Preet Bharara:

From CAFE and the Vox Media Podcast Network. This is a special edition of Stay Tuned. I’m Preet Bharara. Former president Donald Trump was just convicted of 34 felony counts of falsifying business records. The Manhattan jury delivered its verdict after just two days of deliberation following a trial that spanned six weeks. The guilty verdict marks the first time in US history that a former president has been found guilty of a crime, and it also makes Trump the first presidential candidate to run as a convicted felon. Joining me to discuss are my CAFE Insider co-host, Joyce Vance, CAFE contributor and CNN legal analyst, Elie Honig, and Westchester County District Attorney Mimi Rocah.

So everyone, welcome to this special episode of Stay Tuned. I don’t think we’ve had this collection of talent representing the stables of both MSNBC and CNN and the world ever. Joyce, Elie, Mimi. Welcome. Why don’t we start with you Mimi sitting District Attorney in the adjacent jurisdiction of Westchester County. I understand that you’re in a car, but feel strongly enough about talking about the verdict that you’re joining us. First question to you, were you surprised at all about the speed of the conviction?

Mimi Rocah:

Thanks for having me. Great to be with this group of talent on this historic day.

Preet Bharara:

August group, I think. It’s an August group.

Mimi Rocah:

August group. I think the answer to your question is no, I wasn’t surprised by the speed. I think as all of us know, the number of counts I think is what people were focused on. Right? “Oh, I think it’s 34 counts that will take them forever to go through.” But the truth is that in many cases, and in this case, the counts were all very related and once they found as clearly this jury did find that the people had proven beyond a reasonable doubt that the falsification of business records happened to cover up another crime and that the intent was there, it really all flows from there.

And so, while yes, they had to be unanimous as to each count, it would’ve been very unusual I think, in a case like this, for them to find him guilty on only some of the counts. So I think the number of counts made it seem like something where deliberations would’ve gone on and on forever. But in many ways it came down to focusing on the evidence that the people asked them to focus on and they did that very quickly and were able to arrive at a verdict.

Preet Bharara:

Yeah. What’s interesting, I don’t know what, Elie, you or Joyce think, I had thought there might be a reasonable possibility that on some of the counts there would be either a hung jury or an acquittal. In particular the invoices, right, that Donald Trump was more disassociated from. Elie, you have been a little bit more pessimistic about the chances of success at this trial for the prosecution than some. What do you make of it?

Elie Honig:

Well, yeah, I mean I do want to be clear about that. I’ve said throughout, including in my-

Preet Bharara:

Okay, Elie.

Elie Honig:

Well listen, this is an important distinction. People need to distinguish between being critical of a case and thinking the case is going to result in a guilty verdict or not. We’re not here to cheerlead and the fact that I’ve been critical of this case, I’ve also been quite clear in the middle-

Preet Bharara:

Well, I didn’t say critical. I guess I just said more pessimistic about the chances of success for the prosecution than some others.

Elie Honig:

I don’t know that I even agree with that because I’ve said in my CAFE Notes for the last several weeks running, the most likely outcome is conviction. So I retain, and my note this week, I respect the jury’s verdict. I don’t think anyone can say they got it right or wrong. I think this case is within the range where reasonable jurors could have come out either way. But I think there are still deep-seated problems with this case that are not cured by the jury’s verdict. That said, my position all along has been that conviction is the most likely outcome here. Sorry to come out firing, but I’m a little frustrated with some-

Preet Bharara:

Are you in a moving car, Elie?

Elie Honig:

No. No. But look, some of the resistance capital R response to my commentary has been, “Ooh, you were wrong.” No, I’ve said all along, “Brace for conviction here,” in writing in this very format. But, and we’ll get into this, I still think this case was unjustified, has political problems in it, has structural problems that are not cured by a jury verdict.

Preet Bharara:

Joyce and I have talked about at some length some of the problems with the case. In particular, I think we’ve gone off at great length about the problematic nature of Michael Cohen and how jurors could have thrown out the entirety of his testimony. Joyce, I’m going to give you the unfortunate task of picking up where Elie left off and putting on, as I often ask you to do, your appeals hat. So a lot of people gratified that Donald Trump has been held accountable, all 34 counts, whether that’s for political reasons or for rule of law reasons. The Trump supporters keep saying, well, we will see you in the appellate court. What’s going to happen on appeal here? What do you think are the most viable appellate points for Todd Blanche and company?

