Hello, and welcome to the Votes and Verdict podcast, hosted by the Litigation and Policy team at Bloomberg Intelligence, the investment research platform of Bloomberg LP. This podcast series examines the intersection of business policy and law. I'm Elliott Stein, an analyst with Bloomberg Intelligence covering financials litigation, and.
My name is Nissan Dean, and I'm an analyst with Bloomberg Intelligence covering financials policy.
So our topic for today is the indictment of Donald Trump by the Manhattan District Attorney's officers. And we're delighted to be joined by Dan Horwitz, partner and chair of the Litigation Department and the white collar defense and investigation practice at the law firm of McLaughlin and Stern here in New York. Dan is one of the pre eminent white collar criminal defense lawyers in New York City, if not the and he represents clients in all forms of
white collar and regulatory enforcement matters. Prior to working as a defense attorney, Dan was an Assistant District Attorney in the Manhattan DIA's office, where he served in the fraud Bureau, investigating and prosecuting complex white collar crimes, including securities and tax fraud. Dan, it's an accomplished trial lawyer, having tied
many complex cases in both federal and state courts. And on a personal note, and in the interest of full disclosure, Dan and I were colleagues in a former life, working together not just at the same law firm, but in the same factist group and often on the same matters. So with all that, Dan Horwitz, welcome to the Votes in Verdicts podcast.
Thanks Shelliott, thanks for having me. Great to see you, Thanks Nathan, thank you for having me.
Yeah, it's great to have you here. So Dan, you know, I'm really excited to have you on today's show because you know, I really can't think of anyone better to give us legal analysis of the Trump indictment. You worked in the Manhattan DA's office as a prosecutor for about ten years, and then, as many prosecutors do, you moved to the defense side in private practice, and you also served on the transition team for the DA album Brag.
So you're obviously extremely qualified to analyze the indictment from both the prosecutor's perspectives but also the defense perspective. But before we jump into that analysis of the indictment, we usually like to start by asking our guests a little bit about their background. So maybe tell us a little bit about your legal career, about your time in the
DA's office. It was about your current practice, and maybe as part of all that, tell us a little bit about the importance of the Manhattan DA's office and where it fits in the prosecutors universe.
Sure, so let me work backwards and start with your last question about the significance of the Manhattan DA's office. And it does sort of play into why I.
Went there and.
How my legal career ended up being shaped. But the Manhattan Die's Office, for really close to one hundred years, you know, has been the pre eminent local prosecutor's office
in the country. And in part that's because it's in Manhattan, and it's also because basically you've had three or four very significant people who have held that office over the last hundred years who began really the practice of what we recognize today to be a modern white collar focus on criminal law, beginning with Thomas Dewey and then Frank Cogan and then Robert Morgentha who I worked for for
ten years. And the office is unique not just because in Manhattan there are you know, the full panoply of street crime cases often you know, grabbing headlines, but you
have Manhattan being the financial center of the world. And while that has over the last fifty or sixty years, you know, been in the public's mind the focus of federal prosecutors, the Manhattan DIA's Office was prosecuting white collar crime long before the US Attorney's Office, did you know, going back to the racquetbusters that Tom Dewey set up and Frank Cokin continued. So it's an important office in terms of framing white collar cases and developing theories and
techniques to investigate and prosecute white collar crime. So my own background in terms of how I got there, I was very interested in white collar crime and had spent eight or nine years after I graduated from college working on Capitol Hill and going to law school at night. And during the course of my time on Capitol Hill, there were a number of legislative and oversight matters that I worked on involving the oil industry and a variety
of tax related crimes. And that's how my interest in white color crime is really peaked, and I really wanted to work as a white collar prosecutor, and was fortunate enough to get an offer from Manhattan Die's Office, and actually chose to go there as opposed to the Department of Justice, because I wanted an opportunity to work for Bob Morgenthaw, who again is you know, you know, was probably the most preeminent local prosecutor in the country, if
not in history, and was fortunate enough to work, as Eliot you said, on a variety of white color cases, mainly in the area of securities fraud and also procurement related fraud, and then as a defense lawyer. As you said, you know, I, as Elliott knows, my wife and I had a child and we were living in Manhattan and the reality of continuing in a career of public service
was really not going to happen. So I went into the private sector and have spent the better part of my career working on white collar related cases for individuals and companies and have many cases and have had many cases with the Manhattan Day's Office, along with cases with the federal prosecutors and other prosecutors and regulators in the
metropolitan area. But you're right, I think I have a pretty good insight into what drives and motivates the Manhattan DA's office, not just under this current administration, but generally. So that's that's my story, and I'm sticking with it.
