• Show Notes
  • Transcript

This week on the CAFE Insider podcast, Dan Goldman guest co-hosts with Joyce Vance while Preet is on vacation. Dan served as House Majority Counsel during the first impeachment of Donald Trump, and before that, he worked as an Assistant U.S. Attorney in the Southern District of New York under Preet. In the episode, Joyce and Dan break down the reports that Manhattan DA Cy Vance is close to bringing charges against the Trump Organization, and the suspension of Rudy Giuliani’s law license. They also assess the fairness of the sentence Derek Chauvin received for murdering George Floyd.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce.

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network.

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

BILL BARR

“Inside William Barr’s Breakup With Trump,” The Atlantic, 6/27/21

“Disputing Trump, Barr says no widespread election fraud,” AP, 12/1/21

THE TRUMP ORGANIZATION

NY Penal Law §20.20 – Criminal liability of corporations

New York Penal Law §460.20 – Enterprise corruption

New York Civil Practice Law and Rules §1311 – Forfeiture actions

“Trump attorneys meet with New York prosecutors to argue that his company should not be criminally charged over its business practices,” WaPo, 6/28/21

“Trump Organization Could Face Criminal Charges in D.A. Inquiry,” NYT, 6/25/21

“Manhattan DA could pursue racketeering charge in Trump Org probe, experts say,” Politico, 5/27/21

Dan Goldman tweet, 6/29/21

RUDY GIULIANI

NY State Unified Court System Rules of Professional Conduct, 1/1/17

NY Supreme Court, Appellate Division, Rules for Attorney Disciplinary Matters, 10/1/16

In the Matter of Rudolph W. Giuliani, NY Supreme Court Appellate Division First Department, opinion, 6/24/21

“Court Suspends Giuliani’s Law License, Citing Trump Election Lies,” NYT, 6/24/21

Matthew Miller tweet, 6/24/21

DEREK CHAUVIN

 Minnesota v. Derek Chauvin, Hennepin County District Court, Sentencing order and memorandum opinion, 6/25/21

Minnesota v. Derek Chauvin, Hennepin County District Court, Verdict and findings of fact regarding aggravated sentencing factors, 5/11/21

Minnesota Sentencing Guidelines and Commentary, 8/1/20

VOTING RIGHTS

52 U.S.C. §10301 – Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

U.S. v. Georgia, U.S. District Court Northern District of Alabama, complaint, 6/25/21

Brnovich v. Democratic National Committee, U.S. Supreme Court, oral argument transcript, 3/2/21

“Justice Department Files Lawsuit Against the State of Georgia to Stop Racially Discriminatory Provisions of New Voting Law,” DOJ, 6/25/21

Joyce Vance:

From CAFE and Vox Media Podcast Network, welcome to CAFE Insider. I’m Joyce Vance, and with us today filling in for Preet who is on vacation in New Orleans is former House Majority counsel and former assistant US Attorney for the Southern District of New York Dan Goldman. Welcome back to the show Dan.

Dan Goldman:

Thanks so much for having me Joyce, it’s…large shoes to fill, but I’m excited to chat with you about the legal issues of the day.

Joyce Vance:

Oh come on, they’re not all that large and you worked for Preet for a long time. Since he’s not here, let’s talk about him behind his back. Do you have any good stories?

Dan Goldman:

Preet was a great boss. My seven years working for him were some of the best of my career and love listening to you guys banter.

Joyce Vance:

Preet and I were in that first group of Obama US attorneys who were confirmed. So we had that friendship that was forged in fire because although people have forgotten now, there were some changes that were being made in DOJ in Washington after the end of the Bush administration and the scandal over the firing of US attorneys. And so our friendship was sort of forged in that crucible, and Preet actually was always really, really great to deal with, that cannot, however, be said of someone else who sat in that building on Pennsylvania Avenue in Washington, DC, sat in the Attorney General’s office. And that’s Bill Barr who I think we should talk about just a little bit before we get started today.

Joyce Vance:

Barr once said that history is written by the winners. But this week, he’s been trying to rewrite some history even though he’s a loser. He seems to want us to believe that he’s not the guy who lied about the Mueller report, who tried to shill for the president and spent years acting as the President’s lawyer, not the people’s. What do you make of this reputation resuscitation tour that he seems to be on?

Dan Goldman:

Well, it’s pretty remarkable to see what he is so blatantly trying to do. I think he would like all of us to just isolate the one statement he made about how he had not seen any evidence of election fraud or voter fraud that would overturn the election, and just forget everything else that he did in what I would say is corrupting the Department of Justice which you and I love so much. And my sense of it is that it’s so obvious and so transparent what he is trying to do that it didn’t seem to land very well with the public, or at least what I’ve read, but oddly enough, not oddly enough, I guess we could expect it, it really didn’t land well with the former guy, his former boss.

