Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara. Well, folks, here we are. Former President Donald Trump appears on the brink of being indicted by a Manhattan grand jury, to discuss the likely charges and what comes next. I’m joined by three of my close friends, fellow legal experts and CAFE colleagues. They’re my CAFE Insider co-host, Joyce Vance, who served as the US attorney for the Northern District of Alabama, Elie Honig, the former head of organized crime at SDNY and host of CAFE’s Up Against the Mob podcast. And Barb McQuade, who served as the US attorney for the Eastern District of Michigan and writes notes from Barb to the CAFE community. Welcome folks.

We are recording this in the 1:00 PM Eastern Time hour on Wednesday, March 22nd. And at the beginning of the week there was a lot of speculation that we would have an indictment from the Manhattan DA, Alvin Bragg, against Donald Trump in connection with the hush money payments to Stormy Daniels by now. And we understood that the grand jury was going to be meeting this afternoon perhaps to vote on a proposed indictment from the DA’s office. And just as we were entering our respective podcast studios such as as they are, we got some reporting confirmed by more than one outlet that the grand jury has been called off today. My first question is, does anybody have any conjecture as to why that is so? And then I want to ask quickly for everybody to opine on whether or not you are still positive there will be an indictment as we have been led to believe there would be against Donald Trump. Let me start with Joyce.

Joyce Vance:

So I think it’s important to keep the context in mind. We know that leaks are very, very unlikely to come from the Manhattan DA’s office because grand jury proceedings, including schedules are secret. That means that the likely source of this news is a witness or perhaps even a grand juror, although that’s certainly not something anyone would hope would be the case here. So I say that to say it’s very difficult to know what this means. Is there a new witness that needs to come in? Are prosecutors considering additional defendants or additional charges or does this mean that there’s some fatal flaw that they now perceive in their case so that it may not-

Preet Bharara:

So you’re going to leave every option open. You’re not going to make-

Joyce Vance:

Absolutely.

Preet Bharara:

… any conclusion.

Joyce Vance:

I’m in every option kind of girl on this one.

Preet Bharara:

Okay, Barb, can you take a position on this?

Barb McQuade:

I’ll speculate. I’m willing to speculate. I’ve had cases where you thought you were all ready to go, you plan to indict the case and things come up. It may be a supervisor said, “I want to review it one more time. I want to research the elements one more time.” At DOJ, we have that much larger chain of command that reaches to Washington that could slow things down, here in New York, maybe less so. A witness issue, sometimes it’s a quorum issue. They weren’t going to have enough members of the grand jury to indict. You have to have a quorum before they can do business and maybe that’s the case. So there are all kinds of things short of the merits of the case itself that can cause a delay like this. The only reason we’re expecting this is because it’s been so public. Ordinarily all of this stuff is done offstage, nobody has any idea when it’s coming.

It’s just one day it appears and it’s filed and nobody saw any of this stuff of maybe it’s today, maybe it’s the next day. I think there are a lot of ordinary business reasons that can cause a delay and maybe that they don’t want to have them in court tomorrow because there’s some other big case that’s happening in court tomorrow and the security has said, “Do you mind pushing this off to next…” I mean, there’s just so many different reasons. But I do still think an indictment’s coming. I think that based on the fact that they did not call Michael Cohen in rebuttal of Robert Costello on Monday, suggest to me that he didn’t do significant damage to the prosecutor’s case.

Preet Bharara:

We’re going to come back to him in a moment. I want to go through with the group. Elie, if you have something to add on the fact of the cancellation of the grand jury, feel free. But before you do that, I want everyone further what Barb just said, I know we’re just speculating, what do you think the likelihood is that we’ll see some sort of indictment from the Manhattan DA’s office against Trump. I’ll go first, I’m going to say 93.4%. Elie?

Elie Honig:

I’m going to take the over but not by… It’s funny because I was thinking about a number before you even gave one and I was thinking, I was going to say high 90s. So I guess that comes in above 93, not a hundred though, importantly. And just so people understand, there’s two ways that that can happen. There’s really two big decision points here. First, Alvin Bragg has to decide he wants to seek an indictment. The way it works is you put your evidence in and sometimes you abandon a case without seeking an indictment. That’s really almost entirely up to the prosecutor in his discretion.

It’s hard for me to foresee a scenario where Alvin would sort of lead people along this far and then bail out. And then the second possibility, very remote is that the grand jury votes what we call a no bill, meaning they don’t even vote by the 12 grand jurors, the majority requirement by the low probable cause standard. That happens very, very rarely. I mean, especially in the federal system, unless you don’t really want an indictment, in which case you can sort of signal that to the grand jury. But yeah, I’m high 90s right now.

Preet Bharara:

Well, that’s the allegation that some people make in cop shooting cases where the DA reluctantly goes to the grand jury says, “We presented the evidence dispassionately and there’s no true bill. And [inaudible 00:05:22] we’ve done our duty and we’re done.” I don’t get the sense here, just looking at this from the outside, that there’s any gamesmanship here about looking like you’re seeking an indictment, it’s not a good look for the Manhattan DA. It’s not a good look for anybody. So I don’t think that’s what’s going on. I want to ask one more thing before we get to the substance of what will likely come to pass, but first I need Barb and Joyce to give their percentages.

