Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara. Last week, Donald Trump became the first president in American history to be indicted on criminal charges. Trump appeared in court for his arraignment earlier this week, and now the charges have been unsealed. To discuss the strength of the Manhattan DA’s case against Trump and what comes next, I’m joined by my CAFE Insider cohost, Joyce Vance, who served as the U.S. Attorney for the Northern District of Alabama. Also joining us is Ben Wittes, who is the editor-in-chief of Lawfare and a senior fellow at the Brookings Institution. Ben, Joyce, welcome to another special episode of Stay Tuned. How are you?

Joyce Vance:

Good morning.

Ben Wittes:

I’m good. It was a late night and an early morning, but fired up and ready to go.

Preet Bharara:

So I should timestamp this for folks. We’re recording this in the 9:00 AM hour Eastern Time on Wednesday, April 5th. Obviously, we are gathered here today because the indictment against Donald Trump was unsealed. I want to get folks’ reactions to it. There have been reactions pouring in since it was unsealed yesterday, along with the statement of facts. It’s a little bit more robust or I guess a lot more robust than the very bare-bones indictment itself.

People who reported that there would be 34 counts were correct. People who reported that there would likely be a conspiracy count were incorrect. People who thought there were going to be charges outside of falsification of books and records were incorrect. Alvin Bragg gave a… I wouldn’t call it lengthy, but I wouldn’t call it truncated, but a relatively modest press conference, answered some questions. Ben, we haven’t had you on in a while.

Ben Wittes:

And I’ve been hurt by that.

Preet Bharara:

When I texted you last night and asked you your reaction, and then we’ll get into the details, you said, “I don’t hate it.” And in response, you asked me what I thought, and I said, “I didn’t love it.” What did you mean when you said you didn’t hate it, and what were your expectations?

Ben Wittes:

So I don’t know what my expectations were. I feared that it would be very weak, partly because of the barrage of people confidently announcing that it would be very weak, despite assiduously trying to avoid pre-indictment commentary on indictments. You end up getting influenced by that stuff anyway, but partly also because of the weird procedural history of the case. I feared that it had been mothballed for a bunch of years and then suddenly comes to life, so I did fear that it would be quite unimpressive.

On the other hand, knowing that Alvin Bragg and Cyrus Vance had successfully prosecuted the Trump Organization and Allen Weisselberg, I also thought there was an outside chance that it would be much more impressive than expectations and would fold in a bunch of the allegations involving the Trump Organization, which he has already proved in a different context. And, of course, it turns out it’s neither of those. It’s more or less exactly the indictment we expected or that had been anticipated by the more responsible journalists, but yet it has some, I think, novel factual features that make it a bit more impressive than I expected in that regard.

So, for example, Bragg seems to have some sort of nontrivial evidence that this was done specifically for electoral purposes, specifically material he cites in the statement of facts that there was an explicit discussion that once you get past the election, you actually don’t have to pay because it doesn’t matter if it comes out at that point. So I think there are some features that I nodded at and thought, “Huh, that’s better than I expected.” On the other hand, it’s not a particular barn burner of an indictment, and the people who have criticized him for jumping the line in the importance of these cases, this will not shut them up.

And then on the third hand, I actually think Bragg did a fairly impressive job in his press conference yesterday of making the case that this was not unrelated to the democracy concerns that are kind of at the forefront of a lot of our minds and that this was, among other things, an election interference effort. And so, I guess I ended up thinking, “Do I wish some other case had come first?” Yes. “Do I think this is the most important case that’s likely to be brought or should be brought against Donald Trump?” Certainly not.

But I didn’t hate it in the sense that I read the documents and said, “Gee, this is a plausible set of criminal allegations involving a dirty scheme to do something very inappropriate in the context of an election for the presidency of the United States.” And so, I guess that’s what I meant by didn’t hate it. I’d be curious whether you agree with that, and if so, what you meant by didn’t love it.

Preet Bharara:

I’m going to come back to that in a moment, but something you said just now causes me to want to ask Joyce. Ben said a second ago, the indictment presents a plausible set of charges. Is that the right standard when you’re bringing the first-ever case against a former President of the United States?

Joyce Vance:

So I think, obviously, you need more, but I think that this indictment does offer more than just a plausible set of charges. And Ben, it’s very interesting. What I had expected here, and you talked about this a little bit, was the indictment that we got. I also expected that it would be wrapped in this notion that it’s the origin story of Trump’s efforts to manipulate elections. I think that that elevates this case a little bit. And although it doesn’t hit you over the head when you read the bare-bones indictment, I think the more that we socialize what’s in the statement of facts and what the case is about, I think it takes on a little bit more of a patina of importance because of that context.