Dan Goldman:

One of the things I love about Donald Trump and I say that with some sarcasm is how he literally at this point refers to anyone who says anything mildly critical of him as a RINO, Republican in name only. And after effectively two years of Bill Barr doing all of his bidding and shilling for him and protecting him and lying, literally lying on his behalf. The fact that when Barr says what is a fact that we all know to be true, and I think Donald Trump probably knows to be true in his heart that there was no election fraud, that all of a sudden he’s cast to the side and thrown out and it’s another example of loyalty to Donald Trump ultimately bears no fruit.

Joyce Vance:

Well, I might take issue with your statement that Donald Trump has a heart. I have yet to see any evidence of that. But the comments that you’re referring to, Barr spoke with AP Justice beat reporter Michael Balsamo early in December, and made this one statement about fraud. And what’s brought it back into public focus is an article in The Atlantic by Jonathan Karl which really does smack a little bit of an effort by Barr to rewrite this history. Do you think this one statement made in early December that he didn’t see significant evidence of fraud really means anything in light of everything else that went on?

Dan Goldman:

No, ultimately, it didn’t get that much attention. We paid attention to it, but certainly Donald Trump, Rudy Giuliani and all of their supporters that were ratcheting up the pressure and the tension and the lead up to January 6th didn’t care very much for it. But the other remarkable thing about Jonathan Karl’s article is that bar in his effort to restore his reputation acknowledges that he was coordinating with Mitch McConnell, the majority leader of the senate at that time in trying to politically or for political reasons stem the tide of some of the accusations and allegations that Donald Trump was making because McConnell wanted to win those two Georgia seats, he needed to win those two Georgia seats.

Dan Goldman:

And so it’s remarkable to me that Mitch McConnell in trying to figure out a political solution would reach out to the Attorney General of the United States. And you and I know all too well that the attorney general in the Department of Justice has since the Nixon era kept its distance from politics. And this was a reflection and an admission that Bill Barr was very immersed in the politics and the political aspect of things. It’s not a surprise, we knew that. But the fact that he wouldn’t include that in his effort to reputation launder as you like to say is really, really amazing to me. What do you think?

Joyce Vance:

Dan, my reaction is really similar to yours. We were raised in this culture at DOJ where we were strictly apolitical. And so this notion that the Attorney General is really in bed with the Senate Majority Leader here, and that he’s letting political concerns, you’ll forgive me, Trump, justice concerns is just really unimaginable if anything, Barr is just putting the final nail in his coffin here and in my view.

Dan Goldman:

I agree.

Joyce Vance:

So Dan, everybody seems to be at DEFCON 5 over news that the Manhattan District Attorney Cy Vance is getting ready to indict Trump Organization, perhaps Allen Weisselberg. Let’s start before we jump into the details of that with your tweet from this morning. I thought you were dead on the money here. You tweeted as I’ve been saying for a while, “If Allen Weisselberg does not cooperate with the Manhattan DA’s office, and all indications are that he has not and will not, that office will not be able to criminally charge Donald Trump for any of the conduct under investigation.”

Joyce Vance:

And I agree with your assessment. White collar cases are tough to prove because in addition to proving conduct or actions, what lawyers call the actus reus, you also have to be able to prove state of mind or mens rea. In white collar cases, that’s often guilty knowledge or intent and a slippery defendant and Donald Trump surely fits the bill for that can find ways to insulate themselves from proof of intent. That’s why in my judgment, prosecutors have pursued Weisselberg as a witness with such a laser beam focus, they’ve got this whole treasure trove of documents and of evidence, but they need a witness who can say, “Trump directed this.” “Trump knew it was his intent to engage in fraud.”

Joyce Vance:

And without Weisselberg, that could be difficult. Maybe there are other witnesses from inside of the corporation or outside who can get them there. But I’m not sure we’re seeing signs that they’re confident of that yet. So I think we’re likely to see if we see anything this week, a limited indictment, something that focuses on non-payment of taxes on fringe benefits provided to employees, we’ve heard a lot about an apartment provided to Weisselberg’s son or to other kinds of fringe benefits like 10s of 1000s of dollars spent on private school tuition for Weisselberg’s grandchildren.

Joyce Vance:

If those benefits didn’t get properly recorded in the company’s Ledger’s and if taxes weren’t paid on them, it’s possible that that could result in criminal charges against both Trump Organization and against Weisselberg personally, although that would be sort of frankly unusual to charge just that without more. But what do you think about what’s going on here? What do you think about what we’re hearing? Is an indictment really in the works? And what kind of charges are you expecting?

Dan Goldman:

Well, there’s a lot to unpack here. And I think, first, I just want to explain the tweet because there’s been a lot of reaction to it that’s frustrated and I think many people don’t understand it for very good reason. Donald Trump has a number of defenses that he could raise to allegations that he committed any type of fraud, tax fraud, loan fraud, insurance fraud, bank fraud, even though there’s not a bank fraud statute in New York State, it would be grand larceny, but he has defenses such as my accounting expert, the CFO told me that this was fine.

