• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the grand jury indictment of two entities within the Trump Organization and CFO Allen Weisselberg for an alleged 15-year tax fraud scheme, and the Pennsylvania Supreme Court’s decision to overturn Bill Cosby’s sexual assault conviction.

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; Nat Weiner – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

THE TRUMP ORGANIZATION

NY Penal Law §70.00 – Sentence of imprisonment for felony

NY Penal Law §155.40 – Grand larceny in the second degree

NY Penal Law §190.65 – Scheme to defraud in the first degree

The People of the State of New York v. The Trump Corporation et al., NY Supreme Court New York County, indictment, 7/1/21

“Trump appears to acknowledge tax schemes while questioning whether alleged violations are crimes,” WaPo, 7/3/21

“Allen Weisselberg’s Post-Indictment Strategic Considerations,” Just Security, 7/2/21

“Prosecutors allege a 15-year tax fraud scheme as the Trump Organization and CFO Allen Weisselberg are arraigned on multiple criminal charges,” WaPo, 7/1/21

“The Trump Organization Is Manhattan DA Cy Vance’s White Whale,” National Review, 7/1/21

Andrew Weissmann tweet, 7/3/21

BILL COSBY

Pennsylvania v. William Henry Cosby, PA Supreme Court, opinion, 6/30/21

“Bill Cosby’s Release From Prison, Explained,” NYT, 7/1/21

“There’s One Man to Blame for Bill Cosby’s Release,” NYT, 7/1/21

“Trump lawyer Bruce Castor plays a central role in Bill Cosby going free,” WaPo, 7/1/21

E. Jean Carroll tweet, 6/30/21

Preet Bharara:

From Café and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

It’s good to be back, Joyce.

Joyce Vance:

Well is it really good is a little bit of your heart left in New Orleans?

Preet Bharara:

A little bit. A little bit. It was really great.

Joyce Vance:

You picked a great week to take off.

Preet Bharara:

Well you know it’s funny, people kept saying, “Well, why are you going to New Orleans? It’s so hot. It’s so humid. Why would you go there in the summer?” It was about 15 degrees cooler for half the week in New Orleans, than in New York, than in the Pacific Northwest, than in New England. So, I’m smarter than I look.

Joyce Vance:

If you ever needed proof of climate change, that’s probably it because New Orleans is never cool in the summer.

Preet Bharara:

Yeah, but increasingly neither is the Northeast. But it was great, very warm, welcoming place. A lot of music, a lot of food. I wrote about it last week, a little travel library for CAFE Insiders. You have some additions to your family, am I correct?

Joyce Vance:

We do. We’ve got six brand new baby chickens. They are Silkies. They are adorable little balls of fluff and they’re driving me crazy.

Preet Bharara:

Did you name them?

Joyce Vance:

So, it’s really hard to tell them apart when they’re this small. We’re starting to look for traits. Four of them are buff, that’s sort of a tan color, and two of them are called blues, although they look white right now.

Preet Bharara:

I see. I don’t know anything about baby chicks.

Joyce Vance:

They’re pretty cute. I’m learning fast. These were actually hatched. These were eggs that we put under one of our hens and then a second one joined her, so they have two moms. We’re very progressive.

Preet Bharara:

One last note on what we did the last week. Some people know on Saturday night I took my older son to go see Springsteen on Broadway, which was phenomenal, moving, entertaining, funny. I mean, it was just incredible. My son, who plays jazz guitar and is a Springsteen fan because he has to be… No, not because he has to be. He is. He’s a natural Bruce Springsteen fan, said it may be one of the best things he’s ever seen in his life.

Joyce Vance:

Wow.

Preet Bharara:

And the other amazing thing about it is for people who are not from New York, nothing on Broadway is open. Regular shows, musicals, dramas, they’re not opening until after labor day, sometime in the middle of September. So the only show on Broadway right now is Bruce and it kind of seems to be fitting that he reopened Broadway.

Joyce Vance:

Well, I’m going to hit you up to help me get tickets the next time I’m up.

Preet Bharara:

Yeah, I mean he’s playing for a few months. It’s not cheap. It’s not cheap.

Joyce Vance:

Broadway never is but it is always oh do worth it.

Preet Bharara:

Yeah, it really was. So, while I was gone, something happened. I originally took a few hour pause in my vacation to read the Trump Organization and Allen Weisselberg indictment, just because I didn’t want to be too behind and I can’t help myself. I know you’ve talked about it a bit on television and people have been speculating about it, I’m a little confused about various aspects of it. So, I’m trying to think where should we begin with this indictment. And I guess among the questions that people have and that I have are, what does this mean for the organization? Is this the tip of the iceberg as some people have said? Or is it kind of the end because this is all they have? What are the consequences for the Trump Organization, writ large? Does this mean Weisselberg is definitely not cooperating? Does this Weisselberg may be compelled to cooperate? Where do you want to start?