Joyce Vance:

What do you think, Barb?

Barb McQuade:

Yeah, it’s hard to disagree with in the 90s. Preet’s number was 93.4?

Preet Bharara:

93.4.

Barb McQuade:

Yeah, I’ll go 95 just to go ever slightly above. I think it would take an awful lot at this point to pull it back.

Joyce Vance:

I want to know what the 0.4 is from, Preet.

Preet Bharara:

It’s just to be difficult.

Elie Honig:

It’s an algorithm. It’s complicated.

Joyce Vance:

I think something that you guys have just touched on that I’ve really wondered about here. I know it doesn’t seem consistent with how hard this office has charged, but it is worth pointing out that sometimes in a tough case where prosecutors come to realize that there are important reasons to prosecute but also may be a serious impediment to the case, it can be easier to let the grand jury make that call. But like y’all, I don’t think that that’s going on here. I think the odds that we’ll see an indictment are maybe even a little bit higher. I’d be willing to go as high as 97 or 98%.

Preet Bharara:

I want to take something off the table or ask you if we should take it off the table. We have been led to believe based on lots of considerations, including leaks, and who has gone into the grand jury? Michael Cohen, Stormy Daniels has met with prosecutors in the DA’s office. So we have been led to believe, and it is my belief that if there’s an indictment against Donald Trump in this matter, it will relate to the hush money payments, the Stormy Daniels and also Ms. McDougal.

I’ve heard some people in the last couple of days, including somebody, I can’t remember who it was, on television today, suggest we may be in for a surprise and we may not only get charges relating to the hush money payment, but also maybe relating to the undervaluing and overvaluing of assets that I have understood to have been part of the investigation that Alvin Bragg also oversaw that kind of stalled and caused Mark Pomerantz and Carey Dunne to resign a year ago with a lot of fanfare. That’s a separate investigation. Does anybody have a view on whether or not you think we could actually see an indictment with respect to that other investigation that we have been led to believe was stalled?

Elie Honig:

Wow. I’ll take a crack at that is that would… Look, of course, we certainly may be a surprise. If this was a… I would be stunned because this is of course the subject of a civil lawsuit that the Attorney General, the State Attorney General, Letitia James has brought. But famously, about a year ago now, the reporting was Alvin Bragg was not ready to pull the trigger on this, which caused Mark Pomerantz to quit. You know my thoughts on that, I am very dubious of Mark Pomerantz’s credibility and motives there. I’ve written about that for CAFE. But let’s just play this out. If you’ve made the decision as Alvin Bragg, I’m going to cast my lot with Michael Cohen. I’m aware of his baggage, but I feel confident I can corroborate him and present him to a jury. You kind of have to make that decision if you’re going to charge the hush money payments piece of the case. Perhaps it then follows that you have enough to charge the other case. So I will again hedge and say anything can happen. This one would surprise me, but I wouldn’t say it’s impossible.

Joyce Vance:

Last we checked, Allen Weisselberg was still sitting in prison, Trump’s CFO. Whether or not he is cooperating more robustly than he cooperated in the case involving the Trump organization, I think is an interesting question. We just don’t know the answer to that one. But as Elie says, I wouldn’t be surprised by anything at this point.

Barb McQuade:

Yeah, sure. I think it’s quite possible that we could see that. It’s been a year.

Preet Bharara:

You think it’s quite possible even though-

Barb McQuade:

I do.

Preet Bharara:

… there was all this controversy and all this pushback on the part of Alvin Bragg with respect to Mark Pomerantz’s book that suddenly were back in that game as well?

Barb McQuade:

I think you just don’t know. Things get reported. Things get reported by those who are willing to leak and there are other people who are not so willing to leak. So I don’t think we can ever know what’s going on behind closed doors. There was some pretty good bits of evidence in all of that. We saw some of it in the civil lawsuit filed by Attorney General Letitia James about overestimating the square footage of Trump’s apartment in Trump Tower by a factor of 10, some pretty black and white blatant lies there. And so I wouldn’t be surprised to see some of that resurrected. I think it’s a possibility.

Preet Bharara:

Barb, while you’re speaking, I’m going to ask you to do the honors of describing briefly and then we’ll discuss the merits and the seriousness and the challenges and the defenses because I think that’s what is important here on the substance. Could you describe very briefly if we’re right, that these charges will relate to the hush money payments, what those charges will be and whether it will be a misdemeanor or a felony, and then we’ll take it apart.

Barb McQuade:

There’s a New York law that makes it a crime to falsify business records. So to say you’re expend expending money on one thing and actually spending it on another is a misdemeanor offense. That offense can become a felony if the purpose of the falsification of the business records is to conceal another crime.

Preet Bharara:

Or to further another crime.

Barb McQuade:

Correct. So in this instance, I think the theory that people have been operating under, and it’s really based on the factual basis that Michael Cohen gave in his federal case where he pled guilty was all about the payment of hush money, that there was a desire to pay money to Stormy Daniels to prevent her from sharing a story about an extramarital affair. And it isn’t about the payment of the hush money, and I think there’s some either confusion or deliberate distraction about this, that it’s all about the payment by a victim of hush money, it’s about falsifying the nature of that payment. And so based on what Michael Cohen had to say in his guilty plea, he made the payment on his own. And then Donald Trump reimbursed him over a series of months by writing checks and claiming that those checks were legal fees.