Dan Goldman:

My lawyers vetted everything and they told me that it was fine. So I signed everything but I relied upon the experts who worked for me to okay it and therefore I signed it. And unless you have a witness or a document, let’s start there, unless you have a witness or a document that shows that that’s not the case that Donald Trump intended to defraud the tax authorities or the banks or the insurance companies or whomever, then you cannot charge him criminally. You may be able to charge him civilly because he is the head of the company and he signed something, but you cannot charge him criminally.

Dan Goldman:

And the problem that the Manhattan DA’s office is going to face is that Donald Trump notoriously does not email. So you’re not going to have something in writing from Trump that will get you to that intent requirement. And therefore the only way to get there is a witness testimony. And the reason why I have focused so much on Allen Weisselberg, and why I think the Manhattan DA’s office has focused on him is that and I’ve spent some time looking into The Trump Organization when I worked for the House Intelligence Committee.

Dan Goldman:

It’s a very, very small organization, and Allen Weisselberg is the numbers guy. He is the CFO, and all things run through him that are crafting their financial statements and loan applications or whatever it may be. He is the numbers guys, the accounting guys, the CFO. And part of why we know that is that when that recording between Michael Cohen and Donald Trump about the hush money payments, Michael Cohen said that he created and vetted everything through Allen Weisselberg. So we know that he is the guy from that recording and from the structure of the Trump Organization.

Dan Goldman:

And so there’s really no one else in that company who would have the detailed knowledge of Allen Weisselberg and that would likely be speaking regularly to Donald Trump about if there is misconduct about the misconduct. So if he doesn’t cooperate and testify, then you cannot get to Donald Trump criminally. So I think as a backup plan, it sounds like the DA’s office is focusing on the corporation. And Allen Weisselberg represents the corporation.

Dan Goldman:

So he may have made false representations that he could be individually liable for, but if he made them on behalf of the corporation of the company, then the company could be charged, and that in some respects would reach Donald Trump because if a corporation is charged with a crime and indicted, then the banks, the insurance companies, everybody that does business with a corporation that is indicted takes a step back and reevaluates their relationship and many may have policies with internal policies and regulations that prevent them from doing business with an indicted company, certainly with a convicted company, but even an indicted company.

Dan Goldman:

And so what they may do is they may say, “All right.” Deutsche Bank may say, “You know what? We’ve got hundreds of millions of loans out there, but we cannot, based on our internal policies do business with a corporation under indictment, so you need to repay all those loans.” While The Trump Organization cannot repay all those loans right now, they don’t have enough capital to be able to do that. So they default on their loans and we could then see a bankruptcy or some other demise of the corporation.

Dan Goldman:

And so it’s very important to draw the distinction, the same charges against Allen Weisselberg may carry prison sentences although they would likely be very light prison sentences in New York State which may be one reason why he’s not cooperating. But the same charges against The Trump Organization. Of course, a corporation cannot go to prison, but they may have ripple financial effect on the corporation that those charges against Allen Weisselberg would not have.

Dan Goldman:

So I think and I’m curious as to your thoughts, I think this is somewhat of a backup plan because Allen Weisselberg did not cooperate. And therefore this is a way of penalizing The Trump Organization for what I hope as a former prosecutor is more than simply misstating or mis-accounting for fringe benefits even if that is illegal, and it is, but I would hope that there’s a higher bar to indicting a corporation than something like that.

Joyce Vance:

It’s interesting. This is roughly two years of investigation, not just by Vance, but also by New York State Attorney General Letitia James, they’ve shocked those investigations together. And I agree with you that if this is just about fringe benefits, it may not hit right. It may not even have some of the financial chain reaction that you’re talking about that could happen when a corporation is indicted. There is a whole lot to unpack here.

Joyce Vance:

So let me start at this most basic place, we had a lot of listener questions about reporting that people from Trump Organization and Trump’s own lawyers were meeting with prosecutors in a last ditch effort to keep the organization from being indicted. And many people were concerned that smacked of favoritism. But in my experience, and especially in a white collar case, you often meet with the defendant’s lawyers right when you’re in the run up to indicting.

Joyce Vance:

For one thing in criminal cases, unlike in civil cases, there’s not this robust discovery where the defendant is required to turn over all information to prosecutors. And so often as a prosecutor, your best glimpse into the defense that a defendant is going to mount comes at this last stage where they’re trying to convince you not to indict them. And it’s also just a good reality check to make sure that you haven’t missed anything in the evidence that you’re not making a mistake. And that your indictment really is good to proceed. So I think that these sorts of meetings are normal, that there’s no favoritism being done here. Do you make anything of that?

Dan Goldman:

I don’t make anything of the meeting, that is standard routine usual practice, when you’re considering indicting a company. You want them to be able to make their case not just against the charges themselves, but one of the considerations are the collateral consequences against the company. So you have to give the company an opportunity to be heard and to say, “If you indict me, this is going to happen. And that’s going to mean a thousand people lose their jobs, so we would like to avoid indictment.”