Joyce Vance:

I feel like the answer to those questions, the important questions is mostly maybe, but here’s where I’d like to start.

Preet Bharara:

Oh, I want some definite answers, Joyce.

Joyce Vance:

Yeah, I think we all do, and I think one of the realities here is we may have to try to live with our impatience a bit. But let me just start by saying this, it is an obvious point but I think it’s getting walked past too quickly in a lot of cases, this is an indictment that includes the Trump Corporation, the only individual is Allen Weisselberg. It is not the indictment of Donald Trump or any of his children, and so we should focus on the indictment in that sense. I find it to be a strong and compelling indictment of Allen Weisselberg who is named in all 15 counts of the indictment. And so that’s my baseline, that’s where I start on this.

Preet Bharara:

Yeah, so let’s take it one step at a time. With respect to the case as made out, as plead in the indictment against Allen Weisselberg… And we’ll come back to the Trump Corporation and the payroll corporation in a moment, those are the two entities that were charged, I find it to be a very strong case. Whether people think it’s serious enough or substantial enough, we can talk about that too in a second. But for what is charged, to me it’s strong.

Preet Bharara:

The idea that it was confusing and unknowable and ambiguous what constitutes salary or payment for which every American has to pay taxes, unless you’re a multi billionaire and that’s a separate story because you’ve various means of getting out of that as has been reported. It’s a substantial amount. Is it a billion dollars? No. But it’s 900 some odd thousand dollars of taxes that this fairly wealthy person, Allen Weisselberg, was supposed to pay and didn’t pay. It’s over a period of years, so it’s not like one year they sort of made a mistake and there was an accounting error. And then a point that I think is understated a lot both in the media and actually in trials of these kinds of cases, is who is Allen Weisselberg?

Preet Bharara:

And one of the defenses you would expect in a tax case and you see it all the time is, “I didn’t know,” “I was confused,” “I was relying on other folks,” “I don’t really understand the tax law.” And by the way, Donald Trump made such a statement at the podium at a rally he had over the weekend.

Donald Trump:

And yet they go after good, hardworking people for not paying taxes on a company car… Company car. “You didn’t pay tax on the car,” or a company apartment. You used an apartment because you need an apartment because you have to travel too far where your house is, you didn’t pay tax. Or education for your grandchildren. I don’t even know, do you have to? Does anybody know the answer to that stuff?

Preet Bharara:

Allen Weisselberg is a sophisticated business person who is not only most recently the CFO, the Chief Financial Officer of the Trump Organization. He was the company’s accountant. He understands numbers, he understands finances and he certainly understands taxes. And then you have on top of all the that, you have allegations and the indictment that I’m sure are readily provable that the Trump Organization kept track of what Allen Weisselberg’s compensation was supposed to be. And even though they didn’t provide a W-2 or didn’t withhold taxes for things like tuition for his grandkids, rental of a car, rental of an apartment, but the Trump Organization considered those things to be, very clearly, salary. And if it’s a salary you have to pay taxes on it.

Preet Bharara:

So, on its face, strong case, doesn’t have a lot of defense. I mean, one of the things, I mean whatever you think about the defense is one is, mistake, which seems to be not really a strong defense here. Some argument that taxes were required to be paid. That seems like a loser. That he relied on outside folks. The indictment also makes clear that these other bits of salary and compensation were not conveyed to the accountant who did the tax returns. And then there’s this last point, selective prosecution. I mean in particular, there are spreadsheets kept by the Trump Organization that made clear that Allen Weisselberg was supposed to get some amount of compensation, and when some of that compensation came in the form of these quote, unquote, fringe benefits, like the apartment and the car, they adjusted his actual separate salary accordingly. So, they considered it to be compensation. What’s the defense here Joyce?

Joyce Vance:

I think we heard the defense from Trump during his weekend rallies. An interesting thing that he’s out talking about the case, and we take that up later, but it’s interesting that they skipped to a real non-defense, right? The non defense says, “Oh, who even knows how the tax code works?” Well this is the ex-president who in 2016 tweeted, “You should elect me because I know more about the tax code than anyone that God has ever put on this earth.”

Donald Trump:

I know more formulas, I know more about tax abatements, I know more about taxes than any human being that God ever created.

Preet Bharara:

And wait, Joyce, can we pause on that for a second? Explain to the folks if there ends up being a charge against Trump along these lines, that statement is admissible in court, is it not?

Joyce Vance:

I believe that that would be an admission against interest, so it would come in as an exception to the hearsay rule, for those who are playing along with the rules of evidence at home.

Preet Bharara:

But does it matter so much… This is interesting for us, but it doesn’t matter so much with respect to the case against Allen Weisselberg, right?

Joyce Vance:

I guess what the thrust of a defense for Weisselberg is selective prosecution. And that’s this narrative that the lawyers for Trump were running in advance of the indictment coming down. They were obviously trying to soften the blow saying, “Oh this is just a fringe benefit case.” And the more that I read the indictment, I realized yes, this is in some ways a fringe benefits case but it is a fringe benefits plus case. There is a lot going on here. 15 years, two sets of books, lots of money involved and flagrant violations of the rules.