Preet Bharara:

So that’s the falsification.

Barb McQuade:

That’s the falsification.

Preet Bharara:

So there’s a payment made, it’s presented on the books of the company as legal fees, legal retainer, and in fact it was to keep someone’s mouth shut. And then further, and we’ll get to this, it may have been an unreported campaign contribution if you can prove that the reason for the hush money payment was connected to the election, the payment was made on the eve of the election. Certainly he had a lot to gain by keeping Stormy Daniels quiet on the eve of the election when people were chattering about this. Can I ask the other folks, Elie and Joyce, about a criticism that will have been made, Barb points out, and then we’ll talk about the defenses of the charge if it comes. As Barb points out, someone has gone to prison relating to the facts that at the heart of this matter with respect to Donald Trump and his name is Michael Cohen, and he got sentenced to three years.

He didn’t do three years, but he got sentenced to three years. So clearly it was felt that this was a serious crime. Michael Cohen would’ve been the less culpable if there’s enough proof against the principle, and the principle here is individual one, Donald Trump. That case was brought by the southern district of New York, my old office, Elie’s old office. If the Southern District of New York passed on this case, what does that say to people about the propriety of Alvin Bragg as the local DA bringing a case against Trump? Is that a fair concern for people to have?

Joyce Vance:

So I’ll take a stab at that. I think it says absolutely nothing. Two different offices with different prosecutive priorities with different statutory authority. And what makes this one even more difficult, in the normal course of business, there might be some force to this argument, even if technically the two offices were distinct. Here we know that there was an effort by the former Attorney General, Bill Barr, to tamp down on any additional investigation into Trump, and that ate up a good bit of time. We don’t know, quite frankly, why Garland’s Justice Department didn’t pick the case back up. Was there a technical problem in the case? Were they concerned, for instance, about Cohen’s credibility? Maybe Alvin Bragg has a new witness that corroborates everything and makes the case much stronger.

Preet Bharara:

That’s doubtful to me.

Joyce Vance:

Well, I’m just saying there are-

Preet Bharara:

Possibility.

Joyce Vance:

There are a lot of things that we just don’t know. I just think it’s very difficult not knowing what their evidence is to evaluate their case. There just could be a lot of stuff going on that we don’t know about either good or bad for the case. Ultimately though, this is a different charge that Bragg is considering bringing from the campaign finance charges against Cohen and the federal system. So long as his evidence is solid and this is consistent with the way that this statute is used for other people, I think it’s well within his prosecutorial discretion to go ahead.

Elie Honig:

Can I say something that I never thought I would say? I’m going to say it on tape. You cannot blame this one on Bill Barr. I’m sorry. And we know I wrote my whole first book about Bill Barr.

Joyce Vance:

What?

Elie Honig:

This is not-

Joyce Vance:

What have you done to the Elie Honig we know and love?

Elie Honig:

The SDNY’s decision not to charge Donald Trump was completely independent of Bill Barr. It was made after Bill Barr was gone. I report in my book, my second book, Untouchable, that the SDNY had a series of internal meetings when they considered just this question in 2021 when Trump was leaving office and they decided on their own not to charge Donald Trump. Now the reasoning is kind of interesting. They felt that the evidence in the case was… There was a little bit of difference of opinion, which as you all know happens on the team. Some thought the evidence was borderline, others thought it was better than borderline. No one thought it was a slam dunk. But they took into account a lot of what we might call, I guess the soft factors or the discretionary factors and basically concluded it’s not worth bringing the first ever charge, which will be certainly politically charged like it or not, against the former president on this evidence for this crime.

Of course, technically it’s a separate office here, it’s a separate sovereign, and Alvin Bragg has the right to make his own decision. I don’t necessarily agree with the substance of that decision. The other thing I just want to say, and Preet, I think we’re just getting this, I think this is a shaky charge if it is as we currently know it from Alvin Bragg, and we’ll talk about that. But I do think it’s within the fairly broad band of prosecutorial discretion. I don’t think it’s an abuse of power. I have questions about the merits though.

Joyce Vance:

Elie, I just want to push back on one thing gently here, which is, I agree with you, and by the way, I loved both of your books, this point about when the charging decision is made, but Bill Barr tamps down on additional investigations sort of in the moment at that key point in time. I think that that fairly does influence what happens afterwards for what it’s worth.

Preet Bharara:

So I think on this point, I understand what everyone is saying, but it would be different if the Southern District of New York decided not to bring any case against Michael Cohen or anyone else based on this nucleus of facts, the hush money payment. And you have a different prosecutor with a different threshold and different discretionary thinking, different laws. Arguably by the way you could say that the federal case has a more appropriate law even though it’s the case at the state, has a different law of falsification of business records that can be elevated into a felony, maybe it’s more ill-fitting than the federal law. But that’s not what happened here. The Southern District made a decision to do something not as extraordinary as indicting a sitting or former president, but indicting the former lawyer to the sitting president while the guy was president, which is a big deal and you would be a big deal.