Dan Goldman:

The other thing that that meeting does is it usually initiate settlement discussions. And it may be a situation where they wanted to notify that we are preparing to indict, you can make a case why you shouldn’t be indicted, but maybe you want to settle this in some fashion short of an indictment, perhaps because you want to save the company. And so that is standard operating practice in any case that’s considering charging a corporation. The other thing to consider, and this is I think really important here, and I do think it’s very important for the Manhattan DA’s office and particularly in conjunction with the New York Attorney General Letitia James who I personally think went a little awry when she campaigned about taking on Donald Trump and trying to investigate him.

Dan Goldman:

I think you really need to play this by the book. And by the book means there should be precedent for doing what you’re doing in other cases. And one of the considerations has to be about indicting a corporation is whether this is pervasive and persistent conduct. Whether this is not just a one-off thing, but whether this has been going on for years, and effectively, the whole corporation is corrupt. So my hope is that if the company is indicted, there’s a lot more than we’re hearing, we will have to wait and see, but I really do hope that this is by the book and that there’s more to it than these fringe benefits.

Joyce Vance:

I really agree with you here. Anything that smacks is targeting Trump particularly in light of the comments that Tish James made when she was campaigning is going to be problematic. You and I have talked on numerous occasions about how important it is for prosecutors to maintain their credibility so that the public can have confidence in how the criminal justice system works. Otherwise, it really does give some power to inevitably Trump’s arguments that this is just a witch hunt even though it wouldn’t be, even though it would be a technically proper indictment based on those allegations of tax failures. Prosecutors really need to go above and beyond here to maintain their credibility.

Dan Goldman:

Well, not only that, I would jump in there because for those who are very concerned about what the four years under Donald Trump did to the rule of law, you cannot now turn around and use some of those same improper tactics and an erosion of the rule of law against him and feel okay about it. In order to restore the rule of law, we need to uphold it and maintain it even if it’s politically inconvenient for some. There’s a strong tendency to want to get him by a lot of people and I understand that, but we cannot stoop to the level that he did in order to get him for political reasons.

Joyce Vance:

This feels like a very important point to me because I know there are so many people who from a place of emotion, understandable emotion, I’ve been there myself want to see there be some accountability for all of Donald Trump’s misconduct. But the reality is it’s like when you’re playing a card game, you can’t be so focused on winning one hand in the card game, that you’re willing to break all of the rules and blow up the whole game. We are a rule of law country and that means that we are committed to a lot of principles including due process of law, we don’t just lock people up because we don’t like them or because we think that they’ve done something wrong. And we have this very high burden in our criminal justice system of proof beyond a reasonable doubt.

Dan Goldman:

My inclination, my belief is that this is likely it. And that based on reports that Allen Weisselberg’s attorneys have also been talking to the DA’s office, that he knows what he is going to be charged with, if anything, and he has made the decision that he’s going to either fight the charges or just plead guilty, but that he’s not going to cooperate. And I think that’s why they’ve gone to consider charges against the corporation. There’s really no incentive by charging the corporation to get anyone to cooperate.

Dan Goldman:

The incentive would be to avoid jail time, that’s obviously not going to happen with the corporation. It feels to me indicting the corporation is kind of the last step that you would take in an investigation. You focus on the individuals as much as you can, you see where it can go, but then if in the end, you can’t get any further in terms of individuals. And by the way, there may be more individuals than Allen Weisselberg down the line, maybe his son, there have been rumors that he may be charged as well. He also worked there, but it feels to me like this is it, whatever happens this week is it unless Allen Weisselberg decides to cooperate which I don’t think he will or something like that. What do you think?

Joyce Vance:

Allen Weisselberg feels like one of those defendants who has a choice to make, as prosecutors in my office used to like to say he can either be on the bus or he can be under it. He can either cooperate with the prosecution, or he can run the risk of trial and being convicted. And it looks to me like he’s made a decision that he can do whatever time he might get if he’s convicted two years, three years. Maybe he thinks that he can beat the charges against him and do no time at all.

Joyce Vance:

And look, Cy Vance who has been in this game for a long time knows how to bring pressure on a witness, that’s probably why there’s been investigation into Weisselberg’s son, most people won’t let one of their kids go to prison when push comes to shove, and we’ll make the decision to cooperate. But Weisselberg has worked for Trump for a long time, he’s got a high tolerance to risk. And unless prosecutors have found an alternative path into Trump’s mind, maybe if Michael Cohen has something, but they’ve been talking to him for a long time, that’s all been pretty public, it feels to me like this is it.

Joyce Vance:

I will say the special grand jury remains in session through the end of the year. So certainly, there’s that possibility of additional activity. But this has a little bit of a sense of finality to it.