Joyce Vance:

And I’m reminded when I moved to Alabama in the late 1980s, there had been a couple of notorious prosecutions, tax prosecutions of restaurants for keeping two sets of books. One of them was one of my favorite barbecue places. And the reason the state did that, something that it had not previously done was to create some deterrence. You don’t want this stuff to get out of hand and at some point you have to take a stand when you bump into really flagrant examples of this sort of fraud, you got to go ahead and prosecute. This is a flagrant example. It’s not selective prosecution.

Preet Bharara:

And there are other little tidbits as well, that’ve gotten lost, but if you read the document, you see that among other tax avoidance parts of the scheme, Allen Weisselberg basically misled tax authorities with respect to his residence in New York City. And if you’re lucky enough to live and work in New York City, you pay separate local tax, not just state and federal. And that amounted to a considerable amount over time as well. So he did it for a long time, he should’ve known better. There’s really not much of a defense there.

Preet Bharara:

So, I think it’s a strong case. Now there’s some confusing aspects to it. Let me go through a couple. One, is with respect to the tax fraud scheme, much of the tax avoidance was with respect to federal taxes. Now, if you willfully avoid paying your taxes to the federal government, usually that’s something that’s investigated by the IRS criminal side, along with the relevant US attorney’s office, which would be my old office SDNY… And people have made this point, they don’t seem to be anywhere in the case here. Why would that be? Andy McCarthy, a love of SDNY, who now writes for the National Review online, says correctly, that historically… This was true when I was leading the office, that historically, if there was a federal case to be made, we would make it at SDNY and not just cede that to the local DAs office. Why is SDNY not prosecuting something? Do you think the IRS looked at this and doesn’t care? How do you explain their absence?

Joyce Vance:

It’s a very interesting question. So, I think that there are possibilities here. One is, as you say, that the IRS looked at this and said that they weren’t interested. It seems to me that that would be inconsistent with the sorts of cases that are routinely prosecuted. Every April there’s a deluge of cases involving prominent people in local communities across the country who US attorneys indict to create some level of deterrence. This case would’ve certainly qualified for that. So, perhaps there’s some speculation that Bill Barr would’ve made it impossible for DOJ, for the tax division to get Trump taxes or any of the underlying documentation that Cy Vance had.

Joyce Vance:

And so it’s possible that this indictment could’ve triggered some sort of investigation at DOJ, we don’t know that for certain. But I have a question for you, is it possible that as a part of Weisselberg testifying in grand jury for which he was, during the New York investigation, he testified in grand jury. I can’t remember right now if it was SDNY or part of the Mueller investigation but he was given some form of limited immunity to testify. Is it possible that that immunity deal means that there can’t be federal prosecution on these charges?

Preet Bharara:

I think it’s possible. I just don’t know all the details, so I don’t know enough that’s been reported. I don’t know that there’s been any formal representation in a court that I’m aware of but I could’ve missed it. So that’s possible. It’s also possible that this wasn’t an SDNY investigation, and they didn’t look at this material and maybe they’ll look at it now. I mean, it’s also possible, people may not like this, not withstanding what we’ve said about the seriousness of the tax avoidance scheme that went on for years and years and years, that it’s not the kind of case that they might’ve otherwise brought. And it might be in the minds of some, something to be settled civilly.

Preet Bharara:

If you want to put the significance of this case and the scale of this case on the spectrum, of cases brought by SDNY or for that matter even the Manhattan District Attorney’s office, it is not the case of the century. And I don’t know if that offends people who are looking for a particular outcome, but it’s not. And that goes right to the question of whether or not Weisselberg will flip and if he does flip, does he have substantial assistance that he can give to prosecutors with respect to someone else, namely Donald Trump?

Preet Bharara:

So, we have a question from a listener who Tweeted, this is gwo_design, “Can someone explain to me why Weisselberg wouldn’t flip? Are the chances of conviction that low or are prospects of jail time that slim? He’s an older guy who’ve I got to imagine has kids and grandkids he’d rather not see from inside a jail cell.”

Preet Bharara:

So, I’ve answered some of that. The key factor there is how much jail time are you facing? Now, I’ve never been a local DA but in looking at the statutes and looking at the case law and talking to people who have been, it’s a first time, non-violent felony, he’s a 73 year old man. It’s a bunch of money but there are much, much more massive cases… I’ve overseen hundreds and hundreds and hundreds of cases that were more massive than this. And the best bet depending on who the judge is and how they’d apply their discretion, you’re looking at a low single year prison sentence, if convicted at trial. And lower if there’s a guilty plea and I don’t know the particular psychology of Allen Weisselberg, but to me, not clear that he flips, what’s your analysis of likelihood of flipping?