And they clearly in connection with that, were thinking about the ultimate target. And we don’t know why Elie has some reporting. We don’t a hundred percent know why they stepped away from that, but I think it does raise interesting questions. I don’t come down the way Joyce does in saying that there’s no connection at all and they’re totally wholly different. By the way, Alvin Bragg, I should note once again is a friend of mine, used to work for me in the US Attorney’s office and I supported his election. So he is an alum, to the extent this is relevant, of the Southern District of New York and is familiar with the ways that the Southern district thinks about cases and does cases. But it’s sort of interesting. I want to go back to what Elie said a second ago about the level of seriousness of the case.

And I think separate from the legal issues here, Alvin Bragg will need to make the case publicly that this is a serious matter and a serious case. And one step in that direction is to reiterate what I just said, it was serious enough that a federal US attorney’s office did an investigation and sent a man to prison who is less culpable than the person that we’re indicting here. I know what Elie’s view is about the seriousness of the case if its ticky attack or not. Joyce and Barb, is this serious conduct, is this the kind of conduct that merits a charge of a former president of the United States? Because that’s a question I’m getting a lot of from people who are no allies of Donald Trump.

Barb McQuade:

I think this is a serious crime, Preet, and I think it’s one that I would charge. I think the reason is, number one, we have seen that in New York, this charge of falsifying business records is one that is done with some frequency. So it isn’t like, wow, we had to really scour the code book to come up with this one. And this is a crime, it’s a serious crime and it’s charged frequently. The amount of the fraudulent entry is something like $130,000. That’s not Trump change, that’s a lot of money. But I also think you have to look at the context. I think sometimes people get distracted by the involvement of sex.

Preet Bharara:

That’s Elie, certainly.

Elie Honig:

My goodness.

Preet Bharara:

I know you’re thinking about Elie, I just want to put that on the record.

Barb McQuade:

Well, morality police, that’s first-

Preet Bharara:

I’m focused on the paperwork.

Barb McQuade:

I can remember other cases I’ve had where you want to avoid these allegations that you’re only going after this person because of this sensational allegation of some sort of sexual misconduct. And in some ways, I’m sure he would wish that away if he could find just some clean business reason to charge him. But this is an important matter because you have to think about the timing of this. This hush money was paid, allegedly, according to the sworn plea agreement of Michael Cohen on the eve of the 2016 election, right as that access Hollywood tape is coming out.

And so not only was this a false business record and perhaps an illegal campaign contribution, but it might even have swayed the outcome of the 2016 election. But for this payment, we might not have ever had a President Trump. And so I think it’s a very consequential crime. And for that reason, I think it is one that I would charge. And because it gets charged against a lot of people for a lot of different reasons, I think that there’s nothing singling out Donald Trump by charging with this, there’s no selective prosecution at work here. In fact, what he really wants is to get special treatment by having Bragg decline the prosecution.

Preet Bharara:

Yeah, I mean in some ways, and I’ll let Joyce answer also, in some ways it would be selective non-prosecution, one could argue, if Trump wasn’t charged because you have, as I keep repeating, someone has gone to prison for misconduct, a less culpable person has gone to prison. In what circumstances is it fair or just for the less culpable person to go to prison and the more culpable person who is directing the misconduct in the scheme not to go to prison.

And by the way, a further point in favor of Barb’s argument supporting the seriousness of the charge, and I wonder what people think of this is it’s not something that happened on one day and then was over. The scheme to make the repayment that is part of the potential charge of falsification of business records was the reimbursement of Michael Cohen over the course of months by Donald Trump, by check in his own hand while he was the sitting president of the United States of America. It went well into the first year of his presidency. I don’t know if that makes a difference in people’s thoughts about the seriousness of the crime or not. Joyce, what do you think?

Joyce Vance:

So I’m on board with Barb’s argument here. I think it’s a serious crime and I think it’s really interesting, maybe this is because of the sex to Barb’s point. People are drawn away from viewing this in context of Trump’s sort of just explosion of activity designed to win elections at any cost. This is really the first instance where we see him trying to manipulate the result in an election. This happens on the eve of the election. Trump always seems to get some kind of special treatment I think because he proclaimed so loudly that there’s a witch hunt against him, somehow that has always insulated him and earned him this, the name of Teflon Don. This is a serious crime. This is an effort to undercut an election. It is also a violation of New York law. I think that we should really stop talking about this as the least serious of Trump’s crimes and talk about how horrific it is that we have a former president who’s… I’ve lost count of the number of serious criminal investigations. I think it’s at least four right now, maybe five.

Preet Bharara:

We’ll be right back with more analysis after this.

I keep seeing people bring up the John Edwards prosecution to make the point that this kind of conduct to hide something or to prevent something from coming out can be viewed as campaign activity. And the Justice Department made the weighty decision to bring a charge, but it matters that that charge was unsuccessful and there was an acquittal on one count, I believe, in a hung jury. And the Department of Justice did not find it to be serious enough or have a plausible enough path to conviction to try it again. Now Elie, you’re in the business of retrying cases. We don’t give up CEG, John Gotti Jr.

Elie Honig:

For those people out there who may not have picked that up, that’s shade at someone who had a hung jury one time.

Preet Bharara:

So on the one hand, yeah, a charge was brought and it could be analogized, but it was a pretty big failure on the part of the Justice Department. Should that factor in here or not?