Joyce Vance:

Yeah, so if Donald Trump holds true to form, this will be one of those scattershot appeals where they argue everything including the kitchen sink in hopes that something will stick. Look, I think that they’ve got some good issues to raise, but I don’t think that they’ve got an issue that will amount to reversible error. I think that’s my top line. But there are some big deal legal issues. For instance, there’s a question of whether you can use a federal crime as the object crime here. It turned out that the crime that elevated the misdemeanor charge to a felony was a federal campaign finance charge. Trump will litigate that. I think based on the law, he will lose. There will be an issue. We all remember when there was the effort at the mistrial around Stormy Daniels testimony. They’ll argue that she went into impermissible testimony and it prejudiced the jury. They will lose. They argue that this was a tainted venue where Donald Trump could not get a fair trial and they will lose that one too.

And I think so on and on down the line, these are the kind of issues that will probably lead to Trump getting an appeal bond. That’s a somewhat low standard. All you have to do is convince the court that you’ve got a significant issue on appeal in order to remain free on bond while the appeal is pending. But I think that that’s the last break Donald Trump will get and that this conviction gets affirmed.

Preet Bharara:

Elie, Mimi, do you think there are other problems? Elie, you talked about structural problems. What haunts you on the issue of appeal?

Elie Honig:

I agree with Joyce. I think there’s substantial issues on appeal. I think the chances of a reversal are larger than normal in a normal criminal case. But I also think that on balance, it’ll probably stand up. The biggest structural issues, to me, the big one is charging a federal campaign violation even as a sort of sub-crime in a state court. That’s literally never been done in any state ever before, anywhere, anytime. So we don’t know whether that’s going to stand up. And then, there’s this sort of menu problem where there were three unlawful means offered. The judge let the jury pick and choose, didn’t require unanimity or specificity.

Preet Bharara:

On that unanimity point, that sort of bothers me. I haven’t understood how that’s okay. And could the prosecution have decided, in an abundance of caution, which would’ve made the conviction more difficult, could have decided they were going to pick one and try to get unanimity? What would you have done on that?

Elie Honig:

It’s a great question. And to me, the three they offered, the three options were one federal campaign law, two tax, and three falsification of some other documents. I don’t know why they didn’t just drop two and three. They spent next to no time on tax or falsification of other documents at trial. Clearly their strongest argument and clearly the one they focused 99.5% of their fire on was the federal campaign law. So to me, make it easier, make it clear for the jury and eliminate the appeals issue. Drop the other two.

Joyce Vance:

Yeah. Can I just jump on this one and say of all the issues, and I should have flagged this one, this is the one that really does concern me the most. There’s a Supreme Court case called Richardson that in the context of a completely different federal statute requires unanimity on a sort of a similar thing where jurors have to find that there’s another conviction involved in the background. This case is a little bit different from that one, and that law may not carry over here, but I think that this is where the defense has a good opportunity to both get the appeal bond and to try to convince an appellate court that there’s a reason to reverse.

Preet Bharara:

Mimi is the only sitting District Attorney in this conversation. Can I ask you to explain to folks what happens now? A sentencing date was set for July 11th. What happens between now and then? Will there be arguments? Will there be a report written? Does Donald Trump have free rein to do whatever he wants? What’s the process going forward?

Mimi Rocah:

So I think the way, well with this group in particular I’ll start, is to say it’s much less formal and structured than the federal system. So yes, there is a report done by probation, but it is not nearly as extensive as what we see in the federal system, and it doesn’t frankly carry, in a normal case. And look, I’m speaking about Westchester County. Manhattan is a different county. It could be different. They have a larger probation department than we do.

So maybe it is a little more extensive, maybe it carries more weight, but it’s an interview of the defendant usually. I don’t know what will happen here, whether he will participate in that interview, as you know they can decline to, but it isn’t going to, I don’t think, sort of unearth anything really unexpected here as sometimes where there’s a little less known about the person. We often have sentencing discussions in our office where it doesn’t even come up what the pre-sentence report is or whether there’s a recommendation because it just doesn’t carry as much weight here as it does in the federal system. The judges have a lot more latitude here.

I know everyone’s been saying that he’s facing up to four years. It’s not quite right because in the state system there is a indeterminate sentence for an e-felony, which this is the maximum is one and a third to four years. So it isn’t quite right to say that the maximum is four years. It can be anywhere from one and a third to four years, but that’s just the maximum. It can be anything below that as well. It can be probation, it can be conditional discharge. The one thing I wanted to say is obviously they could move to adjourn the sentence, but they also want to appeal. And so they probably wouldn’t do that. There could certainly be bail pending appeal. So even if a sentence is imposed, even if there was some kind of jail or prison that could be stayed until the appeal is done.

And the last thing I wanted to say is that I do think just like in the federal system, the sort of contrition or acceptance of responsibility even after a trial is something a judge will take into account and the probation department will ask the defendant about if they interview him. And obviously, clearly that could be a big factor here because I don’t know that Trump will accept any kind of responsibility.