It's a good one, and it's a good segue to where I want to go next. You know, I want to let's let's talk about the indictment. And what I really want to do is have you first put on your hat as a prosecutor or in your case, as a former prosecutor, and tell us why you think this indictment is strong. You know, I think most of the public knows the indictment charge Sump with thirty four counts of falsifying business records in the first degree, which is
considered a selony in New York. And the charge is essentially accused some of disguising reimbursements to Michael Cohen, who was his lawyer and fixer, I guess, and you know, disguising those payments as legal fees to high pust money payments to Stormy Daniels. But you know, give us the inside baseball prosecutors take here. What makes the indictment strong in your view? And what will the DA have to do to establish guilt and how easy or hard will that.
Be, Yeah, Elliott, And it's a good question. The what makes this case strong is that it's got layers of multifaceted evidence that support the allegations. And by that, I mean you've got a series of witnesses and a series of documents that support the allegations.
And we're not just.
Talking about Michael Cohen, who will obviously figure centrally in the prosecution's case, but the case doesn't rest exclusively on Michael Cohen. You've got David Pecker, the the publisher of of the you know, the publisher was involved in the cotection kill scheme. You've got meetings, You've got witnesses that will corroborate things that Michael Cohen said. I mean you saw in the media this this line of witnesses that were called into the grand jury, Met Kelly and Conaway,
Hope Picks and others. And of course you have documents. You have you have a tape apparently, You've got documents. You've got Donald Trump's signature on checks. So you've got again, sort of a multifaceted array of evidence to support the allegations here. You know, the theory. I know, there's been a lot of talk in the media about is this
a viable theory? This theory that by making false entries in the Trump organization's books and records to cover up the hush money payments that were made to ultimately the
Stormy Daniels and to Karen McDougall. You know with this second element that this crime of falsifying business requires proof of which is an intent to commit another crime name So the issue is which he is Is that a strong theory because well, some people say that you know that the second crime was election fraud, and others say that, and the DA has said also that the second crime relates to to New York state tax crimes. Is that is that a problem because no case has ever really
been brought like that. And my answer to that is, you know, I'll circle back to what I said at the beginning. You know, federal prosecutors Morgan thought, the Manhattan Die's Office, the Southern District of New York. These are prosecutors that have that are known for thinking creatively and pushing the envelope on the boundaries of what constitutes white collar crime. I mean, and I like to point people
to an example that Elliott you'll appreciate. Given our shared work for Ike Sorkin, you know, as Ike like to say, for thirty years, the Securities and Exchange Commission handled insider trading under the civil components of the federal securities law, and then suddenly the Southern District decided one day that nope, insider trading can be prosecuted as a crime. So the fact that there is a case that arguably doesn't fit neatly into a prior set of facts, that doesn't tell
me that the theory is problematic. And so I think that the notion that you make an entry in a company's books to pay somebody off, you make that entry and you cover it up, you're obviously thinking about in a variety of things, including are you going to take a tax deduction for this expense? And given a special what I think David Bakar brings to this case, namely that there was an organized effort to protect the candidate Donald Trump from bad stories getting out as he was
running for president in twenty sixteen. You clearly introduced the element of New York campaign finance laws, of which there are several that fit within this particular indictment. And again, I mean, I'll just finish by saying, you know, there doesn't have to be proof of the second crime. There just has to be proof that the defendants were intending to commit that crime. Doesn't it's not a coeight crime,
it doesn't require proof. So this concept that ge the federal election laws preempt New York States laws, so you could never bring this case, I don't think that's really going to I'm sure that that's going to be an emotion to dismiss, but I don't think that that's going to I don't think that's going to give rise to a dismissal.
And I guess the fact that the second crime you don't have to actually prove, you just have to prove that there was an intent to commit it. I guess that maybe obviates any due process issues regarding that second crime. I don't it seems a little odd that you don't have you know, you can charge it as you know, relate that there's an intent to commit it, but you don't have to share that it was committed.