In terms of are the charges plausible or are they charges that have proof beyond a reasonable doubt to back them up, always hard to tell at this point. If Bragg can prove everything that he offers in the statement of facts, then he would obviously have proof beyond a reasonable doubt of the charges. And what that leads us to is sort of the legal nitty-gritty conversation about whether the charges themselves hold water, which I think is the point of your question, Preet. As we’ve talked about, I think maybe beaten to death, this charge, this business records charge that Bragg is now exclusively focused on is a misdemeanor, and it becomes a felony if the false business records are created to aid the commission of or conceal an additional crime.

We get this, I think, mostly from Bragg’s press conference, to be honest, was where I understood that he was giving us three options, two election-related options, one state, one federal, and then a tax charge option for that, an additional crime. And those theories are plausible. It will depend on how they are spooled out. There will be some early legal challenges. Right? There will be people who will say that Bragg lacks the authority to invoke the federal crime. The judge will have to make a decision about that. There will be people who will claim that the state crime does not apply to a federal election. The judge will have to sort that out.

I think Bragg’s gambit here is that some law has to apply to a president who’s running for election or a candidate who’s running for election in the State of New York. So you can’t say that neither the federal nor the state law applies, and his gambit is that one of those will survive for a future jury to decide on. That might make the tax charge the Goldilocks charge here, the one that’s the most straight line forward. But plausible? Yes. Better than plausible? Yes. I’m sort of impressed by the prosecutorial tradecraft that goes into this.

Preet Bharara:

So I’m trying to parse my reaction and why I had the mildly underwhelming reaction that I had, and part of it is not so rigorous. Part of it is, when I’ve read indictments in the past, and technically this is not a speaking indictment, it’s a bare-bones indictment, but there’s a statement of facts that goes on for 12 or 13 pages that tells a story or, I guess, multiple stories. And when I’ve read indictments in the past of this nature that are significant and the whole world is watching and where if you believe the premise, if you go at the king, you best not miss, I did not feel when I finished reading the indictment.

And the statement of facts? Wow, this is a 100% winner. And bear in mind, obviously, that the indictment is the story that the prosecutors tell. That’s the story that gets told and that you read before there are holes punctured in the story, before the judge may rule on dismissing some or many counts, before the defenses are brought to bear. And so, it’s basically the opening statement of the government, and it just has not read as strong as others.

And I remember, and people are going to get annoyed when I say this, even when you have a very strong indictment, an indictment that tells a very strong story, that doesn’t at all mean that it’s a winnable case or you’re going to get a conviction. And I remember reading some years ago the indictment brought against Senator Robert Menendez. That was pretty salacious, and I remember thinking, “Wow, there seems to be a lot of proof here.” And, of course, no conviction was obtained against Bob Menendez in that case. So that’s point one.

Point two on the legal side, and Joyce has alluded to this a little bit, I was hoping for a little more clarity, and there are legal strategic reasons, I suppose, that my wish here was not granted, and that is absolute clarity as to which of the falsification of business records counts is elevated into a felony, based on which specific crime, federal, state, tax, or campaign, so I can follow along and sort of understand what the level of proof is.

And overall, I did not have the sense, and this is going to be important, not necessarily legally, but with respect to how people view the case. Why is it that it took so long to bring it? And why is it that the Southern District of New York, who prosecuted Michael Cohen, not proceed and the DA’s Office for Manhattan many years later did proceed? And maybe I missed it, but I didn’t really get a fully satisfactory answer to that question. It’s not part of the trial, but that’s sort of my initial reaction. Anybody have a reaction to my reaction?

Ben Wittes:

Yeah. So I would say I agree with all of that. And as I say, it’s not the case that I would have liked to start with, nor do I think it’s a case that, in the world of prosecutorial discretion, is a no-brainer to bring. But I do think that the conservative reaction to it, which is that it’s trivial or it’s obviously not a crime, as though New York real estate magnates frequently engage in hush money schemes to protect their presidential campaigns, that this is the sort of thing that happens routinely, a kind of NDA, confidentiality agreement.

I think they’re in for a bit of a surprise as this thing gets litigated and it is not obvious that it should be thrown out. The briefing schedule that was set that Joyce alluded to actually gives four months before we’re going to see a litigation over a motion to dismiss. And in the meantime, there’s going to be discovery, there’s going to be whatever motions come up in the meantime, and there’s going to be, I think, other indictments. And so, while I don’t think this is a no-brainer case to bring, I do think there is a fairly solid basis for it. I do think the document is, for the most part, self-justifying, and I also think it is not out of the range of the sort of thing that that office seeks accountability for in other contexts.

And so, I ended up being more sympathetic to Bragg’s position, at least based on the one-sided presentation that that document represents than I expected to. I will say, the one area that I was concerned about is this step-up issue where he was candid in his press conference that he didn’t show his hand here because he doesn’t have to, and he is going to have to in the context of the motion to dismiss, which will come by early August. And so, I do think at that point, he’s going to have to lay out what evidence he is prepared to show that Trump was doing these things intending to commit another crime.