Joyce Vance:

So, I agree with you that the likely sentence is low single digits. I think some people make a decision and you see this sometimes in white collar cases, that they can withstand a relatively short sentence, a year or an 18 month kind of sentence. Maybe Weisselberg thinks he won’t be convicted, although I suspect that that would evolve if that was his point of view, that that would evolve after reading the level of detail contained in the indictment. Perhaps he thinks that there are things that are worse than being convicted. And I’m sure folks can speculate about that but maybe there’s some sort of feeling of certainly that his family will be financially provided for if he doesn’t flip, that his kid who works with Trump will be secure if he doesn’t flip and that that could possible change.

Joyce Vance:

I think honestly with Weisselberg, the longer he sits and it’s September before he comes back to court for his next hearing, trial probably is early next year, as the pressure mounts and he sees the consequences, he may change his calculus here. But I don’t have a strong feeling, Preet, one way or the other about whether he’ll flip. And if so, whether his testimony would be valuable.

Preet Bharara:

Well that’s a second question that’s incredibly important and a little bit lost in all this debate. Yeah, I’m not optimistic about his cooperating. The analysis could’ve already been done by him and his lawyers. We know that the DAs office was meeting with the lawyers about the question of whether or not some Trump entity could be indicted. I’m willing to bet a lot of money that they presented the strength of this evidence to him because they want him to flip. They didn’t surprise him. Probably nothing in the indictment comes as a surprise, so they have known the strength of the case. He knows himself, as people like to say, his own guilty heart whether he’s guilty or not. And I presume he knows that he’s guilty and the question of whether or not he can get out of the jam is a separate one. And he nonetheless decided, “I’m not going to.”

Preet Bharara:

Now some people do flip after they see concrete charges in black and white in a document and court dates set and it can be jarring to show up in court and have to put on the record a plea of not guilty. But I think that he’s a sophisticated guy and smarter than that and has at this point, without more… And he could change his mind, happens all the time. But also all the time it happens that they don’t change their mind. So, I’m not that optimistic about Weisselberg flipping.

Joyce Vance:

I think it’s worth saying this is somebody who has been aligned with Trump’s for what?

Preet Bharara:

Decades.

Joyce Vance:

Half of a century, right? 50 years. The fact that he had a stomach for what was apparently going on inside of that organization for that long, I think leans towards him being hesitant to cooperate. But I have had defendants, and I’m curious if you’ve had this experience, you strike a jury and a defendant who had resolutely said that they would not plead guilty, the defendant looks the jurors in the eye and suddenly plea negotiations are underway. So, I think we should never say that it’s impossible that he’ll flip. An interesting question would be at what stage would that happen? Maybe pretty late in the game if it does.

Preet Bharara:

Yeah. I mean I guess, my only point is this. I see people making predictions and commenting, like you and I do, and I respect everyone who takes the time to try to educate the public, but I really don’t understand the people who get on television, either since the indictment was filed or before, and predict with great confidence, “Weisselberg’s going to flip,” “Of course he’s going to flip,” “Why wouldn’t he flip?” That just to me bespeaks a lack of experience in doing cases, it runs the gamut. There are some people who flip immediately, there are some people who never flip, in part out of loyalty, and also because people sometimes have their own code of what they think is proper or not. And some people don’t want to be a quote, unquote, snitch. And some people will never stand up in a court of law and admit to the world, and more importantly to their friends and their family that they committed a crime. They will just never do it.

Preet Bharara:

Somebody asked me recently, “What are the factors that cause a person to flip or not?” And I said, “Well, one of them is how much jail time and what sort of the tolerance for jail and prison is.” The other is, and you see this all the time, if the person who is being pressed to flip gets wind of the person against whom they’re supposed to testify is screwing them, or being disloyal to them in return, sometimes that’s the key. And so far, Trump has been very nice publicly about Allen Weisselberg.

Preet Bharara:

Now there’s that scene in Goodfellas, where the Ray Liotta character, Henry Hill, he decides to flip when? When he gets told by the De Niro character that he’s got to do a job down in Florida, it becomes very clear to him that he’s going to get whacked, that he’s never coming back from Florida. So, I’m not saying that that kind of thing is happening here. But one is a prospect of jail time, which doesn’t seem to be that significant here potentially. And second, if you think that the other person is screwing you, you want to maybe do it first, and I don’t see that that’s happening here either.

Joyce Vance:

It’s interesting though because Trump is never loyal to anyone and you got to wonder, is Weisselberg in a different category? Does Trump’s loyalty actually run strongly that direction or will he at some point maybe break with Weisselberg if he thinks it’s necessary to protect himself? But look, I agree with you. It’s just unknowable. I am concerned that because Weisselberg did not flip when he was approached pre-indictment and given his sophistication, and access to good lawyers and he has good lawyers, that he may be one of those defendants who ultimately just is not going to flip. And so that leads to really your next question, what happens if he doesn’t flip? Is this the end of the road for Cy Vance? Or are there other witnesses who could make this case go further upstream at the Trump Organization?