Yeah, I mean, I mean, I think a lot of people have focused on the campaign aspect of this in federal preemption. I mean, if you want to break it down and we can talk like lawyers that we are. The federal preemption statue exists in federal law, the New York state laws exist in New York's election laws, and there's zero in New York election law that says, oh,
by the way, this statue doesn't apply because there's federal preemption. So, and because you're also in talking about intent, you know, is the defense going to profer evidence that, wow, when we made these false entries to cover up the fact that we were paying off a porn star and a former playboy model, were we actually thinking, gee, guess what we can do it? Because no, there's no state client that could be committed here because right, there's federal preemption.
I don't think so. I mean, I don't think that. When David Picard testifies at trial and talks about, you know, the conspiratorial conversations that he had with Cohen and others including the President, about you know, we're going to do this catch and kill program to protect you, I guarantee the word federal preemption never came up.
And what about Michael Cohen, I mean, you know, he's obviously pleaded guilty to committing perjury and he's going to be you know, a principal witness, imagine for the for the DA's office. But you know, this is an issue that comes up right in every single case. So you have someone who's left, So how you know, how problematic do you think it is? And how do you think the D's office deals with him?
I mean, I think the DA's office is going to deal with it the way that any prosecutor does. And it goes to what I was saying before, corroboration, corroboration, corroboration. They're gonna they're gonna tell the jury in essence, yep, Michael Cohen is a liar and a cree and you wouldn't want him as your friend, and you wouldn't want him as your lawyer. But here are the reasons why
you can believe what he's telling you. And then they're going to point to David Pacar and Hope Hicks and Kelly and Conway and all the documents and they're going to say, you see, all this other evidence lines off with what Cohen's telling you. Now, there's no question that Cohen's got a lot of baggage. And Cohen is a cheat, and he didn't just lie to Congress, and he didn't just get you know, you didn't just plead guilty to purge.
He committed tax crimes himself. He committed financial crimes, and for a long time, you know, he was he was, you know, in Trump's inner circle, which also can ultimately work for the prosecution, because the prosecution will say to the jury in their summation, if you don't like Michael Cohen, don't blame us for that, because we didn't pick him to be our lawyer. The defendant, Donald Trump did. He
picked this guy. He used this guy, and he relied in this guy, and it was when it was convenient for him to throw him under the bus and say, yeah, I used him for ten years. But guess what, I'm shocked. He's a liar and a cheat. Don't blame us for that, because it's the defendant who chose the people to surround himself with.
So I have a question about you know, President Trump. You know, he's always indicated, at least he's insinuated that the Trump team is going to ask for a change of venues since he doesn't think he can get a fair trial in Manhattan. Does he any chances of moving this case beyond Manhattan?
I don't think so I think that's a debt on arrival. I mean, I think, I mean, it goes without saying that he's a widely known public figure and is a polarizing figure. And you know, this this concept that Gee will just pick Staten Island, which is a you know, a borough that Lean's Republican, will just pick Staten Island as a venue. That's not the way it works. I mean, and I think that you know, I think New Yorkers
can be fair and impartial. I mean, I think, you know, having seen jurors, and I think this is the way the Court is going to look at this. If jurors can honestly say, can they be fair and impartial? Yes, Donald Trump is a polarizing figure. But if you pick a large enough jerry pool, and you solicit enough potential jurors and conduct a thorough vetting on those jurors, I'm pretty sure that you'll be able to find, you know,
twelve people who can be fair and partial. And I think the Court's going to look at it.
So, you know, one of the questions I wanted to ask was more of a Washington question, because you know, I'm just trying to think of how this case plays out. So you know, in particular, the twenty twenty four presidential campaign has already started. But you know, we have in January of twenty twenty four primaries in Iowa and New Hampshire on the Republican side. At what stage do you think this case is going to be at that point?
So you know, are we going to see something where Trump is competing on a primary on Tuesday and then appearing in court on Thursday, or you know, could this is it not so much an issue?
I think that's probably what he'd like to do. But I think that when primary season starts, you'll have had all of the motion practice about, for example, a change of venue or motions to dismiss the indictment. Those all all have been resolved, and you'll be scheduling a trial. And that's what Judge Mershon has signaled with the current schedule. So, Nathan, it's entirely possible that this trial schedule will impinge on whatever it is that candidate Trump needs to do in twenty twenty four.