Preet Bharara:

Yup. It’s a little weird, though, isn’t it, Ben and Joyce, that in a case like this, where there has been a lot of years to bring the case, so many years in fact, that there’s going to be litigation over the statute of limitations, which I think the DA will win, but it’s going to be litigated. And the whole world is watching, and the public wants to understand the justification for these charges, and I think they are justified, that even at this late date with an indictment and a statement of facts, that there was this thought that he shouldn’t show his hand. He doesn’t have to legally, but I think it’s not just legal standards that apply to this case. Joyce, do you have a view on that?

Joyce Vance:

Let me play devil’s advocate here, because like everybody else, I would’ve liked to have seen more. Look, I would’ve liked to have seen page numbers in the indictment.

Preet Bharara:

Yes. Can we pause on that for a second? As the team knows-

Ben Wittes:

You got paragraph numbers. I don’t know what you’re talking about.

Preet Bharara:

… I am very, very, very-

Joyce Vance:

I’m sorry that’s not enough.

Preet Bharara:

… anal about page numbers. And if something doesn’t come out with page numbers, it has to be redone. And yes, so that was my first shriek about the page numbers. I’m sorry, I interrupted.

Joyce Vance:

And now I’ve completely lost my train of thought because it’s too early in the morning and I’ve laughed too hard about that, but let me play devil’s advocate here and say this. So Bragg explains that he’s not required by New York law to line the charges up in the way that we would’ve all found more satisfying here. Not only is he not required to do that, it is not his office’s practice to do that.

And so, I can imagine an alternate universe where Trump’s lawyers, instead of holding their little… I don’t know what it was, a pull-off-the-roadside press conference or whatever they did, where they complained about, “Boilerplate,” and “Nothing unusual here.” Well, I can imagine if Bragg had very carefully detailed this information in his pleadings, that they would’ve said, “This is an outrage. This is an effort to dirty up the former president. They’re providing all of this information that they don’t normally provide in these cases, and all of this stuff should be stricken from the indictment.”

You’re damned if you do and damned if you don’t here. Consistency is a prosecutorial virtue. And if you are an appellate lawyer helping to manage these proceedings, and we know that Bragg has some great folks on his team, then I think what you’re saying is, “When in doubt, do things the way you normally do. Engage and treat this case like you would treat other cases. If you don’t line the charges up in the…” I think it’s 30 other cases or maybe 29 other cases under this statute that Bragg has brought in his year in office, “then don’t do it here.” I think that may be what’s going on, and it may not be satisfying to us, but it may be helpful on appeal, assuming we get to that point.

Ben Wittes:

Preet, I want to push you on a question.

Preet Bharara:

Uh-oh.

Ben Wittes:

How much of your reservation about this has to do with the four corners of the indictment itself? And how much of it is contextual? This being the first indictment of Trump, as in… Imagine that the document is exactly the same. The press conference is exactly the same. Still no page numbers, but it comes after a Mar-a-Lago indictment, a Georgia indictment, and a January 6th indictment. How much of the problem here is that this is first, and how much of the problem is that it’s substantively underwhelming from your point of view?

Preet Bharara:

So it’s not the fact that it’s the first indictment. For me, it’s a question of it being an indictment against a former president. And we can do this exercise. I think we’ve done this exercise in recent weeks, Joyce. With what degree of certainty would you want the likelihood of conviction to sit at before you bring a case against a former president? And how serious should the crimes be?

Ben, I’ll mention to you what I’ve mentioned in the past here. In my law school class at NYU, my seminar, I took a poll and said, “If you had proof beyond a reasonable doubt against Donald Trump to charge a misdemeanor or 34 misdemeanors, would you bring the case?” And the unanimous answer was no, and I also voted no, and I think the panel we’ve had on the podcast also voted no. So that is a recognition that even if something is a crime, given the nature of it, given the unprecedented fact of it, and given who the target is, whether you like it or not, it’s more trouble than it’s worth.

And then the question is, “How much more serious must the crime be to be appropriate to bring?” And then second, as I already mentioned, “What do you want the likelihood of success to be?” This is not anybody, and I think it’s going to be bad for public faith and confidence in prosecutions, bad for people who care about the reputation of the District Attorney’s Office if the conviction is not assured. Now, no conviction is 100% assured. This just struck me as maybe being less assured than you might want in a charge against a former President of the United States.

Maybe I’m making too much of the fact that it’s Donald Trump, and both of you should feel free to attack that premise. But I think if you’re going to do this thing, it has to be very, very, very strong. And upon the first reading of the indictment and the statement of facts, it doesn’t seem as strong as I think any speaking indictment we brought against a public figure in New York, and none of them was a President of the United States.

