Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is a special episode of Stay Tuned in brief, I’m Preet Bharara. Donald Trump became the first ex-president in American history to face criminal charges on Thursday, March 30th. The Manhattan Grand jury reportedly indicted him for his role in a hush money scheme involving porn actress Stormy Daniels. The indictment, as of this moment remains under seal. I’m here with my CAFE Insider co-host Joyce Vance. Joyce, as you know, is the former US Attorney for the Northern District of Alabama. Hey, Joyce, how are you? Two times in one week.

Joyce Vance:

Well, I know Preet, we must be living the good life.

Preet Bharara:

So there is an indictment filed by the Manhattan DA’s office against Donald Trump. You and I were talking about that just a couple of days ago. We’ll be talking about that in a few days. I thought I would start, Joyce, by just saying something that I think is important. This is a sovereign moment, not just for New York or for the Manhattan DA’s office or for Donald Trump, but for the country and we will see how the case unfolds and there will be a lot of debate on television, on the editorial pages, most importantly in court about the merits of the charges, the propriety of the charges, whether they’re political, whether they’ve been weaponized and all of that.

But I think at this moment we should appreciate that we have a system of laws in this country, we say, but we’ll see if it bears out, that no one is above the law and no one should be gleeful. And I know there’s a tendency on the part of folks who think that Donald Trump has gotten away with so much for so long to be jubilant. First of all, when anyone gets charged, I don’t think that’s an occasion for jubilation. And second, we’re a long way off from seeing a conviction if that’s the thing that you’re hoping for, even though you haven’t seen the evidence yet. Do you agree with that, Joyce?

Joyce Vance:

I really do. I think we can celebrate that our system appears to be working, but it’s a somber kind of a celebration, right? I mean, the fact that we’re celebrating the notion that a former president committed conduct that merited an indictment is not a happy thing for any country, anybody to be in. I do understand the mood of people who see this as progress, and so I don’t want to minimize that. But from where I sit, Donald Trump is now like every other defendant. He is presumed innocent until he is proven guilty, he is entitled to due process. In fact, I think it will be a triumph for the rule of law if he is afforded the due process that we would hope every defendant would receive.

Preet Bharara:

Now, we should comment also as a cautionary tale to not necessarily believe reporting. And we’ve all fallen for this. This week and last week you and I, I think, were expecting imminent indictment. And then that seemed to have changed when the reporting suggested that they wouldn’t be considering an indictment and then the next week they would be considering a different case and then the following two weeks they were going to be on vacation. So the word on the street, whatever the street is, just a day ago, and by the way, we’re recording this in the noon hour on March 31st Friday, but as recently as a day ago, people thought this might be put off for a month.

So the reason I mention that is take everything you hear with a grain of salt unless it’s coming out of the mouth of the District Attorney or coming out of the mouth of a lawyer who has spoken to the District Attorney, as we found with Donald Trump’s lawyers acknowledging the filing of the indictment. So, you know, Alvin, at the end of the day, kept it quiet enough that an indictment happened and it wasn’t known in advance, which is a little bit of a surprise to me.

Joyce Vance:

You know, I think it’s an important moment also to note that we’ve got four days of dead space right now, and you know who loves a vacuum? That’s Donald Trump, right, so he will try to spin a narrative. He will try to talk about the indictment and claim that it’s not meritorious. He’s already trashing the judge. I would really encourage people to remember that Trump is very good at pushing out this sort of disinformation through a lot of sources and we should be on guard for it because Alvin Bragg will try his case in the courtroom. He’s not going to leak stuff. Anyone who’s telling you over the weekend, whether they think the indictment is strong or weak, those folks are speculating.

But Trump will try to use the next four days to set a narrative that favors him and you know, we’ve seen that happen before, right? The Mueller report comes out. Nobody has it. And Donald Trump’s advocate, Bill Barr takes to the national stage and tells us that Mueller has cleared Trump of any wrongdoing and that really becomes this leading national narrative that becomes very difficult to undo once we see the portions of the report that are unsealed and we realize, “Oh, well, only if exonerated means 10 charges of obstruction.” Be very cautious with what you hear over the next four days.