Preet Bharara:

You don’t know. I’m not actually know. You know that he will do the opposite.

Mimi Rocah:

True, exactly.

Preet Bharara:

It was a witch hunt, Mimi Rocah.

Mimi Rocah:

I heard.

Preet Bharara:

Can I ask the other two of you, I’m not going to ask you yet what you think Judge Merchan will do, but if you’re the DA’s office and you’re putting in your submission with respect to sentencing, are you asking for a term of incarceration, are you leaving it to the judge? How are they going to phrase what they think the appropriate punishment is for Donald Trump in this unprecedented case?

Joyce Vance:

I’m going to make the ask for custody for this reason. It’s important in sentencing to be consistent with your cases across the board. Rarely, not always they ask for custody in this sort of a case, but you’ve got a first time offender. It’s not a violent crime. He’s older, but you have this persistent history of violating the gag order, something that he could have been put in custody for. The court was very, very patient with Donald Trump. And I think in my academic context, when I teach criminal law, the reasons we have a criminal justice system to prevent recidivism, to hold people accountable. With Donald Trump, there’s no acceptance of responsibility. There’s no possibility of rehabilitation. There’s no concept of general or specific deterrence. In fact, Donald Trump’s behavior really promotes disregard for the rule of law. And so, I’m left at bottom with punishment here. I think Donald Trump has to spend some time in custody and the DA’s office will ask for it.

Preet Bharara:

Is that easier for the judge to do if he also decides, as Mimi suggests, that he can sentence Donald Trump to some period of incarceration, but grant him bail pending appeal so that punishment wouldn’t be visited upon him for months, or a year or two?

Joyce Vance:

Yeah, I think absolutely. I think it’s both easier and I think it’s legally correct that he’s entitled to that appeal bond until that point in time.

Elie Honig:

Yeah, this sentencing is going to be extraordinarily difficult for all parties, except the defense. The defense position is easy. “He shouldn’t be given prison time.” I think if I was in the prosecution’s shoes, I would ask for detention for prison time, as well for the reasons Joyce states. And also, it’s just hard to bring a case like this, get a conviction across the board and say, “We’re fine with probation.”

Preet Bharara:

Yeah, well, so how much time. How much time are they asking for?

Elie Honig:

Well, and that sort of brings to the second point, which it wouldn’t shock me, to see the DA, who we all know to varying extents, Alvin, I mean Mimi and Preet and I know him very well. It wouldn’t shock me to see him. I don’t mean this as a criticism, I’m just trying to foresee the future sort of punting little bit, like taking a little bit of a non-specific sentencing stance. Like for example, “Your Honor, we ask the court to impose a punishment consistent with the seriousness of the offense and the nature of the defendant and sufficient to impose deterrence in the future.” Something like that without saying a number. And then God help the judge.

Preet Bharara:

As the prosecution, this is the way I would think about it. If I were the DA, and I did think about it this way when I was the US attorney, you can be somewhat nonspecific in that sense, but then you would give the judge sort of a matrix and say, “In the past five years, defendants who have been convicted of these kinds of charges, falsification of documents raised to an e-felony, have gotten a range of sentences depending on their peculiar circumstances from probation to 18 months in prison.” Or whatever the case may be, so that the judge sees how ordinary people who fell into these categories were treated and then leave it to the judge. Wouldn’t they do that?

Elie Honig:

This is why you were the US attorney. I think that’s a really good approach. Again, I think I would really want to avoid making an ask. I think that the bolder prosecutorial move is to make an ask. And if I was in that position, I would ask for prison, but I also would be looking for a softer way to do it. And I think maybe a soft ask for prison. Here’s all the information you need, judge. Here’s the concerns we have, and you’ll impose whatever sentence you think is appropriate.

Mimi Rocah:

Can I jump in for a second? I got to disagree with you guys here because again, I can speak from the perspective of-

Preet Bharara:

What authority do you have, Mimi Rocah?

Mimi Rocah:

Well, I mean it’s very rare that I see, but it’s because I do think, at least again in my county, the judges here would lose their mind if we didn’t make a recommendation in a case like this.

Preet Bharara:

A specific recommendation?

Mimi Rocah:

Yeah. The people almost always do make recommendations in the state system. We’re used to, as federal prosecutors, being much more deferential. Like here’s the range and you should impose some- And here they really look to the parties. They can do whatever they want afterwards.

Preet Bharara:

Yeah.

Mimi Rocah:

But I think if I were Judge Merchan, I would say, “Okay, but what do you think the sentence should be here?” It doesn’t mean he is going to do it, but at least give me a range.