Ben Wittes:

So I agree with that to a point, but I want to throw a couple darts at it. So the first is when you say you have to be assured. The you in that sentence is a little bit ambiguous, and Alvin Bragg knows the answers to some of the questions, like what is the precise step-up theory that he is not showing his hand on? And so, it could very well be that when he has to litigate those questions, his confidence level on them is a fair bit higher than is apparent from yesterday.

Preet Bharara:

Yup. That may be.

Ben Wittes:

The second thing is, because the misdemeanor is a lesser-included charge of the felony under the relevant New York statute, he actually did charge 34 misdemeanors as well as-

Preet Bharara:

The hypothetical was, you only have the misdemeanor. You don’t have the felony.

Ben Wittes:

No, no, I understand, but I’m saying this gives rise to a genuine possibility here, which is, what if he actually fails on the step-up but succeeds on the misdemeanor? I think the misdemeanor counts, or it’s hard for me to imagine these misdemeanors not sticking. So imagine-

Joyce Vance:

Ben, can I throw a monkey wrench though-

Preet Bharara:

Uh-oh.

Joyce Vance:

… into that analysis just a little bit?

Preet Bharara:

We have darts and monkey wrenches and all sorts of things.

Ben Wittes:

Darts and monkeys. Don’t let the dart hit the monkey.

Joyce Vance:

I’ve been thinking about what that looks like, the misdemeanor charges. In fact, I wrote last night that this isn’t all or nothing. It’s not felonies or acquittal. It’s felonies, misdemeanors, or acquittals. But the question of whether these charges go to the jury as felonies or misdemeanors is largely going to be decided by the judge as a matter of law. And the way I understand the law in New York, which is admittedly a little bit imperfect, is that Trump won’t be able to appeal whatever decisions the judge makes on this issue before a final appeal of convictions. I think there’s a very limited path for defendants to take these sort of appeals on substantive issues, but largely it’s foreclosed until later on.

So the judge will look at each of these three step-up crimes, Ben, and the judge will make a decision about whether or not they pass scrutiny as a matter of law. And I think the jury hearing the evidence, at least if Bragg can prove what he’s laid out in the statement of facts, the evidence will be compelling on these charges. So it’s largely a matter of what they get to hear after the judge decides the legal issues. In other words, if, let’s just say, that there’s a failure here, it could be an indictment going to the jury solely on misdemeanor charges. I don’t think that’s the case, by the way. I think that at least two of the three will pass scrutiny, but there is this interesting interplay between the misdemeanors and the felonies.

Ben Wittes:

Yeah. So that’s exactly the point of the hypothetical I was going to raise and push at Preet. Imagine that we litigate this thing, the motions to dismiss fail, but the judge only allows them to go forward as misdemeanors, and so Alvin Bragg gets 20, say, misdemeanor convictions at a trial in January. Is that a failure or a success?

Preet Bharara:

I don’t know. It’s kind of middling, to the extent people think accountability means not only conviction. And I’m not saying that I think this, but to the extent people think that accountability means not only conviction, but also prison time. First of all, it’s not clear, and maybe folks have a different view. It’s not clear that a conviction on one or more of these felony counts would result in prison sentence or a substantial prison sentence. It’s the lowest level of felony, a Class E felony. And certainly, for a misdemeanor conviction or 34 misdemeanor convictions, does anyone on this panel see jail time for Trump in that circumstance?

Joyce Vance:

I don’t think so.

Ben Wittes:

I don’t either.

Joyce Vance:

I’m not convinced he goes to jail on the felony charges. It’s, what, a four-year sentence, but he’s a first-time offender, so it could be no jail either way.

Preet Bharara:

That’s an important thing to say. A lot of people who are listening, particularly those who are not lawyers or criminal lawyers, when they’re thinking about this and they’re thinking about accountability, they’re thinking about prison. One of the most common questions that Joyce and I get is, “If Trump goes to prison, does the Secret Service get an adjoining cell? How does that work?” And we should demystify that and disabuse people that it is not clear no matter what, and maybe that’s another point that goes to the issue of whether or not some people in good faith might think this wasn’t a serious enough crime to charge. He may not go to prison at all.

Ben Wittes:

I mean, I don’t think Trump is going to go to prison. And by the way, the degree to which you had to shut down New York City yesterday to get him into court at all is good evidence of why it may be very difficult to sentence him to actual incarceration. And if you were to have a sentence of a term of years or whatever, a term of confinement, I think you would almost certainly have to do it as some kind of home confinement or some kind of accommodation.

And honestly, we should deal with that question after he has been convicted and not before, both because the set of issues is completely different and also, honestly, because we shouldn’t be rubbing our hands together like flies on shit trying to gleefully… I mean, there’s something ghoulish about imagining and planning for the incarceration of somebody who hasn’t been convicted of anything, and I don’t want to do it.

Preet Bharara:

Right. I wasn’t, as you know, rubbing my hands gleefully.