Preet Bharara:

So right away I’m going to mention some reporting about which we should be cautious. I had expected when we had word of an indictment that in fairly short order there would be a surrender processing on the part of the defendant, in this case Donald Trump, and you and I would do what we normally do and we would pore over the actual allegations and words of a filed indictment and we would parse it and we would analyze it and we would explain it to our listeners.

We don’t have that. What we do have is some vague reporting. In one instance, I saw that there’s an expectation the indictment has 20 something counts. I think there was another report that was more specific, which I don’t know if it makes it more or less credible that there are 34 counts. While preserving the caution that we don’t know if it’s four counts or 55 counts, we just have this reporting. If it is a few dozen, do you think that that’s probably going to be separate instances of false business records or do you think there’s something else potentially going on here? I don’t know. I defer to you on this.

Joyce Vance:

So keeping in mind that I am merely speculating here, if the estimate of 34 holds true, that would be a lot of false business records counts. I guess there were 10 or 11 checks that were sent to Michael Cohen, but that doesn’t get you to 34 so it seems likely to me that Alvin Bragg has some surprises up his sleeve for us and whether that involves additional defendants or charges that we haven’t all been thinking about, we’re going to have to wait to find out.

What I thought was really interesting in the first report that came out from the New York Times was they clearly said that Bragg had filed felony charges and that’s something that wasn’t at all clear to us going into it. We had talked with Barb and Ellie about that. I think all of us agreed that it would not be worth charging Trump with a misdemeanor, but assuming that the Times reporting is accurate, we now have indication that he has in fact charged a felony.

Preet Bharara:

And maybe 34 felonies.

Joyce Vance:

Maybe.

Preet Bharara:

We’ll have to see. Should we talk about what the process will be like? There has been reporting, again, I take some of this to be more credible than other stories. This sounds credible to me. That the DA’s office wanted to do the indictment yesterday, which they did and they secured it, and have the president, the former president close in time surrender and get processed, which would’ve been today, Friday, March 31st. The president’s people reportedly pushed back and said “The Secret Service needs more time to prepare.” And so we are now given to understand that the former president will be presented on the charge and be processed first on Tuesday, April 4th at 2:15 in the afternoon. In some ways it’ll be just like any other arraignment and booking of a private citizen, and in some ways it’ll be unlike anything we’ve ever seen in what is usually a garden variety court appearance, right?

Joyce Vance:

Yeah, you know, Trump is obviously unlike any other defendant to the extent that he’ll have a Secret Service agent who will accompany him, the head of his detail told is very likely to accompany him through the booking process, which could take a couple of hours. That agent’s job will be to protect him. That will be an armed agent who will accompany Trump and I think the Secret Service, their view is that they control, for instance, whether Trump is handcuffed, which they could view as a security risk to their protectee so I assume that they have a lot of issues that they will need to work out with the folks in Manhattan before all of this takes place.

Preet Bharara:

So on the issue of handcuffs, I think there’s no chance that they’ll put Donald Trump in handcuffs. There’s no reason for it. Not only is he not a flight risk if he shows up or a danger to the community in the traditional sense that we talk about it with respect to how people appear for the first time in court, he’s being allowed to surrender and he’ll be surrounded himself by law enforcement officers for his protection and the protection of others around him. But the other things, he’ll have to face, whether he finds them to be indignities or not, there’s no circumstance in which he will be able to avoid getting a mugshot or being fingerprinted or the other sort of normal processing practices that take place, right, other than the handcuff, he has to face everything else.

Joyce Vance:

I think he gets treated at that point like any other defendant, and I take what you’re saying on the handcuffs, I think that they’ll just have to follow what their usual practice is. I don’t know if it would be usual practice to handcuff someone arrested on these kind of charges. It would certainly be inflammatory, at least in Trump’s mind, if he were handcuffed. But you know, at that point, he’s just like any other guy.

Preet Bharara:

We’ll be talking about this, I’m sure, every week for months.

