Published March 15, 2021

Elie Honig:

Hi everyone. Every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases and what it means to lead a life in the law. Those Friday conversations will be part of the CAFE Insider membership. The Monday and Wednesday episodes will continue to be available for free in this feed. CAFE Insiders enjoy access to exclusive content, including the CAFE Insider podcast co-hosted by Preet Bharara and Anne Milgram. Audio essays from CAFE’s slate of contributors, including me. Bonus content from Stay Tuned and Doing Justice, live events and more. You can try out the membership free for two weeks. And for a limited time, get 50% off the usual price for an annual membership. Just head to cafe.com/insider. That’s cafe.com/insider and use the code justice. And now onto the show. From CAFE, this is Third Degree. I’m Elie Honig.

The is not the first time it has felt like the walls were closing in on Donald Trump. We’ve seen it before and every time either Donald Trump has pulled an escape act or those closing in on him has pulled up short. Now let’s think back. Remember, there was a point in mid to late 2018 where it absolutely looked like Robert Mueller was going to take down Donald Trump. Mueller had convicted key associates all around Trump. Several of them had flipped and Trump was all but openly committing obstruction of justice. Alas, Mueller pulled his punches in his report. He gave us this mush mouth doublespeak instead of a legal conclusion. Bill Barr stepped into the void, lied to the American public and Donald Trump essentially skated.

Then we had two impeachments, still hard to believe, two impeachments. One on Ukraine, one on the Capitol insurrection. Both times the record was quite clear Donald Trump had abused his power and perhaps much worse. And both times the raw partisan math of the Senate kept him from getting convicted by the necessary two thirds vote. Turns out if you have 34 party loyalists, you can do just about anything. But now, now I have to say things really do feel a bit different because now Donald Trump doesn’t have anywhere to hide. He has no attorney general who can step in and act as a personal fixer. He can’t rely on 34 Republican senators bailing him out and he can’t hide behind whatever immunity or at least temporary immunity he might’ve had once as sitting president. And so now Donald Trump is fighting a two front battle, which soon may become a three front battle. And those front lines seem to be advancing on him.

First of all, the Manhattan District Attorney’s office. Now we’ve talked before about the indicators there that the DA is ramping up its investigation. They’ve hired this private forensic accounting firm. They’ve hired this former SDNY prosecutor. They have Trump’s tax returns. But there’s two really important new things that have come out. First of all, Michael Cohen, yes, the Michael Cohen. They have interviewed him seven times. Now, how many is that for a prosecutor? You may be asking. It’s a lot. It’s a lot. I’ve interviewed some witnesses more than seven times, maybe 15, 20 times. But I’m talking about mobsters who spent decades, entire careers to unpack. And I’ll tell you this, for sure.

There is no way on earth prosecutors have interviewed Michael Cohen seven times for no reason. What it tells me is this, the prosecutors believe Michael Cohen. Not because he’s pure. He’s certainly not that. But because he’s backed up potentially by other witnesses, by the financial documents, those tax returns, and it tells me they intend to use Michael Cohen as a witness. You just don’t spend that time. You don’t bring somebody back that many times, if you’ve decided that they’re useless. Also, by the way, keep an eye on Allen Weisselberg. He was the financial gatekeeper for the Trump organization. There’s reports the Manhattan DA is amping up pressure on him. He could be key because this’ll be a financial case. If you can flip the financial gatekeeper, the whole case gets blown wide open.

The second big development is that Cy Vance, the current and long time district attorney is leaving. He won’t seek reelection for that seat that’s up again in 2021. Now we all knew this was coming. It was no big mystery, but now it’s official. And the biggest takeaway is that in my mind, it makes it much easier for Cy Vance to make the call before he leaves. Thumbs up or thumbs down, indictment or no indictment. Because no matter what Cy Vance does, here’s the reality, whether he chooses to indict or not to indict tens of millions of people will be furious and will claim that politics were at play.

So if your Cy Vance right now, why not make that decision on your way out while you’re a laying duck. Take the flack, there’s going to be flack. And it makes it tougher by the way for people to say, “Well, he’s playing politics” if he does charge. Because if he did charge, people would say, “Well, he’s just trying to promote his own electoral interests”. That’s off the table now. So by making the decision before he leaves, Cy Vance will insulate and protect his successor as DA and really the office itself.