Preet Bharara:

So pretend you are in New York County, what is the appropriate seek for the prosecution?

Mimi Rocah:

Well, that I’m going to punt on a little bit because I don’t think I should, as a sitting DA, weigh in on what the other DA should do.

Preet Bharara:

But can I ask you this? Are you able to weigh in on whether or not you think the DA will or should seek some period of incarceration?

Mimi Rocah:

So I think if I had to guess, I would say that, an educated guess, obviously, I think he will ask for some much shorter than what people are talking about out there, everyone’s saying, “Oh, Michael Cohen got three years, so Trump should give four.” First of all, Michael Cohen pled to other counts. That was the federal system. New York sentences are, take whatever a federal sentence might be on the exact crime and cut it in half, at least, first time, as Joyce, I think said, first time nonviolent offenders often don’t get any jail time. But I think given what they view as the seriousness of the case, it would not be surprising for them to ask for some. But I think people have to really lower their expectations.

Preet Bharara:

Can we be clear on one point with this group for the listeners, whether or not the DA seeks a period of incarceration, whether or not the judge imposes one, given the pending appeal, Does everyone agree that the possibility of Donald Trump spending time in prison before the election is pretty much zero?

Elie Honig:

Yes.

Joyce Vance:

Yeah. Before the election, absolutely.

Preet Bharara:

Yeah. That’s an important question that people have. Now, what happens in the scenario in which the judge imposes a twelve-month sentence, suspends it because he grants the defendant, Donald Trump, bail pending appeal, then Donald Trump wins the election. He loses the appeal in the spring of 2025. He’s the sitting President of the United States Commander-in-Chief, the appeal is lost. Normally, by operation of law, he would then go to prison for 12 months. What’s going to happen in the scenario that I described?

Elie Honig:

So this is a great hypothetical. I think the-

Preet Bharara:

And it’s not that far-fetched.

Elie Honig:

No, it’s not at all. There’s a 50% or so chance of all that happening. I think the answer is, I can’t give you the constitutional doctrine behind it, but there’s just no way a sitting president gets locked up, especially on a state level case. Now, I guess if Trump wins, he’ll be out of office in January of 2029.

Preet Bharara:

Well, in that one it’s easy. In that circumstance, he just has to do what any other ordinary citizen would do. Right?

Elie Honig:

Which is serve the time.

Preet Bharara:

Yeah.

Elie Honig:

Right.

Preet Bharara:

With the Secret Service in the adjacent cell.

Elie Honig:

I don’t see any scenario where the sitting President gets locked up on a state case.

Preet Bharara:

And how would that work? The judge would just decide upon a motion that I’m changing my sentence?

Joyce Vance:

I think Trump appeals, it gets it into the US Supreme Court, whether that has legs are not, it creates delay, blah, blah, blah, blah, blah.

Preet Bharara:

And Alito and Thomas say there’s no history or tradition of incarcerating a former president from the founding.

Joyce Vance:

I think that’s probably what happens.

Elie Honig:

I’m curious, do any of you think there’s any realistic chance that Trump, let’s assume the scenario pre-set, that Trump would actually have to serve time while sitting president?

Preet Bharara:

I don’t think so. That’s not good. That’s just a crazy scenario policy. It’s a crazy scenario. And I don’t know what the legal justification would be for presidential purposes, but I mean, I’m sorry, this is not going to make everyone happy. But you can’t send the Commander-in-Chief if he’s won the election to the Huskow.

Elie Honig:

I think the legal doctrine is, “It just can’t be.”

Preet Bharara:

It’s a legal impossibility. Can we talk about the trial a little bit? We mentioned already that Alvin Bragg is a friend of three out of the four of us. So was Todd Blanche. Todd Blanche is, I consider a friend, former colleague to you Mimi, and also you Elie. He went on television last night, and I don’t know if he was really tired, but it was not an impressive performance. And talking about how he took the tack that he took. Someone pointed out that Blanche made the point when asked who decided trial strategy, how involved was Donald Trump, and he said he was deeply involved. We made every decision jointly.

Todd Blanche:

Every decision that we made, we made as a team, and not just President Trump and myself, but the whole team. And again, every defendant, everybody who has their life on the line in history will tap their lawyer every once in a while and say, “Hey, what about this? What about that?” Not only did we get along during the trial, but we were on the same page about strategy and about what we should be doing and not doing.

Preet Bharara:

And the point that someone was making was, yeah, he just finished telling the world that he didn’t micromanage anything including payments in the hush money fashion, but he micromanaged his trial. There’s a little bit of a disconnect there. Did Blanche just do the best he could have with the facts and law that existed or did he make some mistakes?