Ben Wittes:

No, no, no. I wasn’t talking about you, but I do think some people are being awfully ghoulish about this.

Preet Bharara:

No, but it’s perfectly natural and happens every day, where prosecutors at least contemplate and think about what the potential sentence is and what the maximums are and what the guidelines are in bringing charges against people. It happens all the time. It’s something that’s in people’s minds. And I just wanted to point out to folks, who are thinking about prison at the end of this, so that’s not at all a foregone conclusion for reasons that Ben states, it’s probably on the unlikely side. And that may also be true for the other charges that may be brought in these other jurisdictions as well, and I just want to level set expectations.

Joyce Vance:

I think that’s important, and I’m glad that you said it that way. I also appreciate what Ben is saying, and I think it’s important in these conversations to underline the fact that something that Trump has tried to do is to strip the rule of law, at least as it applies to him, out of our civil society. That makes it even more important in this case to remind people that Trump, like any other defendant, is innocent until proven guilty. He has a right to remain silent if he can, and all of the due process protections that would apply to any defendant apply to him in this situation.

Something that we cannot do is let the former president turn people in this country into a rabble of folks yelling, “Lock him up.” We need to let the system take its course with all those protections in place, and I think that that’s important. But like Preet, and I think like many prosecutors, inevitably, you think early on in a case like this about what the punishment looks like, and that’s, in fact, a part of your calculus. In the federal system, we are explicitly required by the Federal Principles of Prosecution to think about whether what we can do as federal prosecutors is the appropriate outcome in the case.

Is there another authority, for instance, the state or something regulatory, that could handle the system in a more effective way that would produce accountability? So I’m sure that that’s part of Bragg’s calculus here, and I’m sure that he’s very open-eyed about the fact that this may not be a case that ultimately results in incarceration, and that might be a blessing given what we saw happen yesterday morning on the streets of Manhattan.

Preet Bharara:

Yeah.

Ben Wittes:

Yeah.

Preet Bharara:

Let’s run through some more legal issues, because there’s a lot. Right? Yeah.

Ben Wittes:

Can I just say one word in defense of misdemeanors before we do?

Joyce Vance:

Thank goodness somebody wants to.

Ben Wittes:

Yeah. So I would never bring a case against a former president as a prosecutor as a misdemeanor. There’s something on the trivial-ish side about that. And if all you can charge is a misdemeanor, you should probably forego the case. That said, misdemeanors have a real role in accountability. Nobody looks at the Steve Bannon prosecution for contempt and says, “That has nothing to do with accountability for defying Congress.”

Preet Bharara:

Because that’s a misdemeanor. Just folks should be reminded.

Ben Wittes:

Yup. And it won’t produce significant jail time. And if this case… Oh, I have no doubt, by the way, that if Trump were willing to plead to a misdemeanor, there would be a plea deal available here. And so, I do think the misdemeanor is a respectable fallback position that allows the prosecutor to say, “A, here’s a stipulation of fact. This conduct happened. B, that allows you to get out of the jail time discussion, and that, C, in this particular instance, where the misdemeanor is a lesser-included charge of 34 felonies, is an outcome that wouldn’t be wholly implausible or irresponsible as an outcome at a jury trial.”

Preet Bharara:

We’ll be right back with more analysis after this. I think at the end of the day, if we go 18 months or longer with motion practice and security concerns and protests and lots of attention being paid to this, and if, at the end of the day, the convictions were only had on misdemeanors, my expectation is that certainly on the Republican side, on the conservative side, the Trump side, there’ll be a chorus of criticism consistent with what’s happening now, but I think also, on the other side of the aisle, there’ll be people who are saying, “We went through all of this for a misdemeanor?” I’m not saying that’s right, and I’m not saying what you’re saying is incorrect. It’s quite plausible what you’re saying, Ben, but I think there will be grand, broad, and wide disappointment if this ends up being only misdemeanors. Joyce?

Joyce Vance:

So you’re being very practical and you’re probably right, but I’ll tell a quick story about the only misdemeanor case I prosecuted in 25 years as a federal prosecutor. Doug Jones was my U.S. Attorney at the time. I’m not sure anybody else would’ve authorized on this case. Small Black church, rural Alabama, the congregation arrives. The kids actually arrived first on a Wednesday afternoon for Bible study to find the most horrible racist graffiti that you can imagine. I won’t describe it. It was very bad. It was shocking, all around the exterior of the church.

And by virtue of federal law, even though we were able to identify the people who did it, it was a misdemeanor charge. So the question is, do you charge them or do you let it go? I charged. It was a misdemeanor. We knew that up front. It was obviously not the President of the United States being charged. It was extremely important to the community, not just in that small rural area, but it was important to Black people and to just people who were right-thinking across Alabama and across the South. Misdemeanor convictions, incredibly important and validating to the community because conduct that was wrong, the perpetrators were held accountable for.