Elie Honig:

I think you need to consider it. And the John Edwards case was similar in that it involved payment of hush money and he was charged as a campaign finance violation. The problem with that case is the jury was not convinced beyond a reasonable doubt that the motivation there was campaign focused or electoral as opposed to avoiding personal humiliation for John Edwards and his family. There are important factual differences, however, including, and I think importantly the fact that John Edwards’s payoffs continued after the election, which do suggest that the real motive there was not election. So in that respect, I think that the facts here are stronger. It’s really important to keep in mind though, when we talk about did it swing the election and how wrong it was. Again, payment of hush money is not lovely, but it’s also not the crime here. The crime has to do with the booking of these.

And this could explain also why Michael Cohen gets charged, but not Donald Trump. First of all, Michael Cohen took a plea. He took a package plea. We’ve all been in that situation. You have someone who’s ready to take a plea. You go, “Okay, you’re going to be eating charges A, B, C, and D.” It’s not the same as charging a crime and having to duke it out and go to trial. So that’s number one. But the key question really is, can you directly tie Donald Trump to the way these payments were booked and logged inside the Trump organization? As far as we can tell right now, that is largely dependent on the word of Michael Cohen. And I would add, this is another evidentiary problem, we all remember Michael Cohen taped Donald Trump when this was happening. You remember this, this tape came out publicly. It’s a quick conversation. And in that conversation, Michael Cohen is laying out to Donald Trump how they’re going to do it and Trump’s sort of asking questions.

At one point he says something like, “Are we going to pay cash?” And Michael Cohen says something like, “No, no, no, don’t worry, Allen Weisselberg and I are going to handle how we put this together, which if I’m arguing this case for the jury to the jury for Donald Trump, I say right there folks, there it is. Donald Trump is hands off. Michael Cohen says, “Don’t you worry about how we’re going to log this and book this, me and Allen are going to do that.” And again, the hush money payment unseemly not illegal. The prosecutors are going to have to tie Donald Trump to knowing the way that that payment was structured and booked beyond a reasonable doubt.

Preet Bharara:

But isn’t it true that to get the felony here, in all likelihood if we are theorizing about this correctly, you’re going to have to show, [inaudible 00:26:16] is going to have to show that the reason for the payment was either, I don’t know what the jury instruction will be, but largely or exclusively or principally for the purposes relating to winning the election. And doesn’t Donald Trump here also at least have some defense that like John Edwards, though it was near in time to the election, I was trying to avoid personal embarrassment rather than trying to win an election.

Elie Honig:

So that’s part two of the potential crime here, which would elevate it to a felony. I think prosecutors will point to exactly that, to the timing. This affair happened 10 years before, the payoff happened right before the election. But I know what Trump’s response is going to be to that, his lawyers have said it publicly. They’re going to say, “Yeah, that’s when this opportunist Stormy Daniels stepped forward because she knew that my client, Donald Trump, was at his most vulnerable. That’s when it would hurt him most.”

Preet Bharara:

Right. The timing occurred because of her, not because of him.

Elie Honig:

And the record is clear, she’s the one who came forward demanding payment, I mean years before this. So there’s an interesting back and forth there.

Barb McQuade:

One of the other things we’ve been hearing about this is that the payment was made not as an expenditure for the purpose of influencing the campaign, but to protect Melania from embarrassment, to protect his wife and his family. I have always been of the view that you can have multiple purposes for things. And so just because he may also have wanted to help protect Melania does not mean it negates the purpose of influencing an election. Do you agree with that proposition?

Preet Bharara:

Well, as I said, I don’t know what the jury instruction would look like. It’d be interesting for us, if and when we see an indictment, to actually look and see what we think in this kind of case. A New York grand jury would be told about the relative weight of that reason for making the payment that would qualify it as something that’s a campaign contribution. And in different areas of law and public corruption that many of us have overseen cases relating to, it does not have to be the primary purpose or the only purpose.

When you take money as an elected official to vote in a particular way, and we’re worried in some cases that this would be a defens. Sometimes politicians will say, “No, I was going to vote that way anyway. That’s how I wanted to vote. And I got paid to vote the way I was otherwise going to vote.” Suggesting somehow that because one of the reasons you voted a particular way was because that’s where your heart was anyway, doesn’t negate your culpability criminally for taking money to vote the way you were otherwise going to vote. Does that make sense?

Barb McQuade:

Yeah, absolutely. That’s my understanding as well. So when I hear some of Trump’s defenders saying it’s an either or proposition and it was all about Melania, I think that’s wrong as a matter of law. And I think it’s designed to distract and create talking points for his supporters.

Joyce Vance:

And while it’s not binding precedent, there was a ruling in the Edwards case to that effect early on that said that you could have partial motives and that if a part of your motive was to influence the election, that that was enough. So I think your reasoning is sound.

Preet Bharara:

I want to go through some of the challenges and tick them off so that we are previewing where the legal fights will be. As people have pointed out the last payment or the last plausible time where this crime was being committed, I think people generally agree was more than five years ago on its face beyond the statute limitations. New York state has a provision that tolls a statute of limitations, pauses a statute of limitations for all those days on which a defendant was continuously out of New York, we know that Donald Trump was in the White House, came to New York very infrequently, in 2019, changed his permanent residency formally to Florida. Does everyone agree yes or no that the statute of limitations is not going to be a problem for the DA’s case?