Joyce Vance:

It’s never going to end, is it? It’s going to just be like-

Preet Bharara:

Yeah, but is he any other guy? We don’t have to answer this question now and maybe one of the things we can do because we don’t have the indictment to dissect, is preview some of the things that will come to the fore and be issues for us. In some ways you want to be treated like everyone else. On the other hand, I think, you have to consider that sensitivity of this person for whom 70 million people voted for and how it looks if you appear to be heavy-handed in some way. And there are circumstances in which law enforcement officers and agencies do accommodate people for various reasons and I think probably in this case, given the fact that he’s being subjected to indictment, which is a new thing, that reasonable and respectful accommodations should be accorded to him so that no one can make the argument that someone is being overly heavy-handed or being overly punitive for some other reason.

Joyce Vance:

Yeah, I agree, and I think this begs some larger questions about how our criminal justice system works that maybe we’ll have the luxury of debating at a later point in time. But I agree now is not the time to give Trump any arguments that he can make.

Preet Bharara:

So the charges will be unsealed sometime between now and Tuesday. We’ll have a chance to look at them, debate them. The arraignment is a fairly simple process. It’s basically the presentation of the charges and the defendant pleads not guilty. There’s no chance that Donald Trump is going to show up and plead guilty, and then there will be some scheduling set either then or shortly thereafter. There will be almost certainly, not even almost certainly, there will certainly be filed on the part of Donald Trump motion to dismiss the indictment. We don’t know what those bases are because we don’t know what the charges are, but we can make some, I guess, educated guesses about them, the fact that it’s arguably a novel legal theory if it’s going to be the charges that we’ve been discussing in the last couple of weeks. Anything else?

Joyce Vance:

I heard that one of Trump’s lawyers, Jim Trusty, was on television this morning saying that the defense was going to be that Trump did not have an intent to defraud.

Preet Bharara:

We talked about that.

Joyce Vance:

Yeah, so that sounds like something that we should be on alert for.

Preet Bharara:

But the issue of whether or not he had the intent to defraud, isn’t that a defense at trial rather than a legal issue on which you can move to dismiss?

Joyce Vance:

Well, it seems to me that it is, which is why I was curious that that was what they led with. I think that we’ll see New York law is a little bit circumscribed, but he’ll presumably make arguments that he’s immune from prosecution and that sort of stuff. I wonder if the fact that they’re already focused on the defraud argument means that they just don’t think that their preliminary motions will get very far.

Preet Bharara:

They will also make a motion, as we’ve described before, these felony charges, if they’re what we anticipate, are kind of two-part charges. One is the falsification of business records, which is a misdemeanor on its own, but if done to further another crime or conceal some other crime, then it’s a felony. And if we have anticipated correctly, that other crime was a federal campaign violation, and if that’s the theory, they’ll make an argument to dismiss the case saying that you can’t have as the object of that felony a federal crime when you’re bringing the crime in state court. I don’t know if that’s going to go very far, but we can expect that to be one of their arguments as well, right?

Joyce Vance:

Yeah, I think that that’s right. And it seems to me that there’s some case law in New York that suggests that that could work. It’s equivocal and so I’m not sure that you would really want to sort of bet the company on an argument where there was a lack of legal clarity. I am honestly expecting to see the DA’s office have additional basis for morphing this misdemeanor charge into a felony and I think that there may be some surprises in store for us.

Preet Bharara:

There may be. By the way, the other thing that can happen, and I don’t know if it’s likely or not, but so people understand, you file an indictment in federal or state proceedings, that indictment doesn’t have to remain static. In other words, if new evidence comes to light or other people come forward or they shore up their legal arguments, you can file what’s known as a superseding indictment that can have more or fewer charges against Donald Trump so just because we might see a certain set of charges in the next four days, it doesn’t mean that’s the end of the story with respect to what the trial will be about.

Joyce Vance:

This is such an important point and sometimes in a multiple defendant indictment, particularly when one or more of the co-defendants, co-conspirators, decides to cooperate, changes can really be susceptible to changing and being superseded over time. And this could well be one of those situations.

Preet Bharara:

Can we talk about the overall timing? These are all things that we’re just going to preview. I don’t have as much familiarity with state court practice, but a trial date is not likely to be set on Tuesday. There’s a lot of other things that have to happen, exchange of discovery, et cetera. But we’re now talking about an arraignment on April 4th, 2023. The first primaries are occurring in the beginning part of 2024. Do you think there’s any circumstance in which we could have a trial before the primaries begin? And part two of the question is, how likely is it that we’ll have a trial for Donald Trump assuming that the motion to dismiss fails before the actual election in 2024?