Preet Bharara:

Even before we get to that question, you raised an important point a moment ago. One was, whether he flips. The second is, and this keeps getting lost, what does he have? What does he have? And I don’t want to be negative and reign on certain peoples parades who want a particular outcome and people should be careful about that, I don’t know for a fact, do you, that he has information that is so substantial and so serious and so corroborated and so fool-proof that beyond this tax scheme, he can nail Donald Trump, even if he does flip? And I don’t know that the district attorney’s office knows that either given what we’ve seen so far. What do you make of that statement?

Joyce Vance:

I have that same concern. There’s a lot of sort of apocrypha around this. Trump-

Preet Bharara:

That’s a great… Is that a word? The noun form of apocryphal?

Joyce Vance:

It is a word. It’s sort of the books of the Bible that aren’t…

Preet Bharara:

Wait, I’m going to write that down, hold on. That’s a great word. Okay, go ahead.

Joyce Vance:

Now you’re going to look it up and I’m going to be wrong. If it’s not a word, you heard it here first, but this suggestion from Trump’s deposition testimony and civil cases and just his random comments that he worked very closely with Weisselberg, people who said that Trump knew about how every dollar was spent, but we don’t know how that really plays out and what Weisselberg’s testimony, if he was completely truthful about their relationship, would be. Perhaps he just got strong signals from Trump that he wanted this sort of loose and fast with the books, and so this went on in this case. Who knows if Weisselberg can talk about anything else. There’s speculation obviously about bank fraud, insurance fraud, maybe even that he knew something about inauguration fraud, but it is just speculate. It is just speculation at this point.

Preet Bharara:

So you asked the question, what are the consequences if it goes no further? Let’s pause on that for a moment. And I think this is something else that various folks are not paying proper attention to. We keep talking about the Trump Organization and everyone uses that term because it’s a shorthand for an umbrella of companies. Many, many, many companies, corporate entities that do the business of that family, including real estate holdings and golf courses and hotels and other businesses as well. The Trump Organization is not a thing to be indicted, and the indictment makes that clear. It talks about that being an umbrella term.

Preet Bharara:

There were two particular entities that were indicted, one, which presumably is a small outfit, the payroll entity. That obviously is implicated because we’re talking about a scheme relating to wages and the failure to pay taxes on those wages. But then the other is the Trump Corporation. Not clear from the indictment how large that is but from what you can gather reading the document, that happens to be a standalone corporate entity that employs various high level people including Allen Weisselberg and other supervisors and managers as a group. And then those supervisors and managers are also involved in other entities to run the various businesses. So, when people say, “Well, the Trump Organization was indicted,” that’s not true. And people say, “Well, it’s a big deal if Trump Corporation was indicted.” I don’t know how big a deal that is because in the ordinary case, a company can be affected with an indictment if they have business relationships with banks, banking relationships, if they have contracts with the municipalities, if they’re doing contract work with the government. All of those things can be affected and can be damaged very seriously by an indictment and by a guilty plea or by a conviction. I don’t know that it matters so much.

Preet Bharara:

Even if the Trump Corporation is that entity, that limited entity is put out of business. I don’t know that that has an impact on the overall Trump Organization at all. And I keep hearing people suggest there’s massive doom for this conglomerate of businesses that has the Trump name on it. That’s not clear to me at all. Am I getting this wrong?

Joyce Vance:

No, I think that you’re correct. And I mean this sort of a structure is not on it’s face an indicia of fraud. There are reasons that you might have for instance the payroll corporation separate. It’s not an office of its own with staff. It’s more of an on paper sort of a transactional entity that does the work. And so people who’ve said, “Well, all of the loans will be called,” or, “They’ll lose their liquor licenses at the golf course.” Those in many cases will not be the entities that are implicated in this indictment. We don’t know for certain but my sense is that you’re right in that this will not have this sort of domino effect on Trump’s financial status.

Preet Bharara:

And that’s why, then going to the other question that we’ve avoided addressing so far, is where are we? Are we at the beginning, or are we at the middle or are we at the end? And there’s a lot of debate and conflicting opinions on this, including among people who I deeply respect. So, I’ll give you what I think you’ve heard from other folks including Dan Goldman and some other folks, and it could be the predilection of us at SDNY… I oversaw a lot of cases; many, many cases and many, many cases involving the charging of a corporate entity, or the entry of a different prosecution agreement with an entity, in cases involving billions and billions of dollars, not $100,000. And in my experience, I can’t think of a case in which we charged the corporate entity and then later charged some individuals or expanded the scope of the prosecution. Generally speaking, the charge of the corporate entity indicated a wrap up of the case.