Elie Honig:

I agree with that.

Joyce Vance:

There’ll be some legal skirmishes over it. There’s also this COVID provision that continues the statute of limitations. I think that they’re good enough prosecutors in the office that they’ve done the calculation.

Barb McQuade:

Yeah, I think Trump will complain about it. I think will have motions about it. He’s going to fight every possible legal theory he can, but at the end of the day, the statute seems pretty clear that the time gets told when a person lives out of the state. So I think it’s going to be okay.

Preet Bharara:

Is there an alternative argument? I threw this out last week without the benefit of deep legal research. Is there an argument that because Donald Trump when he was president, was by policy and precedent not indictable, that there’s some equitable tolling of the statute of limitations by virtue of the fact that he was in the presidency?

Elie Honig:

So I think that’s an interesting argument, Preet. I was just going to say that as a sort of third fallback argument on the statute of limitations because the real test is unavailability, a person we couldn’t indict for some reason. Although there’s a sub sub-question of, does that policy against indicting a sitting president? We know it binds DOJ. Does it bind a county slash state prosecutor like Alvin Bragg? So that may be a third fallback for prosecutors.

Preet Bharara:

Can I ask a substantive question? And I’m directing this a little bit more to the MSNBC panelists. What is the deal with Donald Trump’s lawyers going on TV and failing to make a decent argument? I mean, there are arguments to be made and we’ve just been discussing them here. This is an unfair question maybe, what is going on with that?

Joyce Vance:

Props to Ari Melber. His bookers do a great job and they did it frankly throughout the Mueller investigation too, where he’d get key witnesses from Trump’s inner orbit to go on television and then say stuff that ended up in indictments in one of the cases. It’s astonishing that these folks continue to go on television.

Barb McQuade:

Yeah, and go on television and actually make confessions. Andrew Weissmann pointed this out where he said-

Joe Tacopina:

This was a plain extortion. And I don’t know, since when we’ve decided to start prosecuting extortion victims. He’s denied vehemently denied this affair, but he had to pay money because there was going to be an allegation that was going to be publicly embarrassing to him regardless of the campaign.

Barb McQuade:

So you’re admitting the payment that you then booked as legal fees. Not only did he come on and was incredibly, I thought unpersuasive, but I think he might have really harmed the client in this way.

Joyce Vance:

All is fair in love and war.

Preet Bharara:

Can we talk about something else that happened this week? And I wonder going back to the beginning of this conversation, if anyone thinks this may be a reason for the postponement of the grand jury. We’ve all worked in the federal system. Elie has worked in both the federal and state system, that state system being in New Jersey, and there are different grand jury rules. There’s an unusual, at least for those familiar with the federal system, an unusual provision in New York law that allows somebody who is a target to ask for a witness to be called. And the Trump team requested through the formal process that a lawyer named Robert Costello should go testify. Costello was someone who had been potentially a legal counselor to Michael Cohen. The point we’re told of Robert Costello going in earlier this week was to undermine the credibility of Michael Cohen, which he himself has undermined himself on multiple occasions. Does anybody have a view on whether or not that was a good idea, a logical move, or if that moved the needle with the grand jury at all?

Joyce Vance:

It only makes sense if you think it prevents an indictment from happening because otherwise it means that the Trump team has given the prosecution early access to what one of their presumably witnesses will say and previewed it. So it doesn’t seem to be assuming that there ultimately is an indictment, and were correct, doesn’t seem to have been a great strategic move.

Preet Bharara:

In my law school seminar at NYU this week, we spent an hour talking about this. I thought it’s a good lesson relating to some of the topics we cover in the class. How do prosecutors make charging decisions? What are appropriate considerations? Normally we say, external considerations like the perception of politics or whether or not there will be protests, what the political consequence might be are things you never think about and you’re not supposed to care about. And some of that is being brought into question with respect to an extraordinary case that involves potentially the former president of the United States.

It’s my understanding that one of the arguments Trump’s lawyers made to Alvin Bragg and his team was a pure political argument. In other words, some version of this person that you don’t like, this person that you don’t want to be back in politics, is going to be catapulted back into the presidency out of sympathy and solidarity if you bring this ticky tack charge against him. My question to you, which is a question I asked my class, is that an appropriate consideration that and also the possible threat of public protest and violence, are either of those proper considerations one way or the other for Alvin Bragg?

Elie Honig:

I think the answer is straight up, no. I think we go back to first principles as prosecutors. Here, all the cliches are true. In this instance, you seek justice no matter what without fear or favor. I don’t think there’s any… You cannot consider those factors, but I do want to spin it the other way too. And like you Preet, I’m friends with Alvin. I’ve known him for a long time. I worked side by side with him at the Southern District of New York, and I’ve publicly defended him many times. But I wonder what people think of this. What if Donald Trump had flamed out? What if everything happened the same and all of his personal finances and overinflation under inflation and hush money payments were the same? But what if in the Republican primary in 2016 he got 4% of the vote and he quit a couple states in and we never heard from him again? Do we really honestly in our heart of hearts, believe that the New York State AG and Manhattan DA would be doing exactly what they’re doing now? Or do we believe that it would?