Dan Goldman:

Yeah, and you raise a good point that with family members, that’s often a strong incentive to cooperate. But I have two responses to what you just said. The first is related to Michael Cohen who I spent a fair amount of time with when I was with the House Intelligence Committee, in meeting with him and then deposing him. Michael Cohen is not enough to get to Donald Trump. He was not the numbers guy, he has some information that’s very public about the insurance applications and the valuation, the different valuations of the same property whether it was to insurance companies or tax authorities, inflating the value to insurance companies so the insurance you get is more.

Dan Goldman:

But Michael Cohen doesn’t know the details, and he’s simply not enough to get to Donald Trump. And that’s putting aside some of the credibility concerns and some of the concerns you would have for him being your star witness given how much he’s been out there in public, that’s never a good thing for a witness. But the other thing I would just add, and I think this is very important to think about. In white collar cases, the New York State law which the Manhattan DA’s office implements, has broadly speaking, very light penalties, particularly in comparison to federal law.

Dan Goldman:

And so one of the considerations I’m sure that is going through Allen Weisselberg’s head is the charges that may be coming against him are going to carry very light penalties. It’s entirely possible Joyce that he could plead guilty and get a sentence of less than a year based on this conduct. And so that is not a good incentive. The New York version of RICO of racketeering which I think The Trump Organization and Donald Trump would be right for on a federal level, the New York law is much more restrictive, and it’s much harder to prove of RICO charge under New York law. So Cy Vance is somewhat handcuffed here by the laws that he has to work with which he of course he does not have a choice about.

Joyce Vance:

Well, last question Dan since you raise it. Your old office, the Southern District of New York once identified Donald Trump as individual number one in a prosecution where Michael Cohen was convicted. As you say federal law on RICO has much more broader provisions than New York’s little RICO statute has. And frankly federal law when it comes to criminal asset forfeiture, taking assets away from someone who’s engaged in misconduct is much broader than New York’s very limited, rarely used asset forfeiture provisions for this situation. Do you think that we’ll see the Southern District of New York get into this whole mess?

Dan Goldman:

I don’t. I think that investigation is over. I don’t quite know why. I think in some respects it’s too bad. I certainly believe as a former prosecutor that there was enough evidence to charge Donald Trump for the hush money payments for campaign finance fraud. You not only had Michael Cohen, you had David Pecker, the head of the National Enquirer, the parent company, who apparently cooperated with the southern district who could testify that he was asked to pay McDougal the money to catch and kill her story. And then you have that recording that I mentioned earlier between Michael Cohen and Donald Trump which is really powerful evidence. And then you have the cover up which is also excellent evidence.

Dan Goldman:

So to me if you’re going to charge a campaign finance violation, an election fraud charge based on campaign finance fraud, that would have been the case, but they closed that investigation. And I don’t know why, I would be curious whether Bill Barr and the higher ups at DOJ had anything to do with that. I had heard rumors that Bill Barr did not like the theory of that case, even putting aside politics. And then the other problem I think that the southern district had is there was reporting that they brought Allen Weisselberg into the grand jury.

Dan Goldman:

Now that creates, it’s too complicated for us right now, but that creates a lot of problems, to prosecute someone who has already testified in the grand jury because you can’t use that information against them. In some cases, you can’t use that information against them, but that creates a lot of problems. So I don’t know why the Southern District walked away from it, but they did. And I do not expect there to be any federal charges for The Trump Organization or any conduct related to that. There are other investigations that may involve federal charges against Donald Trump, but not for this conduct.

Joyce Vance:

I agree with you that there are so many unanswered questions there. And in part, we’re now bumping up against the statute of limitations. Typically, for most federal crimes, the statute of limitations is five years. Of course, if there’s a conspiracy, that statute runs from the last act of the conspiracy. If there’s an ongoing cover up, you might get a couple of extra years on that statutory period, but I think this is one of those mysteries of the Trump era that will have to be untangled down the road. I look forward to your book Dan.

Dan Goldman:

Well, my book will definitely include our next topic Joyce, Rudy Giuliani who has completely disgraced himself and the former office where I worked where many decades ago he was the US Attorney. And the big news last week is that his law license was temporarily suspended on an interim emergency basis because of the lies that he told to just about everybody in every tribunal who would listen to him related to the big lie and in the last fall and winter where he was preaching all of these bogus allegations for which there has still been no evidence to support.

Dan Goldman:

And ultimately, a panel of five judges in New York State took the extraordinary measure of temporarily suspending his law license which really only happens when there’s an urgent concern about the continuation of the misconduct that could have an impact on the public or other individuals. So I’m curious what your thoughts are about Rudy Giuliani’s bar license suspension.

Joyce Vance:

You really don’t see bars take action like this every day. This is the kind of thing that you see when a lawyer is mishandling or stealing client funds. For the most part, Dan, I spent actually a couple of years on an Alabama grievance panel where we considered complaints that were raised against lawyers and recommended discipline. And although the procedure is different in different states, that’s really the one consistent feature is that the bar is slow to discipline and hesitates in many cases to discipline lawyers, unless there’s evidence that that lawyer is mishandling client funds, and so here New York takes this really unusual step.