Preet Bharara:

Yes, and I get that.

Joyce Vance:

People are going to complain in this case no matter what the outcome is. If you shoot at the king, you’d best not miss. I get all of that. But at the end of the day, if Trump’s conduct was a misdemeanor, it was 34 misdemeanors, he should be held accountable.

Preet Bharara:

So I get what you’re saying. I think what you’re talking about is a completely different context in which, just on the face of you saying it, it seems utterly righteous to have brought that misdemeanor. Ben’s example of Steve Bannon and contempt of Congress, utterly righteous to bring that. When you guys were both talking, it occurred to me that one of the themes of Alvin Bragg’s press conference and also in the statement of facts was the justification for why to bring this. And part of the justification was business integrity, that we are the capital of markets and a business-leading community in Manhattan.

Alvin Bragg:

We have a distinct and strong, I would say profound, independent interest in New York state. This is the business capital of the world. We regularly do cases involving false business statements. The bedrock, in fact, the basis for business integrity and a well-functioning business marketplace is true and accurate record keeping. That’s the charge that’s brought here, falsifying New York state business records.

Preet Bharara:

And there was all this talk about how the books and records of companies need to be honest and proper and truthful, and that’s all correct. But in the context of this and the reason why this case is being brought against Trump, did that not fall a little flat to you?

Joyce Vance:

The election context was what made sense to me. Bragg offers the two side by side at the press conference, and New York is a financial center and it’s our bread and butter to protect the integrity of business records. I’m very compelled by the election context, because nothing here happens outside of Trump’s… And we’ve talked about this. The Access Hollywood tape is out. It’s the eve of the election. The Trump campaign is floundering. Many people expect that Hillary wins anyhow, but they are certainly in a state of disarray, and that’s really the context for the Stormy Daniels part of this factual basis.

That’s why I think this example that I have, my one misdemeanor prosecution, really resonates with me. It’s when we’re talking about core values. For me, the core value is that candidates shouldn’t try to withhold important information from voters on the eve of an election.

Preet Bharara:

By the way, I want to make one note and then we should talk about a couple more legal issues before we have to go. On the eve of the indictment being unsealed, Donald Trump hired a new lawyer, I believe the lead lawyer. His name is Todd Blanche. I know Todd Blanche very well. So we have a peculiar circumstance here where, at least for me, I supervised and am friends with both Alvin Bragg, the DA, and I supervised and am friends with the new Trump lawyer, Todd Blanche.

I will say, before all this acrimony starts to come to the fore over the course of the next months, that both of these gentlemen, I think, have integrity, are honorable, are smart or good lawyers, both. Obviously, we’re in the Southern District of New York and I’ve done other things in private practice and elsewhere. I do want to say that I’m worried for Todd Blanche. I’m worried for any lawyer who signs up for service to Donald Trump.

We have a line of people who had certain reputations and certain trajectories before they started working for Trump, including Giuliani to some extent, including Pat Cipollone, including a lot of other people, and the old phrase, “Everything Trump touches dies,” is front of mind for me. So I just want to put that on the record. Should we talk about the motions that’ll be made? We talked a little bit about motions to dismiss. What about this issue that everybody keeps mentioning? Although no one has said they’re going to do it, motion to change venue from Manhattan to Staten Island or someplace else. Is that going to fly?

Joyce Vance:

Is that motion valid because there was so much less publicity in Staten Island? Would that be the theory behind that motion?

Preet Bharara:

The theory behind the motion is that Staten Island has a lot more Republicans.

Ben Wittes:

Yeah.

Preet Bharara:

That’s the theory.

Joyce Vance:

I’m going to say it’s an absolute nonstarter. They’ll bring it if they bring it and the judge will just giggle in chambers as he stamps it denied.

Ben Wittes:

I agree, and I think there’s a legal realist as well as a doctrinal explanation for this. Which judge in the world, which trial judge in the world is going to give up the trial of Donald Trump?

Preet Bharara:

There’s another legal question that we haven’t addressed yet, and it’s something that experts were predicting would be in the indictment, and it’s not, and that’s a conspiracy charge. And one of the reasons legal experts were predicting a conspiracy charge, and I’ve heard many say this, as people in this conversation know, if you allege a charge of conspiracy, that enables you at trial to get all sorts of other kinds of evidence in, including statements of co-conspirators, et cetera, and you’re able to tell a more robust story. The legal theory goes… Joyce, I know you were muttering on text a little bit about the lack of a conspiracy charge. What do you make of that?

Joyce Vance:

Yeah. I’m surprised by that. Maybe they thought the only conspiracy charge they had was a misdemeanor, although that doesn’t make a lot of sense to me given the rest of the indictment. But as a prosecutor, I like a conspiracy. For one thing, it lets me tell a larger story in the indictment, which would’ve been helpful here. But as a practical matter at trial, because of admissibility of evidence issues, it lets you bring in a lot of evidence.