Joyce Vance:

So as we have had to say a couple times recently, my crystal ball is out of commission on stuff like this. But in part because we know that Trump’s history involves his being very litigious and because some of these issues are interesting ones that we’ll have to go up to the highest court in New York for resolution, I suppose. He could even file a motion to remove the case into the federal system. He could try that sort of a route that really pushes this timeline out further than it would push the timeline out for any other defendant in this sort of a situation. And I think it’s very likely that we could see a trial during the primaries. I mean, it would be an incredible spectacle or even as you say, there’s this risk that we could get all the way to the moment of the election itself without having a resolution of these charges and maybe even any charges that are brought later.

Preet Bharara:

So we should clarify a couple of things so that people understand going forward. The president’s lawyers apparently have indicated that the former president will come and surrender, but what if he changes his mind and he says, “I’m staying in Florida.” Governor DeSantis, who’s likely to be Donald Trump’s rival in the 2024 primaries has basically said that he’s not going to extradite the former president in this weaponized political prosecution to New York. A, is there any chance of that? And B, how does that play out?

Joyce Vance:

Can I play the political cynic here just for a minute? This is a win-win for Ron DeSantis. By issuing that tweet, which really had a strongly anti-Semitic overtone. He keeps himself in good with Trump’s base to the extent that that’s a possibility for him, right? At least he doesn’t alienate them any further, which I’m sure is very important to him. But don’t you think he has to love the prospect that Trump might take him up on it and dig in at Mar-a-Lago, and then we’d have this specter of the United States marshals coming down to arrest him on a fugitive war, the marshals and the Secret Service? Trump would end up looking really bad in that sort of a situation and I think that DeSantis has to relish that so either way, he wins no matter how this plays out.

Preet Bharara:

Just by making the offer, he wins politically. Yeah, I think it wouldn’t serve Trump well, although, as I think we’ve discussed, Trump kind of wanted to be handcuffed so he can make money off it.

Joyce Vance:

Well, I think he does, right? Yeah, he’s looking forward to, I mean, he’s the only guy I know who would submit to a perp walk because he would have somebody video it for fundraising purposes.

Preet Bharara:

So the other thing that people will be asking about, and we’ve talked about it, but we should just make clear in connection with politics, because politics rears its ugly head here, that nothing about this indictment or an indictment out of Fulton County if it comes or a trial or even a conviction, although it will present logistical hurdles, nothing along those lines prevents Donald Trump from running for, and being elected, as President of the United States.

Joyce Vance:

100% correct. The Constitution sets the requirements for someone to be president, and they don’t say that convicted felons or people charged with felonies are prohibited from running for or taking office so there we have it.

Preet Bharara:

What do you think this means? And before we sign off, I want to ask you this question, Joyce, taking a step back, and then as soon as we have more detail about the indictment, we’ll analyze it, dissect it for you and be back. But the fact that this has been something that’s never been done before, didn’t even happen in Nixon’s time because he got pardoned. One of your colleagues on MSNBC I thought used a phrase that was interesting is that the filing of this indictment, the securing of this indictment against a former sitting president, has kind of broken the seal so it’s demystified this idea of charging a former president and it’s a little bit easier psychologically or for the public to accept, this is the argument, the next one and the one after that and the one after that. Do you have that same reaction or no?

Joyce Vance:

This is what we’ve always worried about, this notion that the slippery slope to becoming a banana republic is awfully easy to go down, and you have to weigh that prospect, which is a very serious one, that I think we should all be very concerned about against what happens when you let a president get away with criminal conduct, go unaccountable.

And we actually have a cautionary tale because I’ve also heard folks raise the point that had Richard Nixon been charged, we might not be where we are, right, we might not be going through this for the first time with Trump if another president who had engaged in some really pretty horrible criminal conduct, had he been held accountable in that moment rather than this concern that we have about not doing anything to a former president in order to preserve democracy. So I think we’ll be debating that, we’ll be talking about that. I’m not sure that there’s a clear-cut answer that we derive other than looking at it through historical lens, but I’ve got to say, I worry about what the future of the rule of law would’ve looked like in this country, had Trump been able to just walk away.