Preet Bharara:

Now I know others like Andrew Weissman have pointed to particular cases where the corporate charge doesn’t signal the end of the case, won by our colleague Barb McQuade in the Eastern District of Michigan involving Volkswagen. And I know that there are other cases like this. And maybe I’m biased because in our experience it was always the case that the corporate charge came at the end. I’m a little bit more pessimistic that there’s more to come but this is an unusual case. It involves an advisor to the former President of the United States and a case that maybe involves the President of the United States himself, and maybe the normal rules and normal predictions don’t obtain here. But I am with the other folks from my old office who think maybe this is all there is. What say you?

Joyce Vance:

Strategically there are reasons that you wouldn’t want to indict the corporation first. For my money if you were going to do that you would indict the individual defendants along with the corporation or the corporation would be sort of your last gasp if you could not reach individuals. So, I tend to agree with you. Sometimes when you start to write a story, I guess you don’t know if it’s going to be a short story or if it’s going to be a long novel. And that’s part of the issue here. We know that Cy Vance is sitting on a lot of documents, the tax documents. If those documents alone made some sort of case against Trump, would he have necessarily indicted right now? I think one possibility here is that this limited case has been brought against Weisselberg to see if he can be pushed to flip, right? That obviously you’d like to have the CFO as a witness if you’re going to go against the people who are above him in management at the corporation.

Joyce Vance:

So, one possibility I suppose is that this is a carve out to push Weisselberg. And then the question is, do they have a case without Weisselberg? Are they willing to indict even if he won’t cooperate? They’d like him but he’s not essential or are they really stuck? Without Weisselberg, do they have nothing else? And there are people who believe that the documents in and of themselves make the case. There are people who focused on the fact that there is an unnamed co-conspirator who appears in this indictment. But it seems to me, having not seen the tax documents that the New York Attorney General and the Manhattan DA have that I’m going to have to wait and see.

Preet Bharara:

Look, wait and see. I guess all I’m saying is people don’t really know, it’s educated speculation on the part of people who have been in this business. I do think some things are being missed. I do think some things are being conflated. And the other warning I would issue and hopefully nobody takes offense at this is for a lot of people there is a feeling that Donald Trump is a criminal and has gotten away with crimes for a long time and that may be so, but when you’re thinking about how this is playing out, don’t let your hope and desire, if you have it, that Donald Trump gets convicted of something and finally is held accountable after doing so many other things, that are not even within the scope of what the DA is looking at. Don’t let your hope that something happens to him cloud your judgment with respect to what is going on.

Preet Bharara:

So, people like you and me and Dan Goldman and others, when we, using what we hope is clear eyed analysis, based on actual experience, think that something is not going to materialize, we’re saying those things in good faith because we are not outcome oriented. And I try as hard as I can to make sure… I know you do too, that’s why we’re co-hosts together, when you’re analyzing the case and you’re looking at the tea leaves, you’re not trying to dress it up to give hope to people that some final result or more serious consequence is going to befall Trump or the Organization. You’re looking at what you see with some amount of dispassionate detachment. And I think that’s the best service that we can provide. Not by saying at every twist and turn, “This means that Weisselberg is going to flip,” “This means they have a mountain of evidence,” “This means he’s going to be indicted right away.” I don’t think that’s the service that we provide.

Joyce Vance:

Trump has done a lot of damage to the rule of law in this country. This is a point where we can push back in a subtle way. Yes, people would like to see accountability for his misconduct. A lot of people, their faith in our criminal justice system is stretched thin maybe to the point of breaking by the failure for there to be accountability. But we cannot become people who want to lock someone up because we don’t like other conduct that they’ve engaged in. If there are charges against Trump at some point and if there’s admissible evidence that proves his guilt beyond a reasonable doubt, then the system will run its course. But we have to be, as you say, not result oriented. We have to be objective observers of the evidence and the process in one sense, so we don’t have false expectations about where this case might lead, but also because we’re at such a critical juncture in this country that it is important for us not to become those slippery slope folks who want to see the former President go to prison, so we’re willing to cry for blood as opposed to look at the evidence and the specific crimes.

Preet Bharara:

Very well put. So, that’s a good segue Joyce, to another case that has made people very upset where the issue of what is the right consequence and what is the right amount of accountability versus what the law requires, and there’s a hot debate about this. And that is a case of Bill Cosby, who’s convicted a few years ago for a sex crime against a woman, sentenced to I think 10 years in prison, served just a small portion of that sentence and then sort of out of the blue, although people who are following the case must’ve known that this case was pending in the Pennsylvania Supreme Court by a pretty lopsided vote, overturned the conviction because of something that went on between Bill Cosby and the original DA on the case who is interestingly a gentleman by the name of Bruce Castor, who people might remember was one of the lawyers that Trump got with respect to his second impeachment trial. And there’s a lot of confusion about what the ruling is, whether it’s right, whether it’s not right, and how this could happen?  You want to take a shot Joyce?

Joyce Vance:

So, I have to say at first when I read the opinion, the first thing that jumped out at me was that this decision does not exonerate Bill Cosby. Bill Cosby assaulted the victim in this case, the jury found that he was guilty and this decision that releases him is on a legal technicality. It does not operate on the fact. So, we have to say that, right?