And how long do you think a trial like this would last?
Probably a month. I mean you're going to pick a jury, so in a case like this, that could take two weeks in and of itself, you know, assuming they have you know, ten to twenty witnesses, that's probably another two weeks. So it could be a four to six week trial. I mean, actually, let me just refocus that sort of re refine that you're probably it's probably going to take as long as the Allan the Trump organization trial, so
that I think took about six weeks. So I think that's about what you'd see here.
So many different trials to keep back of so so so the judge in the in the criminal case is Justice Mershon, and I think it's interesting that he came out of the Manhattan DA's office as well. And I think Jack Smith, who was a special prosecutor looking at the January sixth issues and the classified document issues, I think ausor came out of the Manhattan DA's office, and you know, all that speaks, as you did, to the
importance of that office. I'm wondering if you anticipate one of the motions to dismiss being a you know, motion to accused Justice Mersan because he came out of that office.
I don't think it's I think you're you're right, Elliott, that they're gonna attack, but not in a a Donald Trumpian way, but more in a legal way. The selection enough Judge Marshon as the as the judge, but I don't think it's going to focus on the fact that he was in alum of the office. I think it's going to focus on the fact that how is it that of all the judges in New York County sitting in the criminal court, how is it that Juan Marshan
ended up with this case? And there's going to be a challenge to the selection process, which which will fail. And it will fail because having had having had a case where I actually litigated this where there was a challenge to a grand jury judge when I was a prosecutor the appellate court in the New York Region, the First Apartment ruled that the judges that run the court system have wide latitude in selecting judges, and so I
think that's going to fail. But you're right. They they will attack Juan Marcheon and they're going to My prediction is that they're going to do everything they can to try to bait them and pick fights with him and to draw him out in a way that will assist them in challenging his selection and maybe going to you know, your question about the change of venue. Not only can he not get a fair shape with the Jerry Pool, but he can't get a fair judge.
And we're Marassan and Jack Smith and the DA's office at the same time as you did. You overlap with him.
I overlap with both of them, and I don't I think they were there. I think they were there at the same time. I know them in passing. I mean I knew them in passing. I was, I think, pretty senior to them when they were in the office. But I think you know, look, the press reports on them are pretty accurate. They're people who are They're disciplined, they call balls and strikes. They're serious people. They're serious lawyers.
They really embody the kind of spirit and training that the Manhattan DA's Office, especially under Bob MORGANFA represents.
The mean.
They're people who will all the facts and the law without fear or favor.
So, you know, talking about the other potential indictments out there, we saw press reports from Georgia stating that the decision there would be made sometime this summer. My question is, you know, how would that play out if President Trump is facing two or even three different indictments, which takes priority. How to the advance at the same time? How can we you know, how will it play.
Out, assuming that there are other indictments. I'm not sure that all the judges are going to get on the phone and say, hey, let's work out a schedule. But the but, Nathan, the idea that a defendant is facing charges in more than one jurisdiction is not unique. Look at Harvey Weinstein. He was prosecuted, he was indicted first in New York, and then he was indicted in Los Angeles, and the prosecution proceeded in New York first because it
was started first and it was further along. So I'm going to assume that that schedule, that sort of scheduling structure will dictate which case goes first. You know, who knows if he gets indicted in federal court in Washington, DC. You know, is it likely that there be a trial of that those charges, whatever they might be, before the
Manhattan DA's case goes to trial. I don't see that because you're in May now and you're on a schedule that would probably lead to a trial in the In the New York County case, in some time in the probably the first half of the first quarter of twenty twenty four. And I think that, you know, it would be unrealistic for either of the other jurisdictions that are potentially in play to have trials be conducted before that.
It's good to know. And then one other question that I had, and I know a lot of folks probably are asking the same question when the you see the news reports that you know, if President Trump is convicted, can he be president?
You know?
Or is you know, is there anything in our constitution that bars him from running or being elected?
You know?
Or and in just in theory, could he be in president or sorry, in prison but also be president.
Yeah, I don't know about the last question. I don't know how the Secret Service would work app that that the details for security there, But no, I mean, my understanding the law is that there is nothing to prevent someone from running or holding office having been convicted of a crime or a felony or a misdemeaning for that.