Preet Bharara:

Can we talk about one more thing before we go? I keep saying that, I keep thinking of things.

Joyce Vance:

You’ve said it like four times now.

Preet Bharara:

I keep thinking of things to talk about with you. Michael Cohen, the former president’s lawyer, the former president’s former lawyer and a central figure here, was on television yesterday as he is often. But I watched him after the indictment news came out and I observed two things. One, he’s positively gleeful at the indictment, and two, he’s really angry at all those people who dismissed him as not being credible. He name checks a number of people including Elie Honig, who by the way, our friend and colleague, generally goes out of his way to give some benefit of the doubt to Michael Cohen and tells us that he’s friends and friendly with Michael Cohen. How is it going to play out Michael Cohen’s public statements on a stage expressing glee and boastfulness about his own credibility when he actually becomes a witness at trial?

Joyce Vance:

It’s very difficult for me to understand how Michael Cohen continues to make public appearances. He was more restrained yesterday. I heard him at length on TV. We were on some of the same shows, and for the first time I heard him say, “I can’t talk with you about what the charges are. I can’t talk with you about specifics.” And I thought, well, that’s progress. But if he was my witness, I would prefer that he not be on television or in the public eye at all. It only makes it more difficult to obtain a conviction.

It only works in Donald Trump’s favor, and, of course, a lot of it has been made of the fact that, and Preet, you made this really great point last week, talking about the fact that the reason prosecutors in the Southern District of New York might not have wanted to pursue a case against Donald Trump was because they would’ve needed Michael Cohen. And Michael Cohen had not been forthcoming about all the criminal activity he was aware of, which meant they couldn’t use him as a cooperative based on SDNY policies. Well, here’s another problem. Cohen also has an explanation for why he’s not guilty of some of the charges he pled guilty to.

Preet Bharara:

That’s not great.

Joyce Vance:

And without discussing whether his argument is meritorious, I mean, he talks about being confronted with very little time and having to make a decision that involved charges being brought against his wife so yes, in that sense, it’s sympathetic. Nonetheless, do you really want to put this guy on the witness stand when he is the witness against the former President of the United States and have to hear him say that he was wrongfully prosecuted? It really makes me question whether he’s as important of a witness in this case as we’ve all been assuming he is.

Preet Bharara:

So, Joyce, lots of things to ponder, lots of things still unknown. I think we can say what we said at the outset, this is a very, very important momentous moment for the rule of law in this country. I don’t want to see people chanting, “Lock him up.” We should let the process unfold. I don’t expect we’ll be hearing from Alvin Bragg in any capacity other than through his work in the courtroom and through his prosecutor’s work in the courtroom. From time to time, he may have to issue a public statement, but don’t expect him to be gracing the airwaves, I don’t think, of MSN, NBC, CNN, et cetera. His work is going to play out going forward in court.

Joyce Vance:

I agree with that. The DA’s office will try their case in the courthouse, not on the courthouse steps. That means that we’re all going to have to be patient. We’re all going to have to have some trust that the process works. I know that that’s been a little bit in short supply over the last few months, but now we’re at the point in time where we need to let the system be the system. There will be nothing more powerful than a conviction that follows all the principles of the rule of law.

Preet Bharara:

I agree. I’ll talk to you soon, Joyce, I’m sure.

Joyce Vance:

See you next week, Preet.

Preet Bharara:

Joyce and I will continue to cover the Trump indictment on the CAFE Insider Podcast in the coming weeks, and we will have a lot more to say once the indictment is unsealed. Sign up to listen to cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag Ask Preet or you can call and leave me a message at 669-247-7338. That’s 669 24PREET, or you can send an email to letters@cafe.com. Stay tuned, as presented by Cafe and the Vox Media Podcast Network. The Executive Producer is Tamara Sepper. The Technical Director is David Tatasciore. The Senior Producer is Adam Waller. The Editorial Producers are Sam Ozer-Staton and Noa Azulai. The Audio Producer is Nat Wiener, and the CAFE Team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.