Joyce Vance:

They suspend Giuliani’s license to practice law while the results of the full investigation are still pending. They haven’t reached a final decision on disbarment. And to get to this point, you’ve got to have uncontroverted evidence of misconduct, as well as an indication that the lawyer is an ongoing imminent threat to the community. My favorite part of this opinion that they wrote in suspending Giuliani’s license is a footnote, footnote four where they talk about the nature of the evidence that Giuliani was engaging in lies to support Trump’s big lie, and I’m just going to read the footnote, I really want your reaction to this.

Dan Goldman:

It’s so good, I know what you’re coming with. It’s so good.

Joyce Vance:

I love this. And really, I think that if Republicans had had the level of courage that five judges in New York had, and just calling a spade to spade when this was all taking place, maybe the country would have been spared a lot of this trauma. So this is what they said. “In opposition to this motion, respondent …” That’s Giuliani, “Refers to affidavits he has not provided. He also relies on a confidential informant. We do not understand nor does respondent explain why, as a private attorney, seemingly unconnected to law enforcement he would have access to a ‘confidential informant’ that we cannot also have access to.

Joyce Vance:

Yet another point, respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified, in an Excel spreadsheet, also not provided purportedly listing the names of thousands of deceased voters, who allegedly cast ballots in Michigan …” Yada yada yada yada. What do you make of this?

Dan Goldman:

It’s just so outstanding because it’s essentially calling him out for in a meaningful way. And this is really the difference Joyce between a court and a court of law, and Fox News or some other or OAN or some other right wing media outlet that just takes these allegations and runs with them. In court, you actually have to present the evidence, you can’t just talk about it, you have to present it. And Giuliani has argued while there has been no hearing and that is true, that’s why this is somewhat remarkable.

Dan Goldman:

But he did submit an affidavit or a declaration. And ordinarily, as you know, Joyce, in civil cases, you would submit a declaration and then you would talk about evidence, and you would attach all that evidence. And the fact that he thinks he can pull a fast one on a court by talking about these phantom affidavits that he’s been talking about for months, and not presenting them to the court is truly remarkable. And I thought that the court did such a great job of calling him out, at one point they said, “We cannot consider evidence that has not been presented to us.” And that’s exactly right.

Dan Goldman:

And so they really just did a absolute decimation of all of his claims based on public records and the Department of State and Georgia, the Secretary of State investigated a lot of these allegations. There have been a lot of investigations of these allegations, and there’s just no truth to them. And so I actually think perhaps one of the most notable aspects of this whole ordeal is the dressing down of the big lie that this court does. It takes each of these allegations that have undergirded the big lie for months now, and just destroys them, it shows how they are not factually correct, they’re not supported by any evidence.

Dan Goldman:

And Giuliani had an opportunity to present that evidence as he did many times previously, but he did not do it here. And the chicken as you might know has come home to roost Joyce.

Joyce Vance:

As they do.

Dan Goldman:

As they do. And this may ultimately be a minor issue for Giuliani who is under criminal investigation by his own former office which obviously takes precedence over his bar license. He doesn’t practice much law in court anyway, except when Donald Trump has no one else to represent him in court. He hasn’t really done anything in court for decades, but the upshot of this is it really just calls out the big lie.

Joyce Vance:

To that point, one of the interesting arguments that they make here, it really talks about the way that the big lie worked. The big lie worked because people that were representing Trump at that point in time went out in public, and talked about election fraud and how rife it was, and that you couldn’t really have any confidence in the outcome of the 2020 election, that it had been stolen. But when they went into court, the allegations never involved fraud, they were never willing to say under oath that there had been fraud.

Joyce Vance:

And so this opinion about Giuliani points out that when he was in court in Pennsylvania, he was talking about fraud. And it’s something like page 118 of the transcript of that hearing where the judge finally just point blanks them and gets him to concede that they’re not alleging fraud. He’s talking about it, he’s acting like there’s proof, but they actually have this point amended their court filings because they know that they can’t prove it. And so the court here takes on really the way that the big lie operated.

Joyce Vance:

I think this is mandatory reading even though it’s I think 30 plus pages of legal stuff talking about lawyer ethics. I think it’s mandatory reading and it’s a pretty good read, the court did a good job here. So the big question, the suspension is temporary. Do you think Giuliani gets permanently disbarred in the state of New York as a result of this?

Dan Goldman:

Absolutely. I think there’s very little question. I think he could have presented any evidence to make the facts controverted. The court recognized there’s been no evidence presented, and it’s not as if, “Oh, wait a minute, I’m still doing an investigation.” He either has the evidence, or he doesn’t have the evidence. The issue here and it gets somewhat technical is whether he knowingly made these misrepresentations.

