this that it's concerning for the future,
[00:46:26] JOHN QUINN: right?
Yeah. Well, I mean, before we get into that, yeah. You're handicapping of this Georgia case. I mean, what you're telling us, it's got very specific allegations, instructing, instructing people to damage voting machines. Yep. That that sounds. That sounds pretty serious, and if you can prove that that sounds like a crime to me.
[00:46:46] STEVE MADISON: No question. But beyond a reasonable doubt, and of course unanimity is a constitutional requirement in criminal cases I think in Fulton County a prosecutor should be able to get a unanimous jury to convict. I'm not so sure if it's in federal court, in the northern District mm-hmm. Of Georgia, you know, and again, there are a lot of legal moves and motions and the like that have to unfold first.
And in Georgia, of course, the case was just filed. The defendants haven't all even appeared yet. So we don't have a trial date.
[00:47:18] JOHN QUINN: Right. So is it, is it, can, can you say whether or not the the alleged criminal conduct in the, in the complaint in Georgia directed to overturning the election is more specific, more detailed, more multifarious than in Washington, than in the Washington case?
I think
[00:47:36] STEVE MADISON: it's it's certainly a broader case in terms of the number of charges and the number of defendants principally. But I think you get the same picture from both of the cases or putting them together. You now get a fulsome view of what was happening sort of in the moment in DC and then behind the scenes with all of these machinations to try to create some basis to whip up the, the populace, you know, as what's happening in, in the
[00:48:05] JOHN QUINN: capitol.
Well, so, I mean, so any one of these could put Donald Trump behind bars for years and he's gotta run the table here. He's gotta win this four times. I mean, if I were him, I'd be losing some sleep.
[00:48:22] STEVE MADISON: It's interesting when the third charge came in the third indictment, I think he famously said, you know, one more indictment of my, my reelection is assured.
I mean, this guy really does double down. Yeah. Every time that you would think a rational person would engage in some introspection, and sure enough, you've seen the polls. Right? Right. I think he's still running at, you know, mid to high forties at least in terms of his support in, in the Republican party at least.
And you know, these, you look at the press conference for Atlanta. You have an urban woman of color, district attorney this is, this plays right into Trump's, you know, racist and dema. Dog whistling, you know, about what's wrong with our country. And so I am concerned that this will divide us even further, but I'm also not so sure that this isn't something that we have to stamp out in its entirety.
And that may not happen until he's in an orange. Well,
[00:49:24] JOHN QUINN: you can see, you can see how in the future the historians writing about the history of this, there'll be plenty of room to characterize this. You know, on the one hand, here's a guy who ran amuck with completely outta control. On the other hand, here's a guy who had so alienated the Democrats.
He was despised by the Democrats, and they wrecked their revenge the way they could, where they could. And in a sense, you could say both are true,
[00:49:55] STEVE MADISON: no question. So,
[00:49:57] JOHN QUINN: which, which, how does this play out in terms of the time sequence? You know, which one is likely in, in what way are they like in, or in what order are they likely to go to verdict?
So the
[00:50:09] ROBERT ZINK: federal indictments, the, the governments in the, well, the court in southern Florida has set a trial date for, for May of 2024. So that's kind of not in the middle, kinda at the tail end of primary season. Unclear whether that trial date's gonna stick. The Office of Special Counsel, department of Justice has asked for a trial date in the DC case in January of 2024.
So that would be right before the beginning of primary season. The, the president's legal team has asked for a trial date of 2026. So a couple quick notes on this. This is, this is one area that is a little bit curious to me because in most white collar cases that I've been a part of, and I, I have one that I was a prosecutor in in 2017.
That's still pending trial. If you can believe it, in the northern district of Georgia of all places. It's, it's pretty unusual in a major white collar case, certainly in the District of Columbia to get to trial from indictment in August to January. It's, it's in, in exceedingly rare. You would think that in a case of this magnitude with the, the national import of what's at stake in all of the discovery that, you know, getting it produced and logged and reviewed, it just seems to me would likely be impractical to get it done between August and January.
And so this
[00:51:31] JOHN QUINN: has been rushed, this is going much faster than criminal prosecutions usually go.
[00:51:36] ROBERT ZINK: I, I am a little bit puzzled at why why the department would be, I don't, pushy might be the wrong word, but why they have suggested a January, 2024 trial date given a, the complexity of a white collar case of this type and b I.
The criminal defendant at stake here. You, you wanna make sure everything is done perfect and above board to preserve a, a potential conviction you could get. Mm-hmm. So again, who knows what the judge will do. Trump's asked for 2026. Government's asked for January, 2024. We'll see.