Preet Bharara:

Yes. In no way do they say there was insufficient evidence. Where they say that he’s innocent, that a reasonable jury could not have found him guilty, and yet they overturned the conviction.

Joyce Vance:

They say that… And this is the technicality, they say that when an unconditional charging decision is made, they say that Castor made a decision not just that he would not charge Cosby but that Cosby would never be charged. They say when that decision is made publicly and with the intent to induce action and reliance by the defendant and when the defendant relies on that decision to his detriment, that denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was forgone for more than a decade. So, the notion that Cosby believed he would not be prosecuted and that he went and testified in a civil deposition brought by the victim, thinking that he had no fifth amendment right that he could assert, right? If he was still under the risk of criminal indictment, he could’ve declined to testify because of fear he might incriminate himself, but with that gone he testified. Some of that testimony was used in his criminal trial and so the court here concludes, “Mm, we’ve got to set him free.”

Preet Bharara:

Yeah. So look, from Bruce Castor’s perspective, and he testified earlier at the trial because obviously at the earlier phase before there was an appeal and before there was a conviction, Bill Cosby and his lawyers tried to get the case dismissed on this very ground. What Bruce Castor says is, “Way back in 2005, when the case came to my attention, I didn’t think there was enough evidence to prove the case beyond a reasonable doubt.” Now I don’t know if that’s true, I don’t if that was a good judgment-

Joyce Vance:

Can I just stop you right there because this troubles me so much. Not only do we know in hindsight that Castor is wrong about that because somebody obtained a conviction 10 years down the road-

Preet Bharara:

Well, but they obtained the conviction in part, on the basis of Bill Cosby’s incriminating statements that were a product of his believing that he had an agreement not to be prosecuted. So, it’s a little of bootstrapping, no?

Joyce Vance:

That’s true and I will acknowledge that weakness in what I am about to say, but nonetheless, Castor’s decision when he talked about it, he based it on the fact that the victim didn’t come forward immediately. I understand that part of that concern involves the fact that he didn’t have forensic evidence but this just seems to me to maybe indicate that we need to have more women district attorneys. That the notion that if a woman doesn’t come forward immediately after she goes through this traumatic experience of being assaulted, especially by someone that she knows, that that would be a driving concern. I find that to be super troubling.

Preet Bharara:

I totally agree with that and I think one of the consequences of the Me Too Movement is I think prosecutors around the country, including most recently in this case, have re-examined that analysis, have re-examined the cost, benefit analysis. And I think to your point, do a better job of discounting that factor as a reason not to proceed in the time since the first allegation was made.

Joyce Vance:

Another interesting thing here is that they just assumed that with the decision that this one particular assault wouldn’t be charged, that Cosby had no other concerns. And I’m curious, if you had been his defense lawyer, would you have let him testify in that civil deposition or would you have argued that there was still a fifth amendment right? Or a potential one?

Preet Bharara:

That is a great question because just so people understand, there’s two things that Castor did, right? And they’re distinct from each other and they overlap, but they’re distinct. One, is the decision not to prosecute Cosby and people make decisions all the time to bring cases and sometimes not to bring cases and maybe that was a bad decision, maybe it was a bad faith decision. Maybe it was a bad decision made in good faith, we don’t know. The thing that caused all the hiccups in this case though was not the decision not to proceed. That wouldn’t have precluded the later case, that wouldn’t have caused an overturning of the conviction.

Preet Bharara:

The thing that has caused the problem is that even though it is not written down, Castor says that there was an agreement and an understanding and a meeting of the minds that Cosby wouldn’t be prosecuted. That there was an agreement not to prosecute him, not just that they were declining. That is a very rare thing for prosecutors to do because Hope always springs eternal with respect to a defendant, that maybe evidence will come forward later, maybe there’ll be a recording, maybe there’ll be other witnesses who can testify about the conduct in the case, and so you don’t do it.

Preet Bharara:

Your question is a good one and then I have one for you because part of the debate here is whether or not there was an agreement, an immunity agreement that needs to be given the force of law and because it wasn’t written down and because generally speaking you get immunity orders from the court, the trial court judge in this case and the people who are on the side of the victim in this case say there was no agreement, so the conviction can’t be overturned. Bruce Castor says he made the agreement and just give his point of view on this because even though he didn’t think there was enough proof to prove the case beyond a reasonable doubt in a criminal court, there was an ongoing and parallel civil case by the same victim against Bill Cosby and according to Bruce Castor, to give her a little bit of an opportunity to get justice in this other form, not criminal justice but civil justice, he wanted Bill Cosby not to have the fifth amendment argument that would’ve allowed him not to testify. And so he testified and incriminated himself fairly substantially, including among other things, revealing and admitting that he had procured Quaaludes to give to women with whom he wanted to have sex. That’s not a small admission.