Elie Honig:

I’ll take this one first. Look, I think we all understand as former prosecutors, the notion of podium privilege. Right? This was a doctrine, one of the unwritten rules we had that you always respect the person who’s standing at the podium. He’s or she’s the one in the arena, and they’re the ones who have to make the call. And I think it’s against all of our instinct and training to Monday morning quarterback. But, that’s what we do now. And so, I’ll engage in some of it as it relates to Todd Blanche. Looking back at Blanche’s performance, I think the biggest mistake he made, or let’s not even say that. The thing I would’ve done differently as a lesson I learned at the Southern District of New York, which is pick your battles. And I think I would’ve gone much more thematic and much more narrow and much harder in those areas.

I don’t think I would’ve ever mentioned the words McDougal, or doorman, or maybe even Stormy Daniels. I don’t know that I would’ve even crossed Stormy Daniels. I certainly would not have committed in opening to this tack that he never had sex with her. My approach to all that would’ve been like none of that matters. This case is about whether Donald Trump knew about this financial scheme that Michael Cohen and Allen Weisselberg cooked up. And then, I would’ve just gone all out on Michael Cohen. I would’ve said, “You can’t convict unless you trust Michael Cohen. You can’t trust Michael Cohen.”

And I also don’t know that Todd made the Michael Cohen argument as effectively as he could have. I’ll give you just one example. To me, the fact that Michael Cohen stole $60,000 from Donald Trump, not on the side, but on the very transaction that is the basis of this crime, I would’ve made so much more of that because I would’ve said to the jury, “The prosecution’s entire theory here is he knew. You bet he knew. He knew everything. He was a micromanager. He knew. He knew. He knew. You know what? He sure as hell did not know. And you know for a fact he did not know because he was getting robbed on this very transaction. So he sure as heck did not know everything.” And so, that would be my main argument. So I would’ve been much more focused, less scattershot.

Preet Bharara:

To me, the biggest problem was, and there’s no fixing this because he had a particular client. There’s no conceding anything. You and I, everyone on this conversation has seen defense counsel say, “Look, you don’t have to like my client. You don’t have to like the fact that he had these interactions with Stormy Daniels and others, but it’s not a crime.” And you can see that some of the behavior was unseemly. It humanizes the guy and you draw a fine line of demarcation between unseemly conduct or bad conduct versus criminal conduct. And he wasn’t permitted to do that here.

Mimi Rocah:

I think that’s right. In other words, the trial ended up being about sort of the two most extreme versions. And if he did have this affair or whatever you want to call it with Stormy Daniels and payments were made, then the jury was left almost, they sort of had to buy the narrative or find the narrative to be true from the prosecution because the defense was presenting such an alternate universe. And so, they didn’t leave a lot of room for, “Okay, yeah, maybe this happened, but it’s not a crime as you say.” And I think that could have been more effective. Can I just say one other thing, which is we certainly, as you are and can and should, certainly the legal commentators amongst this group engage in was the prosecution closing too long? How effective was that? And what did Todd Blanche have to work with? And all that. And that’s important.

But I think we also should talk for a minute about the fact that the response to the jury’s verdict, it’s not surprising, but it’s still I think worth mentioning, has been consistently, from including Todd Blanche last night. But certainly all the pro-Trump commentators, Jeanine Pirro was at this last night and others saying that this was a rigged trial, not just in the Democrats brought it, Joe Biden made Alvin Bragg bring it, which is frankly a preposterous accusation, even if you don’t think it was a good charge. That is not what happened. But also the idea that the jury was not fair.

And I find that so problematic for our system because I understand it’s New York, it’s heavily democratic, et cetera. But the jurors who couldn’t be impartial said they couldn’t be impartial and were excused. The jurors who were seated or jurors that are picked the same way jurors are picked in trials every single day in this state, and they took an oath that they could be impartial and liking someone and being impartial are two different things. And listening to the judge’s instructions, which they asked for read backs on to look at the evidence. And so, again, I’m not surprised they’re making this claim, but essentially what they’re saying is juries are not fair, and this jury was picked and sat and instructed in the same way as every other jury. And I don’t believe that to be true, even if you don’t like the verdict. And I find it problematic that they can’t accept a verdict as a fair verdict even if criticizing it.

Preet Bharara:

Look, Alvin Bragg would’ve accepted the verdict if it had gone the other way.

Mimi Rocah:

Correct.

Preet Bharara:

That’s the statement that you put out that I used to put out. Someone pointed out on social media, this is just your reminder that the defense also participated in jury selection.