Second. The Fulton County DA down in Georgia. Now we’ve talked about this one before. This is the investigation by the new DA Fani Willis. She’s now convened a criminal grand jury, so this is real now. Though, it almost seems as if the DA and the grand jury really don’t have to do anything at all other than just sit back and watch as more and more evidence of Donald Trump, in his own words, floods into public view. We’ve already heard the tape of Donald Trump calling the Secretary of State Brad Raffensperger to find 11,780 votes so that he can win the state by one.

And now there’s more. Now there’s another tape. This time Donald Trump called… This is crazy, an investigator. Not an elected official, not a politician, an investigator. A woman named Francis Watson and Donald Trump asked her to find the right answer.

Donald Trump:

Hopefully, when the right answer comes out, you’d be praised. I don’t know why they’ve made it so hard. They won’t be praised. People will say, “Great”. But whatever you can do Francis is a great thing. It’s an important thing for the country. So important. You have no idea, so important.

Elie Honig:

He asked her to specifically on Fulton County, which is heavily democratic. And he promised her that if she finds that right answer, “You’ll be praised”. This is just crazy. And it’s so interesting listening to this call. Trump is begging and pleading and threatening and promising. And Francis Watson, this investigator, is just very politely but firmly saying, essentially, “I understand. We’re going to do our job”. And let me say, good for her. I don’t know Francis Watson, I don’t know anything about her. I don’t know what she looks like. I don’t know her politics, if any. But Francis Watson, thank you for doing your job for not going along with this craziness.

So we will call this new phone call exhibit B for the district attorney. If you’re thinking about this case, you hit play on the Raffensperger tape, that’s exhibit A and then this one is exhibit B. The fundamental question here is, is Donald Trump just asking for a full and fair recount and however the chips may fall, they fall? Or is he trying to get the election thrown to him? It’s getting to the point here where no person with a modicum of common sense can even begin to believe or argue Donald Trump wasn’t trying to steal this election. He essentially says it on tape now twice.

And then third, the US Department of Justice. We finally have a new attorney general. Merrick Garland was confirmed by the Senate last week on March 10th. By the way, there was needless delay here just for comparison. Jeff Sessions was confirmed on February 8th and Eric Holder was confirmed on February 2nd. Merrick Garland got confirmed on March 10th. That is five wasted weeks of time that Merrick Garland could be doing very important work. That’s the Senate’s fault of course. And now Merrick Garland has to figure out what to do with all these cases potentially touching on Donald Trump. By the way, let’s not forget about obstruction of Robert Mueller. It’s strange how it’s now just forgotten. It’s still within statute of limitations. But the thinking seems to be, well it’s gone from the front pages, so no one’s going to look at it. Why not? Merrick Garland has to take a look at this and decide, is there a crime there?

He’s also got to look at Ukraine. He’s got to look at election tampering and he’s got to look at Trump’s involvement in the Capitol insurrection on January 6th, whether Trump incited or aided and abetted those actions. So Merrick Garland has very big decisions to make and a lot of work to do. He can finally get started now. And last I want to say this. Overarching all of these things, the landscape has really changed now with Donald Trump out of office. Legally, all those protections that he enjoyed against being indicted by DOJ, ways to drag out cases and subpoenas in court. They’re all gone now that he’s no longer president. But also just atmospherically in terms of the power dynamic and how imposing and intimidating this notion of potentially indicting Donald Trump is. Now suddenly he seems diminished. He’s off Twitter. He’s making these bizarre public statements that are fairly pathetic.

So look, I’m under no illusion. Donald Trump is still an enormously powerful person. He has a massive following and yes, an indictment of him will be enormously controversial and will elicit accusations of all sorts of bad political intentions. But that aura of invincibility is starting to fall away. Now he’s mostly a Mar-a-Lago recluse spouting off little notice temper tantrums now and then. So all three of these cases are plowing ahead and seem to be making legitimate progress. Will anyone get there and pull the trigger on an indictment? My answer now is that it’s a lot more likely than it seemed a few months ago.

Thanks for listening to this episode of Third Degree. We’ll continue to stay on top of these cases and please keep on sending us your thoughts, comments, questions at letters@cafe.com. Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.