Joyce Vance:

That’s the most damaging part I think of his testimony and the deposition.

Preet Bharara:

That’s very substantial, but the weird thing that you pointed out and you noticed I’m not answering your question-

Joyce Vance:

No you’re not.

Preet Bharara:

So to answer the question, is given that the immunity agreement wasn’t written, wasn’t signed, didn’t take the formal form that often it does. Was it malpractice for his lawyers to allow Bill Cosby to go and make those admissions? It may have been. It’s a little bit of an odd decision. But let me turn the decision back to you, would you have let your client testify?

Joyce Vance:

I suppose it depends on how upfront my client had been with me about his conduct. If I knew that there were other possible victims out there who might come forward on this news and a range of other prosecutions, I would’ve never let him testify in that civil setting. But there’s an interesting point here that was persuasive for the court of common pleas, and less so with the Supreme Court when they ruled in Cosby’s favor, and that is that Cosby had cooperated, had made statements from the moment he was first confronted by law enforcement with this situation. He always denied it, he always spoke about it. I don’t think he made the comment about the Quaaludes until the deposition.

Joyce Vance:

So, that may well be the sticking point, but even with his release he’s now made that point. “I’ve always denied this.” I think the Court of Common Pleas here, the trial court might have had the better piece of this argument than the Supreme Court had and even beyond that, the notion that this would lead to Cosby being released, as to perhaps the case being remanded for a new trial with the government unable to use the evidence that it obtained in the deposition, boy, that’s really troubling here.

Preet Bharara:

Yeah, and two of the seven justices of the Pennsylvania Supreme Court said exactly that. Said, “Look, we understand essentially that there’s this other evidence that was maybe unfairly procured because of this understanding of an immunity agreement that may have caused Bill Cosby to be convicted. So you know what? Let’s have a do over and present all the evidence you can, excluding the stuff that he said in the deposition that only went forward because of this agreement with Bruce Castor, such as it is.” And I agree with you, that seems to be the better of the argument. And then by the way, we would have an answer to the question of whether or not Cosby was convictable without that extra evidence.

Joyce Vance:

Absolutely. So, I’ve been asked a question and I’m curious what your response to this question is, is this just a one off situation? Does this case have any presidential value or does it indicate anything for other cases? Or should we just take this as limited to the unusual facts in the Cosby prosecution?

Preet Bharara:

I think the latter. I think it’s very unusual that you had a case like this where there was a declination, you walked away, you had an agreement but the form of the agreement and the formality of the agreement is weird. And then a subsequent prosecutor decides to go ahead and prosecute, which is very unusual, and then that person is convicted. And then this argument is made, like it was made to the Pennsylvania Supreme Court. I just think the combination of circumstances and facts, obviously anything is repeatable and can happen again, but it really unusual, I don’t think has any broad implications for how these cases proceed in general.

Preet Bharara:

But look, I think it will cause in the minds of prosecutors to think about the reasons why they walk away from a case like this, what the factors are they should consider, how much risk they want to undertake… I write about this in my book a little bit. And then also, the circumstances under which you say you have immunity from prosecution, “We made an agreement that we’re not going to go forward,” and prosecutors never like to do that. Do you give Castor any bit of credit that he, maybe it’s the wrong decision, but he in good faith wanted to help the victim get a civil judgment where that’s not the role of the prosecutor at all?

Joyce Vance:

There are a lot of squirly features of this decision. As you say, that’s just not his lane. Does this look a little bit like there was a shift from the possibility of criminal liability in a criminal conviction to a civil case where Cosby paid, I think, something around $3,500,000 and the matter was essentially over for him? Maybe that’s troubling, maybe that’s something that was done in good faith, but I bet you the victim would’ve preferred to have seen a criminal conviction. The way the so called immunity happened is also squirly. This notion that it happened in a press release and the victim didn’t even know that it was happening until a reporter showed her the press release.

Preet Bharara:

It’s totally weird. It is totally weird. That’s why again, going back to your earlier question, does it have much presidential value? I don’t think so because you don’t see this type of thing.

Joyce Vance:

I agree. This is just… It’s squirly, it’s unusual. We don’t know if Castor acted in good faith or not. Legally, I don’t see any presidential value. There is a problem here though and E. Jean Carroll, the woman who is involved in a defamation suit with Donald Trump, to come full circle here, she Tweeted at what the issue is what I think gets to the real problem. She said, “This is why women don’t come forward.” And so I think our message to women has to be, this is a one off situation, continue to come forward, people will believe you, you’re entitled to have your story heard, don’t hold back, don’t stop because of this.

Preet Bharara:

Look, two difficult cases, hard to know what the future holds in the Trump Organization case. We’ll be following it every week from now until its culmination. It’s good to be back, Joyce. Talk next week.

Joyce Vance:

Glad to have you back, Preet, and please send your questions into us. We’ll do our best to answer them.

Preet Bharara:

That’s at letters@cafe.com.

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.