Elie Honig:

So I want to second what Mimi said here because the theme of my piece for up now for cafe.com, subscribe a good news site, basically says there is a distinction between how we judge the jury and how we can judge the case writ large, specifically the prosecutor and the judge. The jury’s verdict has to be respected. It’s sacrosanct. And there’s a difference between that and criticizing the case. You can do both. In other words, my position is the jury, for the reasons Mimi said, people fled to be away from this jury. It is a difficult job. By all accounts, this jury was attentive, no problems. The questions they asked were smart and focused and appropriate. They reached a verdict. I give them full credit. They were the ones who sat there and saw the evidence. I don’t think anyone’s in position really to say they got it right or wrong. I think this was a case that reasonable people could have seen differently. 12 of them did their job and saw it this way. That’s fine.

I also think you can say consistent with that, that there are lingering questions about the decision to bring this case by the DA. Not just lingering questions, but still as salient of questions as before about whether the DA should have brought this case, whether it was brought in a fair way, whether the judge should have remained on the case. I know he didn’t have to recuse, but I maintain he should have recused. So I think there are still important structural questions that need to be asked that are fair game here that we can ask while respecting what the jury did.

Preet Bharara:

Hear more of our conversation in just a moment.

Joyce Vance:

I want to go back to something that we’ve touched on here and just sort of underscore this point, the jury, and Elie, by the way, I have deference sort of to the legal and structural questions that you raise. I think that they’re important to consider. But for me, the focus today is on the jury and the service that they performed. We’ve all been really in the position of armchair jurors. Right? Reading a cold transcript. The jurors were the ones who sat in that room for weeks and listened to every bit of testimony live saw the witnesses were able to look into their eyes, evaluated all of the evidence, apparently deliberated very carefully based on what we know about questions they asked and information that they asked to see.

And so, when it comes down to the primary function of this trial, deciding the facts, determining if the government met its burden of proving guilt beyond a reasonable doubt, I think something that we should do that we’re not doing enough because we have so many questions, is thanking the jury for its service and honoring that service. It’s a tough job. I know a lot of people think that this case could have come out different ways, that it was one of those zone cases. I don’t think we really know because we weren’t the jurors. We didn’t sit in there and hear everything. What’s important is that their determination, unanimously, every single one of them, including the juror who saw Truth Social as their biggest news source, they were all compelled by this evidence. And I think that’s the important point for all of us to focus on.

Preet Bharara:

Yeah, another lesser point when people talk about this jury and how any jury in Manhattan would be unfair to Donald Trump, this is the place where Donald Trump made his bones, made his fortune, made his fame. He’s a creature of and a larger than life citizen, even though he’s now in Florida, citizen of New York City, Manhattan. His sons claim that he built, falsely, claim that he built the New York City skyline. So I don’t know in what way, shape, or form you could say a Manhattan jury is inappropriate to consider the guilt or innocence of one Donald J. Trump.

Elie Honig:

Can I add on to that? So two things. First of all, Joyce, it’s so funny because if jury speculation was a crime, I would be going away for a long time, as I’m sure we all would.

Preet Bharara:

You’d be a RICOdefendant.

Elie Honig:

Right. Exactly. I’m a serial offender, which I continue to this day. What’s such an interesting nuance? There was all that reporting about the juror who follows Truth Social, but if you actually look at the transcript, he’s not on Truth Social. He said he follows Trump’s Truth Social feed on Twitter, which is totally different.

Joyce Vance:

A very different thing, yeah.

Preet Bharara:

Which we do too.

Elie Honig:

Yes, totally different. And he also said he follows Michael Cohen and Mueller She Wrote. Mueller She Wrote, to me, is like, that’s very, very different. So that’s number one. And to Preet’s point, I think that, again, I think there’s an important distinction between was this case charged in the appropriate fair and constitutional place, New York County, Manhattan. Of course. If it’s going to be charged, it has to be charged there. Donald Trump did not get an unconstitutionally unfair jury. Let me say that a better way. Donald Trump got a fair jury here. I also think though you can also agree, I’m actually interested in what you say. Of course, the orientation of people matters. Of course, their pre-existing feelings and biases matter. And the hypothetical I would throw out, and I don’t mean this to be aggressively rhetorical or anything, I’m actually genuinely wondering, we’ll use Joyce and I discuss this, but let’s use Joyce’s County in wherever. I don’t know the name of your county.

Joyce Vance:

Jefferson County.

Elie Honig:

Jefferson County, Alabama. I don’t know what percent of the vote Trump got there. I would assume it’s over 60 or 70. Don’t you think Trump would’ve had a substantially better chance at a better outcome for him?

Preet Bharara:

Yeah, but you know what? Yeah. Maybe.