Preet Bharara:

Yeah. I’ll tell you that I think there’s an argument to be made and the president for that is John Edwards. John Edwards was charged after he had flamed out, after he was a nobody, after he had no real prospect of becoming president again, which is the hypothetical you’re giving with respect to Donald Trump. I’m not saying that’s the right thing, but that’s literally what happened. That’s the one difference between John Edwards and Donald Trump. John Edwards was on the way out. Donald Trump is perhaps on the way back in.

Elie Honig:

But with local prosecute would stay and local prosecutors be pouring through the business records, looking for financial crimes, looking for tax crimes which have been charged against Allen Weisselberg. I mean a guy’s in prison because of this. Would it be the exact same? Do we really think Alvin Bragg would be digging through and Letitia James would be digging through with the intensity and profile that they’re doing? In my heart of heart, the fact that a different set of prosecutors did it with John Edward too was a high profile person and vice presidential person, a vice special presidential candidate a long time ago. I don’t think that gives us necessarily the same result here.

Barb McQuade:

Yeah, Elie, I would respond by saying, number one, I think you have to go after this case without fear or favor as you said, you can’t let you unrest in the streets stop you. But your question about whether I think they would go after Donald Trump, I think it’s a little bit hard to create that scenario because, number one, we might not have received the information because of the way things shook out with Michael Cohen and the other investigation. They may never have known about any of it, so the issue may not have come across their desk. But then when it does come across your desk, I think one of the reasons for the vigor of the investigation is because you know Donald Trump is going to fight like an animal.

And so you have to make sure that your tees are crossed and your eyes are dotted times a million before you’re going to do this because he’s going to put posts on truth social and say all kinds of outrageous things. So I do think it probably adds to your selection of who you choose to staff that case, the amount of briefings that Alvin Bragg is getting to make sure that he thinks that this case is being handled as professionally and soundly as possible. So I do think it’s different, but I don’t think that that necessarily means it’s inappropriate.

Elie Honig:

And I agree with all that, Barb, I just… It’s the come across his desk part that gives me a little bit of pause. This did not sort of just flow through his desk in the normal course of business. Bill Barr tried to say that when he was asked, “Why did you step in on Roger Stone and Michael Flynn only?” And he said, “Well, those were the cases that happened in the natural flow to come across my desk.” I mean, obviously there were cases initiated because he is Donald Trump because he’s hated, because he’s despised in New York and Manhattan. I can’t just accept that this would’ve happened if Donald Trump was politically popular here in New York, if Donald Trump was a Democrat. I just don’t think either of those two prosecutors would’ve dug in to his personal finances and his pre-presidential conduct with anywhere near the ferocity that they have.

Preet Bharara:

Can I say one thing in response to that? And it’s a generalized observation in the wake of people saying that Alvin Bragg is being political, is on a witch hunt, he wants to do anything possible to take down this person who’s still in the political mix. And what’s a little bit odd to me about that argument is here’s Alvin Bragg, like him or not, who has for a year taken withering criticism from two former prosecutors in his office, Mark Pomerantz, and to a lesser extent, Carrie Dunn, one of them in book length fashion for complaining that Alvin Bragg was too deferential and too scared, arguably, and too timid in going after someone, Donald Trump, against whom at least some people thought there was a triable and winnable case. And it’s what I find it a little bit odd for people… I’m not saying this is you, Elie, but for people including-

Elie Honig:

No, this is a good point.

Preet Bharara:

On the Republican side saying this crazy man is out of control for a year. He’s been accused of being not aggressive enough and not going after Donald Trump when there was a lot of public pressure to do so and internal pressure to do so. So you have external and internal pressure, charged Donald Trump. He had the backing of some very, very notable people including Mark Pomerantz, and he didn’t do it, and he’s doing in this other case. We can criticize the other case once we see what it looks like or we can praise the case and the merits of it once we see what it is. But it’s just bizarre to me the attacks on Alvin Bragg for being overly aggressive and engaging in a witch hunt when you have that other history as well.

Elie Honig:

I think that’s a great point. I think the counter-argument to that is that Alvin Bragg got spooked that he took this massive wave of anger and hatred, including from his almost entirely democratic base here in Manhattan, caught him by surprise. And then this thing comes back to life in a public way two or three weeks before Mark Pomerantz’s bogus, ridiculous book, book that was on 60 Minutes and Matt Allen got a ton of attention, comes out. I don’t know which is the case. We are openly speculating here about a person who we both deeply respect. But Preet, I think that the argument you make has some power and resonance as well.

Joyce Vance:

Elie, to the timeline though, it seems unlikely to me that this prosecution just got kicked into gear when we became aware of it publicly. I suspect the wheels were set in motion earlier, maybe before they knew about Mark’s book because he did not pre-clear it like he was supposed to through the office. I’m just not sure. I typically think that there’s no such thing as coincidence in law enforcement. However, here it might be a coincidence.