I was looking at the statement of facts and the charges last night and thinking, “Well, perhaps the way they’ve pled this with this very complete listing of charges, they felt like they can get all the evidence in that they need on the substantive counts.” Still, I don’t know why the statement of facts actually starts out by alleging, in essence, a conspiracy charge. I sort of made notes on the side, “Here’s the scheme. Here’s the background. Here are the overt acts.” It all seems to be there. So I’m mystified about why there’s no conspiracy charge.

Ben Wittes:

I was a little puzzled by that as well. I’m not sure I have ever seen an indictment before or, in this case, a statement of facts that describes an illegal scheme but does not charge a conspiracy.

Preet Bharara:

It’s the definition of scheme.

Ben Wittes:

Yeah. I mean, I did find that very puzzling, and Bragg talked about it as… Describes this story whereby there’s an illegal scheme to push this past the election, but then it is not charged as a conspiracy. And so, I kind of wondered about that.

Joyce Vance:

There’s one thing that occurs to me, Preet, and you might be able to shed some light on this. You’ve got a situation where the two obvious co-conspirators, Michael Cohen and then David Pecker, who headed AMI at this point in time, they are both, in essence, parts of plea deals. Cohen pleads and goes to prison. Pecker, there’s a non-pros agreement in which they admit guilt in essence for this. I don’t know if that made the conspiracy less attractive. I think, to me, it would actually make it more really important to charge it, to get that out in front of a jury.

Preet Bharara:

What’s interesting also is the statement of facts mentions multiple times, apparently for the purpose of trying to present evidence of guilt on the part of Donald Trump, that other people admitted culpability, that Michael Cohen, in particular, pled guilty. And in recent years, as people may know, if you’re practicing, the DA’s Office is not going to be able to admit into evidence the fact of Michael Cohen’s guilty plea for the purpose of proving that a crime was committed. Correct?

It’ll come out as impeachment of Michael Cohen because he’s going to have to go through a direct examination and all his bad acts are going to have to come out, and he can be cross-examined on those things. But in some ways, it’s interesting that they’re making a point, and tell me if I’m being unfair. They’re making a point in the statement of facts in a way that seems like something they wouldn’t be able to do at trial.

Joyce Vance:

Yeah. I hadn’t really thought about that. I think that is a little bit odd. And the other thing that’s odd, along the same vein in the statement of facts, is when they’re talking about AMI. They’re talking about also making false entries into AMI’s books, which would, of course, support some of these charges. And I wonder if we’ll see an effort to use that sort of evidence, which would be so much more robust, if this was a conspiracy, than you might on what’s called a Pinkerton theory, make folks liable for every amount of conduct that’s reasonably foreseeable by co-conspirators, so you could hold Trump accountable for AMI’s conduct on that theory perhaps. But it’s a little bit different here when you don’t have the conspiracy charge and you’re still putting all that information out.

Preet Bharara:

We’ll be right back with more conversation after this. Is anyone surprised? Here’s the other thing that’s going to happen. Trump did his rally. He seemed kind of muted. Some stations carried it. Some stations didn’t. But in the lead-up to the unsealing of the indictment, Donald Trump did a number of things. He’s called the DA a Soros-backed animal. There’s that picture he posted of him with a baseball bat next to a photograph of Alvin Bragg’s head. He’s criticized the judge, all sorts of things he’s saying, and it’s going to get worse and worse.

So in the lead-up to the arraignment, people were wondering, “Is there going to be a gag order? Is there going to be a suggestion of a gag order?” The DA’s Office obviously made these points in court. On the other hand, Donald Trump is running for president, and it must be the case that he be permitted in our democracy to campaign and campaign in part on the fact that he’s being, in his mind, railroaded. That’s a First Amendment right that he has. How do you think that will be balanced? How do you think that should be balanced? It seems to me a pretty tricky thing.

Ben Wittes:

It’s a very tricky thing, and it occupied a fair bit of time at the hearing yesterday. The DA’s Office started by raising these concerns with the judge. Your former colleague, Mr. Blanche, responded very forcefully to them in a fashion that amounted to, “Hey, Trump is very upset, but he’s not threatening anybody.” And the judge kind of took it all under advisement and said, basically, “I’m not going to impose a gag order. This guy is running for president. He has First Amendment rights, of course, but watch it. If this continues, I might have to revisit that.”

The other thing they did that I think is the chief mechanism by which they’re going to try to control this is they disclosed that they were negotiating a protective order for discovery that will put very strict limits on Trump’s ability to use any discovery outside of the context of the defense itself, that there’ll be something of a firewall protected by the possibility of contempt between the use of information for the litigation and the use of information for publicly smearing prosecutors or for campaigning or for attacking the courts or whatever.