Dan Goldman:

He of course makes a First Amendment claim which is completely bogus. But the only thing with any thrust is whether he knowingly made these false statements I think. And I thought the court addressing it was very interesting where he said that he didn’t know they were false, that someone on his team told him and he then went and said it. But the court found that that does not create a meaningful dispute as to whether he knowingly did this. And that’s the only I think issue that he has to say that he was so incompetent, that he did not know that his statements were false.

Dan Goldman:

That’s his only defense here is that he’s such a bad lawyer and he’s so incompetent, that he didn’t make false statements. But by the way, there’s also a requirement under the New York bar laws that you actually have to be competent to. So he’s trying to trade one problem for another in order to get out from under this case, but I think he’s done and I frankly think that he’s got bigger fish to fry.

Joyce Vance:

So coincidentally as fate would have it, all of Trump’s lawyers seem to go the same direction. Roy Cohn was disbarred on the same day that Giuliani was suspended June 24th, although 35 years earlier, and a friend of the podcast, Matt Miller who used to be our press spokesman at DOJ during the Obama administration tweeted, it turns out, Trump had found his Roy Cohn after all. Derek Chauvin convicted of George Floyd’s murder was sentenced by a state court judge in Minnesota on Friday. He was sentenced to 22 years in custody. Does the sentence feel right to you Dan?

Dan Goldman:

This is a really difficult question, and there’s so many emotions attached to this case that there are strong opinions on all sides. There’s an old saying that when both parties are unhappy, that probably means it was a good decision. And it does sound like George Floyd’s family is upset about the sentence whereas others, police unions and police supporters are pretty upset about how long it was. It is the longest sentence ever for a police officer for an excessive force case.

Dan Goldman:

And look, you and I are lawyers. We are trained not to look at these things emotionally. And I think when you look at what the charge was which ultimately is second degree murder, unintentional second degree murder because there was no evidence that Derek Chauvin set out to kill George Floyd. And you look at the sentencing guidelines in Minnesota which are very important as a anchor for uniform sentencing. You don’t want to sentence some defendants way outside the norm above or below the point of the sentencing guidelines is to create some factors for judges to consider that will be consistent and uniform.

Dan Goldman:

The judge here upwardly departed, meaning that he found there were aggravating factors. And I thought, Derek Chauvin conduct was particularly cruel to George Floyd and I agree with that. And for that reason, there was an upward departure, but the standard sentence under the guidelines without any aggravating factors was around 12 and a half years. And so to do 22 and a half years is a really significant long sentence. And for those who are saying, “It’s not justice, because George Floyd is not coming back.”

Dan Goldman:

Of course that’s true, but no sentence would bring George Floyd back. And I think it is important to recognize that our criminal justice system has to work consistently and uniformly. And we also can’t advocate for excessively long sentences for some people and while also be advocating for shorter sentences for other people, I think that in order to get to a just place, we need that continuity, that consistency that uniformity. To my mind, this was a fair and serious and significant sentence that sends a message to everyone around the country, every police officer around the country. No one wants to go to jail for one year, much less 22 years, that is a really long time. What do you think, Joyce?

Joyce Vance:

I agree with you. I was pleased to hear Judge Cahill say when he imposed the sentence that it was not based on emotion or public opinion, that he was grounded in the facts and the law. And that’s exactly how he imposed sentence based on Minnesota law. Something that we have to think about here is that this is a specific sentence cabined by Minnesota law, and it has to come down under Minnesota law.

Joyce Vance:

So it’s pretty easy to look at instances across the country. The woman who goes to prison in Texas for five years in essence for accidentally voting when she’s not able to vote, or people under Alabama’s three strikes law who go to prison for the rest of their lives for relatively small amounts of theft because they’ve done it more than one time. Chauvin whether you like it or not, is a first time offender and that means that under sentencing guidelines rubric, he’s treated a little bit more leniently.

Joyce Vance:

But when you look at the sentence here, the guidelines called for 12 and a half years, and the judge departs up based both on the cruelty factor that you talk about, and on his abuse of a position of trust. 20 years is a long time for anyone, let alone a former police officer to serve in prison. And so I think this sentence accomplishes a lot of the goals that I think are important in the criminal justice system. It really does meet out punishment, its retributive and I think in that sense, it’s an appropriate sentence. But I’ll tell you what I like the most about it.

Joyce Vance:

With my former appellate lawyer hat on, I think this sentence is bulletproof because of the way the judge announced it. He carefully considered the aggravating factors, he found some but not all of them existed. And then he found that only two of them warranted the upwards departure. He could have gone up further, he didn’t go all the way up, this could have been a 30-year sentence. And so I think in every way, this is a reasonable, thoughtful sentence he did not exceed his discretion. And so the Minnesota courts are very unlikely to reverse it on appeal, that to me seems to be important here.

Dan Goldman:

Joyce, you really are jack of all trades, you’re a former appellate lawyer, you were on the Alabama Grievance Committee, and you’re a voting rights expert too and I know you’re eagerly awaiting the Brnovich case from the Supreme Court, and have no doubt been following very closely the Department of Justice’s law sued against the state of Georgia for their election laws. What are your thoughts about these voting rights issues?