Barb McQuade:

I agree with Joyce. All of you have been involved in matters where there’s been some press speculation about what’s happening in your office. And in some ways you chuckle about, “They have no idea what’s going on in here,” and yet it doesn’t stop them from having very strong opinions about things. There are other times you say, “Oh my gosh, how do they know? They have listening devices in here?” And some of it’s guesswork. So I agree that with Joyce’s view that we don’t know when this started. I’d be surprised if it started just because Mark Pomerantz wrote a book. I think he has always wanted to be the hero of his own story. I think that a prosecutor is entitled to bring charges at any time before the statute of limitations expire. And it may seems most likely to me that Alvin Bragg simply thought, I want more evidence that you are satisfied with evidence X and I want evidence X plus, I want more before I feel like we can prove this case to a jury beyond a reasonable doubt.

Preet Bharara:

Stay tuned. There’s more coming up after this.

I think we should describe for folks, Lay folks in particular, what this is going to look like. So if in the coming days Alvin Bragg announces the indictment, unseals an indictment against Donald Trump on whatever charges, how does that work? Does he get arrested? Does he come in for photographs? Is it a mugshot? Does a Secret Service come with him? This is an area that is not explored, but the bunch of us have lots of experience in how an arrest takes place. And by the way, arrest is different from being charged.

I’ll point out as an initial matter, and then want to hear you folks explain it further. Donald Trump is not getting arrested. In other words, no one’s going to Mar-a-Lago and asking him to come out with his hands up and putting cuffs on him and pushing him into a squad car. He will be allowed to voluntarily surrender in some fashion, that’s the phrase that we use, because he is not a risk of flight or in this matter, at least not a danger to the community. And other people may have a different view of that at large, and it’ll be done in a way that’s accommodating and somewhat deferential. Is that right?

Joyce Vance:

I think that’s dead on the money.

Barb McQuade:

But that’s not necessarily more deferential because he’s a president, maybe a little with the Secret Service part. But in most non-violent cases, if you’ve got somebody in a white collar case, you typically don’t go in and arrest them with guns blazing unless you have reason to believe that they might flee, that they might be dangerous, that they might destroy evidence. And so I can think of many occasions where a defendant was allowed to self-surrender, it’s safer for agents not to execute an arrest. You save a lot of resources and most of the time a lawyer will bring his client in the next day for an arraignment.

I think the added wrinkle here, of course, is the presence of Secret Service agents. And I imagine that there will be cooperation, that they want things to be done safely and efficiently and probably out of the public eye. They don’t want a perp walk scene. So they’ll probably make arrangements to let him drive in through the back door so that there’s not the big walk up the gaggle of press up the steps of the courthouse as he walks in. Unless of course Trump wants that, which I think all signs indicate-

Preet Bharara:

He may.

Barb McQuade:

… that he’s sort of relishing this. Yeah, this opportunity, right?

Joyce Vance:

Fundraising videotape, right?

Preet Bharara:

Yeah.

Joyce Vance:

So I had an interesting conversation with a Secret Service agent because I sort of had a question that I think a lot of people have. What’s the Secret Service’s role here? And this agent shared with me that not thinking about Trump, but in other situations where a protectee could have been arrested, they sort of gamed out what that would look like and a Secret Service agent would accompany that person through the booking process. And so add to the list of unprecedented sort of activity that we’re about to see, an armed Secret Service agent going through the booking process, protecting the former president of the United States, while he, I think very briefly, falls within the control of a police agency at least briefly, initially. And all of it really adds up to quite a spectacle.

Barb McQuade:

Oh, think how that might play out, Joyce. Imagine this, you’re the brand new Secret Service agent. You’re all excited about your new job and they tell you your assignment. You’re going to spend three to five years as the cellmate of your protectee.

Joyce Vance:

I mean this is-

Preet Bharara:

People keep asking that question.

Joyce Vance:

It’s crazy stuff, right? Because what do you do? How do you put an armed person into a facility? Even good Secret Service agents fall asleep from time to time. We’re sort of laughing, but in many ways this opens up so many questions on so many fronts down the road.

Preet Bharara:

Well, here’s another question. Here we are in the middle of March, 2023. People have some sense from watching the news and paying attention to trials and court happenings that just because you charge someone, they don’t get a trial right away. And roughly speaking a case like this in the ordinary course, or this is not an ordinary case, might take 16, 18 months to come to trial. And if I’m doing the math correctly, that puts us almost smack right before or at the time of the 2024 presidential election. Isn’t that a mess?

Barb McQuade:

Yeah. And I think before we get there, it’s quite possible that we’ll have additional indictments also, and Trump will have to think about defending himself in possibly three or even four different jurisdictions all while running for president.

Preet Bharara:

And we should point out, by the way, none of that, because I get this question a lot too, and we should make sure that people understand this, and this will make some people not happy, but it’s the rule for everyone, Democrat or Republican or independent, none of these indictments prevent Donald Trump from running for the presidency and winning the presidency, correct?

Joyce Vance:

Absolutely correct. Yep. The presidency from prison, right? I mean, add to the crazy.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Members of CAFE Insider can head over to the CAFE Insider feed to listen to part two of our conversation. We discuss house GOP calls on Alvin Bragg to testify before Congress, whether Trump can get a fair trial in Manhattan, the timing of a possible trial, and whether it runs into the election of 2024 and more. If you’re not yet a member, consider joining. You can get your first month for just $1. Head to cafe.com/insider. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at preetbharara with the hashtag #Askpreet, or you can call and leave me a message at 669-247-7338, that’s 669-24preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE in the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer Staden, Noa Azulai, Nat Weiner, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay Tuned.