So I think it’s very much on the court’s mind, and I think the implication that Judge Merchan gave is that he is willing to give Trump a pretty long leash with respect to things like political rhetoric, but he’s going to have to stop well short of endangering people associated with the criminal justice system. And I thought it was pretty interesting that Trump, the most he said yesterday at his press conference or at his speech yesterday evening at Mar-a-Lago was that, “The judge hates me.”

Donald Trump:

I have a Trump-hating judge with a Trump-hating wife and family.

Ben Wittes:

But he didn’t call Bragg an animal. He didn’t use violent rhetoric. He just used whiny rhetoric.

Joyce Vance:

Trump really looks like someone who’s almost inviting the gag order, and not a legal consideration for the judge, but you can imagine how he would use that to his benefit on the campaign trail.

Preet Bharara:

We only have a couple minutes left, and I’m left with a continuing, lingering question that we’ve talked about and people have asked about and was asked about at the press conference with Alvin Bragg, and we’re not going to get an answer. I can tell you that right now. And the question is, why didn’t SDNY bring the case? There’s a period of time during which the reporting is that Bill Barr was putting pressure on them not to bring such a case, but it does seem that SDNY was interested in it because they fought to have language about individual one, Donald Trump, in the court papers when Michael Cohen pled guilty.

So it wasn’t like they were going to take the guilty plea for Michael Cohen and were utterly uninterested in any accountability for Donald Trump. And then, of course, Bill Barr left. There was still time on the statute of limitations. They didn’t bring it. We have speculated about why that might be because maybe Michael Cohen is not a good enough witness. Maybe they thought, in their estimation, it wasn’t a serious enough thing to do, wasn’t worth the resources, and the agita may be a combination of those things.

But we’re not going to get an answer to that, even though as I sit here and as someone who also would not have answered the question, if I were the U.S. Attorney, it’s something that I would really like to understand and know, and I think it would cause people to be able to view the decision by Alvin Bragg as more or less justified. Am I putting too much emphasis on that?

Joyce Vance:

No, I don’t think that you are at all. And I wonder if some of that decision, and this is rank speculation, involves… Michael Cohen has an inability to say that he pled guilty because he was guilty. He said it in a courtroom under oath, but he’s all over television saying, “I pled guilty because they were holding a gun to my head. They were going to force my wife to be indicted if I didn’t take a guilty plea.” So that’s been his explanation. If you’re in the SDNY, that’s a tough witness to put on the stand, even with good corroboration. If you don’t have corroboration, you probably do have to decide you’re not going to go ahead.

And Alvin Bragg said something interesting at the press conference yesterday that he wasn’t pushed on. It was just sort of a quick, quiet line, but he was asked, “Why are you indicting now when you didn’t do it earlier?” And he said, “We have evidence available to us that was not available during my predecessor’s tenure,” or words to that effect. That might be interesting to note. Does he have something fresh and new that corroborates Cohen? If so, what is it? Maybe it would’ve been evidence that would’ve changed SDNY’s calculus too, but they’re out of time.

Ben Wittes:

Yeah, I agree with that. I think there is a lingering question about why SDNY didn’t bring the case, and I do think you would feel differently about it if the answer to that question is SDNY thought the conduct was marginal and the witness, the chief witness, was relatively unreliable than if the answer to it was SDNY didn’t bring it because there was a sense that mean justice that after January 6th, if we’re going to bring a case against Donald Trump, it should really be about the main event, and so they left important federal interests unaddressed.

Then you might look at Alvin Bragg and say, “Okay. Well, the SDNY gets to do that, but we have a system of divided sovereignty and New York gets to make its own judgment.” And so, I think the reason for SDNY’s declination on this case really does matter to an equitable assessment of it. But that said, we’re never going to know the answer to it. So it’s one of the many variables that you’d like to know what the coefficient is, but you’re not going to.

Preet Bharara:

You know what I’m going to do now? I’m going to impose a gag order on both of you because our time is up.

Ben Wittes:

Our First Amendment rights are being squelched.

Preet Bharara:

I think Ben Wittes should run for president.

Joyce Vance:

I’d vote for him.

Ben Wittes:

The constituency for dog shirts, and unlike Donald Trump, I am banned from Twitter. So I think my candidacy prospects may be pretty limited.

Preet Bharara:

But you’ll live longer due to that ban. Ben, Joyce, thanks for joining again on a historic, momentous occasion, and we’ll see how it unfolds. Stay tuned.

Ben Wittes:

Thanks for having me.

Joyce Vance:

Bye, y’all.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Joyce Vance and Ben Wittes. For more analysis of the Trump indictment, consider joining the CAFE Insider community. Each week, Joyce and I break down the latest legal headlines on the CAFE Insider Podcast. You can get your first month for just $1. Head to cafe.com/insider. That’s 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 @PreetBharara with the hashtag #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.