Elie Honig:

Doesn’t mean it’s unfair, just a practicality,

Preet Bharara:

But I think that swallows up the point, because who gives a shit?

Elie Honig:

That’s a good point.

Joyce Vance:

That’s the best, most poignant argument-.

Preet Bharara:

Don’t go to a county, right? And in this case, a county in which you made your entire fortune, fame, and everything else and commit a crime there.

Elie Honig:

You are right. That is the best way-

Preet Bharara:

Do not go to that freaking county and commit a crime because you’re going to get the jury that you’re going to complain about and whine like a stuck pig. I don’t have any sympathy. I understand your point, but I have zero sympathy for it.

Elie Honig:

No, I agree with you.

Joyce Vance:

And I want to go even further, Elie, and push back on the suggestion that Trump would get a favorable jury in Birmingham. There would be people on that jury, undoubtedly something like 80% of them who would’ve been Trump voters, maybe Jefferson County where I live is a bad example, but let’s just say neighboring Shelby County. Many people know Shelby County because that’s Shelby County versus Holder, the big voting rights case, and that jury would’ve leaned Trump. But my experience is that jurors listen to and take seriously the instruction that they should decide a case based on the evidence and that they do that virtually all of the time.

Elie Honig:

By the way, to Preet’s point and to both of your points, there are cases where prosecutors have a little bit of wiggle room as to where you charge a crime. It doesn’t really apply to locals, because they have to charge it [inaudible 00:34:59].

Preet Bharara:

There was a change of venue motion brought here. That’ll be one issue on appeal. I feel like in the old days it was granted more often.

Elie Honig:

Yeah.

Preet Bharara:

I don’t remember ever presiding over a case in seven and a half years as U.S Attorney where there was a successful change of venue motion. And Rudy Giuliani when he was U.S. Attorney some decades earlier, taking his name in vain, I believe there are multiple cases that were brought elsewhere because of fear of undue publicity and everything else.

Elie Honig:

We got one Preet. Well, it was actually, this happened before you started, but the John Gotti Jr. trial, Mimi did the first two, I think I did the fourth one. That was charged the fourth time in Florida and Jr. moved to have it transferred up to us. We didn’t want it, but it landed on us.

Preet Bharara:

But those were on different legal grounds.

Elie Honig:

Yeah, yeah.

Preet Bharara:

Before we wrap, can I just say we are not political commentators, we’re not political consultants. We do talk about democracy and how it works in this country and how institutions work in this country, but it seems not right to leave without at least contemplating for a moment the larger question of what this conviction means for the justice system, for the rule of law, for people’s perceptions and also for what might happen in November. If anybody wants to take a gander at that.

Elie Honig:

It’s hard for me to imagine that being a convicted felon could possibly help someone electorally, and so part of me thinks the rational part of me thinks even if it dissuades 1.5% of voters from voting for Trump, that can be decisive and determinative. But we’re starting to see these poll numbers that show it’s equal or even more people are more likely to support it. I’m not sure I believe all those. Anecdotes aren’t great in this, but I’m going to read, if I can real quick, a text that I got from a good friend of mine, of course I won’t name this person. He’s a lawyer, very intelligent person. I’ll just read you a couple of things he sent me. He wrote, “I suspect my reaction as a Republican who loathes Trump and wishes he was not our nominee is similar to those of others who share my views of the man. This verdict is ridiculous, and I move to rally behind Trump because of it. I hate that I feel this way, but I do.”

Again, it’s anecdotal, but I’ve heard that, and it’s sort of consistent with the polling data that we’ve seen. So we don’t know, but that’s my best gander and a political opinion.

Joyce Vance:

You know what Elie? No offense to your friend, but I’m just going to say anyone who feels the need to rally to a racist, misogynistic, anti-immigrant, convicted felon because a jury has voted to convict him, wanted to buy into that trash anyhow. I think that there are some people who will do that, but I’m going to rely on the goodness of Americans and the polling data that says that there are just enough people, folks in the middle independents who will be compelled because a jury, this is not Merrick Garland. This is not a democratic witch hunt. This is a jury of 12 of Donald Trump’s peers in Manhattan who listened to the evidence and found him guilty. I think that the American people are basically good, or at least enough of us are good that he will lose in November because of this, because of Dobbs, because of the other really, in many ways, atrocities that he’s brought about for the American system of government.

Elie Honig:

He may well lose and the conviction may well contribute to that, but I think you’re simply imposing your view of Donald Trump on this person and on tens of millions of others. And look, I personally, you all know I tend towards your view-

Joyce Vance:

No, I got to push back. I think that there’s an objective truth that says that if you want to support the criminal, that’s just a justification for having wanted to be there all along. I don’t think that those people are rallied to support Donald Trump.