[00:52:09] JOHN QUINN: Yeah. Well, I, I, I assume you can run for president, even be elected president if you're under indictment.
I mean, can you be elected president if you're a convicted felon?
[00:52:23] STEVE MADISON: You can. There's no impediment. There there is a provision in the 14th Amendment that post civil war you know initiative that provides that if you were part of an insurrection or rebellion, i e originally a Confederate soldier, but not limited to that on its terms.
And you know, Lawrence Tribe and, and John Luddy have written about this that. That disqualifies you from president. So there's definitely some risk for Trump in terms of the, i I would say the Washington case and the Georgia case.
[00:52:58] JOHN QUINN: Can he be convicted while he's president? You know? So in other words, if none of these, if the cases aren't all gone, he is not all acquitted by and he's elected, but one case goes to trial or more cases go to trial while he's a sitting president.
Can he be convicted while he's president?
You
[00:53:18] STEVE MADISON: wanna take that first,
[00:53:19] JOHN QUINN: Rob? Or, or we dunno, we dunno the answer. Well, no, I'm
[00:53:23] ROBERT ZINK: not answer. I'm answering because
[00:53:24] STEVE MADISON: I do not know the answer. I don't know either, but I'll take a crack at it. No, I would say, you know, the D O J has a, a, a policy in the, in the justice manual that sitting presidents will not be charged.
They will not charge sitting president. But you're asking a different question and I would imagine. There's no legal impediment, although there would be a, probably a forceful argument based on essentially executive privilege that that part of the executive privilege has to be, and we've seen this in cases before, where, you know, the, the full attention, time and intention of the president should be devoted to carrying out his official duties.
So you could imagine trying to defer the, the case. And of course, the other thing is if we're talking federal, can Trump pardon himself, that still has never been resolved. Right? So it'd be an easy enough to take one swipe of the pen and just pardon oneself. If he was elected president, you'd think that would be an endorsement of at least you know, 50% of the country.
That that would be okay. But, well, let's just a, a quick
[00:54:32] ROBERT ZINK: comical point. I mean, as, as, as you know better than I do, Steve, for an indicted defendant in the federal criminal process, they have to report to it. Pretrial services officer, and it would be pretty comical, even if the indictments were pushed.
President Trump as a sitting, if he was to be reelected as a sitting chief executive to have to report to pretrial services would be a, a pretty funny outcome. All
[00:54:55] JOHN QUINN: right, well look, I mean, so this, this all raises the question. You started to raise t Steve about what the policy is this, is this good for our country?
I mean, are we getting really going off track here? We talk about how divided we are and everything. Are we just throwing gasoline on the flames? Is the game worth the candle? Even if you're a Democrat and you despise Donald Trump? I keep thinking back. You know, I lived through, I was in college at the time of Watergate, and I remember Ford, I mean like Nixon had the country just up in arms.
And I remember Ford pardoning him and saying, we're gonna close this chapter. We're turning the page, we're moving ahead. I just wonder and, and in, in retrospect, I think that was clearly the right decision on Ford's part to, pardon Nixon. This is not the same situation obviously, but are we digging ourselves in deeper as a country by creating this I don't wanna say sides show 'cause that sort of prejudges the issue, but, okay.
So maybe he had some documents in the house in Maral ligo. Maybe he covered it up. Maybe he said some stupid things. Maybe he did some stupid things. But is it worth it given what it's doing to the country and you know, the public discourse and our, our political life? I mean, any thoughts on that?
[00:56:19] STEVE MADISON: Well, I think you have really put your, your finger on the question, and I, I, first, I fear it's too late.
I think we've reached the point of no return. Now with four pending criminal charges. And you can see signs of it already in terms of the Hunter Biden case, for example, being resurrected with the help of a judge who rejected a guilty plea. But and investigations now by the Republican majority in the house of democratic House members who participated in the various congressional investigations of Trump.
You, you really do have to wonder, are we going to become like these developing countries where the first thing the new administration does is throw the last one in jail or worse? And that would be a bad thing for the, for the Republic. You know, I yield to no one in my program for Trump. And you know, he is a, a cartoon and a charlatan.
But you know, having said that may be the opposite of. Love isn't hate, it's indifference. You know, I think could we, could we just, you know, sort of cast him out to the cosmic void? I think that might be the worst punishment of all, but it remains to be seen
[00:57:34] JOHN QUINN: what's been a fascinating and very informative discussion.
I thank you both. Anything else to add that people ought to know about these prosecutions? I think we kind of covered the waterfront covered a lot in just a little over an hour. So, Steve, Rob, thank you very much. Really appreciate this. This is John Quinn and this has been law Disruptive.