Joyce Vance:

Fortunately for us Dan, although the Supreme Court came down with three opinions this morning, Brnovich, the voting rights case was not among them. So we won’t have to try to figure out what that opinion means on the fly. But just as a heads up for next week, Brnovich has a case under Section 2 of the Voting Rights Act. You’ll remember that in 2013, in the case of Shelby County v. Holder, the Supreme Court gutted the protections of Section 5 of the Voting Rights Act which required covered states to submit for preclearance changes in their voting procedures.

Joyce Vance:

In essence, you had to get DOJ or three judge panel in DC to say, “Okay, you can make this change to your voting procedure. It’s not discriminatory.” Since 2013, that hasn’t been the case. And so in Brnovich, it’s actually two cases that are combined challenging some provisions in Arizona. And most recently last Friday, DOJ announced that it was challenging again under Section 2 a new law adopted in Georgia that is just full of restrictions on the use of absentee ballots.

Joyce Vance:

It also includes the notorious provision against providing voters who are waiting in line with food and water, and DOJ alleges that Georgia is engaging in intentional discrimination. That’s really important because what’s at issue in Brnovich is what standard courts will use in deciding whether new laws adopted by states violate Section 2 of the voting rights. The decision in that case, the standard that the Ninth Circuit Court of Appeals used was to decide whether there was a discriminatory impact that was grounded in historical jurisdiction in the state of Arizona, that’s called the results test.

Joyce Vance:

A lot of pundits believe the Supreme Court is going to make it significantly more difficult to bring Section 2 cases that they will require proof of racially discriminatory intent in adopting these laws. And so that the risk of being a little bit too detailed is why DOJ’s strategy in US v. Georgia is important because they seem to have jumped ahead, assume that the Supreme Court will take this restrictive position in Brnovich and brought on evidence that would purport to meet it. What do you think Dan?

Dan Goldman:

I think it’s fascinating, and I think it’s a reflection of an aggressive Department of Justice in an area that is really under attack across the country. The one thing it does not address is efforts in Georgia and elsewhere to make it a lot easier for elected officials to affect the outcome of an election in ways that don’t include the vote to overturn an election or make it easier to call out fraud and or assert fraud or find a small [inaudible] fraud and then just wipe out the election results.

Dan Goldman:

To my mind, that is the true danger of a lot of these election laws around the country. And for people who are concerned about democracy and concerned about the right to vote, the focus needs to be placed on those aspects of these voter restriction laws because there’s very little that anyone can do if the elected officials, the Republican legislatures can essentially place total control in Republican hands so that they can overturn an election if you want. That’s not addressed in the United States versus Georgia, I’m sure there are there will be another litigation around it.

Dan Goldman:

But for people who believe in our democracy believe that the right to vote is the right as the Lisa Monaco said in a memo a couple of weeks ago that the right to vote is the right from which all other rights flow, that that is an essential part of our democracy. And I have no doubt that the DOJ is looking at those. And I know that there are some other lawsuits. So that’s an area that we need to focus on.

Joyce Vance:

So those sorts of state provisions that take control of elections out of the hands of election officials and would let state legislatures for instance decide results should be overturned because of fraud. I agree with you Dan, that is the most disturbing feature of the landscape here. One of the problems DOJ will have to deal with is that if the senate does not pass the For the People Act down the John Lewis Voting Rights Act, DOJ may not have the right laws in place to challenge these clearly discriminatory acts. I guess we’ll have to stay tuned for that.

Dan Goldman:

Yes, we’ll definitely as our colleague Preet likes to say, we will have to stay tuned. We’re staying tuned for a lot coming up this week Joyce. We’ve got as we talked about The Trump Organization indictments potentially coming, significant Supreme Court cases. And one of the things that we learned and trying to prepare for today is every day, there’s a new story that comes out. So I just want to thank you for allowing me to join you on today’s podcast, The Insider Podcast.

Dan Goldman:

It’s truly a pleasure to talk shop with you. And I continue to be amazed that you are not only a master of chickens, but you are a jack of all trades when it comes to the law. So thanks for your wisdom, and thanks for having me.

Joyce Vance:

It’s always nice to get to talk to you Dan. I always learn a lot and I know our listeners have certainly enjoyed this. Preet has told both of us that while he’s on vacation, he started chomping at the bit to get back and talk about these issues and although this is all the time we have today for the insider, Preet will be back next Tuesday. I suspect we’ll be hearing a lot more about Trump world, perhaps about Rudy, and certainly about voting rights. So please send us your questions to letters@cafe.com, we’ll do our best to answer them. And Dan, thanks so much for being with us this week.

Dan Goldman:

Thank you Joyce.

Preet Bharara:

That’s it for this week. Cafe Insider is presented by Cafe Studios and The Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance, the Executive Producer is Tamara Sepper. The Senior Producer is Adam Waller, the Technical Director is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Chris Boylan and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider community.