Elie Honig:

I disagree with you. Why would my friend lie to me, Joyce? I disagree with you. I think you’re trying to impose your hatred for Trump on other people who don’t feel that way. And this guy hates Trump. He thinks Trump’s said loathsome, and trust me, I get texts from him all the time. But this case and the way it was brought and handled has offended him in a way that’s bothering him even. I don’t think you can, your feelings about Trump are-

Joyce Vance:

I guess my question, Elie, what’s offensive?

Elie Honig:

…. Passionate and truly felt, but you can’t just be other people over the head with it.

Joyce Vance:

What’s offensive about the criminal justice system, I guess, is the question that I would want an answer to.

Elie Honig:

Well, this gets into the subject of my Note today about the decision to bring this charge, the way the charge was structured, the handling of it by the judge, et cetera.

Preet Bharara:

There’s some irony in all this. I don’t pretend to know anything about your friend. I do find it peculiar that you would be in the position of hating Donald Trump, not wanting him to be the next president, not wanting him to be the nominee for your party. But this particular thing causes you to rethink all of that and change your review of who should command the armed forces and be the Commander-in-Chief and be the leader of our country, particularly when, by the way, Donald Trump, it’s not directly relevant, but people have pointed out the fact that on other criminal justice matters, Donald Trump was supportive of execution, took out a full page ad in a paper, I think the New York Times, supporting the execution for the Central Park Five who were unjustly accused. So it’s a little bit rich for anyone to talk about, not a little bit rich, but really rich for anyone to talk about the scandal or alleged tragedy of Donald Trump being railroaded, given how he’s talked about criminal justice issues before in the jurisdiction where he made his fame and his fortune, as I’ve said.

Elie Honig:

But Preet is your view that if somebody has done and said outrageous things, they have waived their right to complain that the system is mistreating-

Preet Bharara:

No, no, no. I think it is. And again, maybe there are a lot of people like your friend. I would venture that, do you think Mitch McConnell now will … I guess they do as a political matter. They have to support him, because that’s what the base wants. But the solution or the consequence of feeling that there was an unfair trial brought upon someone who otherwise politically despise and you think is unfit. I don’t know if your friend thinks this. , I guess the point is I don’t take seriously his position, this unknown friend that he thought Donald Trump was unfit for the presidency and how being convicted by a jury in the eyes of many fair and square transforms an unfit person for the presidency into a fit person who deserves your support. I don’t follow that. I don’t follow that view at all.

Elie Honig:

That’s why he said he hates that he feels this way, and let me, I know we all, sorry, one thing- I tend to agree with both of your, not entirely, but both of your personal views on Donald Trump as you just expressed, but I disagree with your approach to how others should view him. I guess. I don’t think we can just [inaudible 00:41:39] their feelings.

Preet Bharara:

I totally understand how people who support Donald Trump and think he’s the second coming think that this was unfair and will be more supportive of him. I don’t understand how people who have rejected him and think he’s unfit, if that’s the position, now suddenly think he’s transformed into fitness because he was convicted by a Manhattan jury. That is nonsensical to me. No offense to your friend.

Joyce Vance:

Offense to a criminal conviction does not make you a better candidate or a better person.

Elie Honig:

Traditionally. Right. Yeah.

Preet Bharara:

Everyone should listen to the recent podcast I did with Frank Bruni called The Age of Grievance. This is a prime example of that. Everyone is aggrieved, and if you can turn grievance into a political cause, that’s bad for the country, I think.

Joyce Vance:

And I think that’s the point. By the way, we’re arguing about this specific friend and his reaction, but what it’s really a marker for is what American politics have become and how we’ve really been subjected to the grievance of this one man who anytime he faces a setback, it’s the result of unfairness or fraud or people who are out to get him. And that’s what I think is really troubling is that at this point, anyone who previously saw through it would rally behind that banner. I hope that as a country we’re better than that and that this conviction teaches us that it is possible to hold even Donald Trump accountable.

Preet Bharara:

I think we need to end there. Mimi Rocah, Joyce Vance, Elie Honig, thanks so much. We’ll be talking about this, I’m sure for a long time to come. Thanks so much.

Elie Honig:

Thanks guys. Great talking to you.

Mimi Rocah:

Thanks for having me. Great to be with you.

Joyce Vance:

Bye y’all.

Preet Bharara:

Thanks for listening to this special episode of Stay Tuned. Joyce Vance and I will continue to analyze Trump’s conviction and discuss this historic moment in US History on next week’s episode of the CAFE Insider Podcast. To listen, sign up at cafe.com/insider. You can try the membership for just $1 for one month. 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 Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.