So along those lines, if he becomes president, can he pardon himself if he's convicted?
I don't know. That's the good question. But you know, being an observer, like everybody, else, of Donald Trump, I'm quite confident that he would feel that the authority is to do it, and how does that get challenged? So I guess stay tuned for an answer to that question, is the best I can tell you.
Yeah, that would be fascinating, and I got to think it. I mean, it probably would be much tougher to pardon him self for a state conviction than a federal one. But I mean, obviously these are all issues. The first impressive, exactly, all right. So with that, we're going to move on to our grab bag questions, which we like to do with all of our guests just to get a little
more sense of who they are. So the first one for you, Dan is what is the most interesting or rewarding case you've ever worked on.
The most interesting and rewarding case I worked on was the case Elliott You and I were colleagues. I represented ultimately two people in New York who had been wrongly convicted at a murder at a murder at a very
famous New York night club called the Palladium case. And they David Limis and Omado Adago, convicted by the Manhattan you know, BIDA, Manhattan DIA's office and ended up serving thirteen or fourteen years in prison, and I worked with a group of lawyers to first overturn their convictions, and then the prosecutors decided not to reprosecute Omado, but they did want to reprosecute David Limis, and so I represented David at trial, and we actually called the actual murderers
at trial who confessed on the stand, and the jury acquitted David. And that was a very meaningful, interesting but also meaningful case because you know, you had two people who not only were wrongly convicted, but served many, many years in prison for crimes they didn't commit. So that was that I can't imagine that they'll ever be a more meaningful case.
That I'll work on in that. You know, when I was thinking about that question, I was wondering if that was the case that you were going to talk about it, and I'm glad you did. I happened to work on that with you a little bit. And one of you know, one of the most memorable moments from my time practicing law was when Leaness was released from prison for the first time after serving I think you said, you know,
about fifteen years. Yeah, And I was there with you and I. One thing that stands out to me was someone gave him a cell phone to call, you know, family members, and you know, I don't think he had seen a cell phone before. It was really just an incredible moment.
Right, That's right, I mean, that's you just don't I can represent all the white collar defendants and companies in the world' as I said, as you're basically saying, I mean, how do you surpass what you just described to can't?
All right? So the next question with which is you know a little lighter if you were But we asked this of all guests, if you were stranded on a desert island, what are three pieces of music you would take? And you know, when I worked together, we traveled internationally on cases. But I don't know what kind of music you like. So I'm curious to hear this answer.
Yeah, this is this is especially for me, an impossible question to answer because I have a really diverse and wide ranging interest in music. But I would boil it down to three albums, and I can't really boil it down to three albums. But if I had to choose, I would choose A Love Supreme by John Coltrane Exile on Main Street by the Rolling Stones and the soundtrack to the movie The Last Waltz by the Band that had you know, I don't know, twenty five or thirty
guests play. So that's that's a tough That is a tough, tough question. There's just a tremendous amount of music that I'm leaving out.
Those are good ones. Those are good ones. And I play The Last Waltz on TV the documentary movie every Thanksgiving.
Yeah, I mean, I mean the reason I was thinking about this was it just encompasses It's not just that it's the band, but it also encompasses the guests. So you've got Muddy Waters, You've got you've got Dylan Clapton, You've got a lot of people that I would have, and a lot of genres of music, which is what Robbie robertson the band we're trying to do with that album. I think they they incorporated a lot of different genres
of music in that concert. And that's why if I was stuck on an island, the Last Waltz offers me not just the band, but Ringo Star played on Ronnie Wood. You've got a whole set with Dylan and You've also got, you know, two songs with Muddy Waters and Paul Butterfield. So you bring in some, you know, seriously legitimate blues musicians.
That's great stuff. That's that's a good logical approach to answering that question. I like it all right, Dan. I think with that we're gonna have to wrap up this episode of Some Verdicts. But we're extremely grateful to Dan Horwitz for appearing on this episode. I think it was really informative, a great discussion about what I think is really a unique moment in American legal and political history. And we thank you the listener for taking the time
to join us as well. Just as a quick reminder, you can read all of our Bloomberg intelligence research on the Bloomberg terminal at Big Thank you again, and have a great dang