Preet Bharara:

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

Cyrus Vance:

I don’t think I’ve ever made a decision on politics, but I see the politics and it’s all around and you’re reading the politics, you’re getting criticized in the politics, so it’s just part of the landscape that you have to navigate.

Preet Bharara:

That’s Cyrus Vance. He’s the former District Attorney for Manhattan, now in private practice. Vance left the DA’s office in 2022 after serving for 12 years. In 2018, Vance initiated an investigation into Donald Trump’s business dealings, but ultimately did not bring criminal charges. Last week, the same office now led by DA Alvin Bragg won the first ever conviction of a former president in American history in a different case. I’m excited to be joined by Vance this week. We discuss his thoughts on the verdict, the politicization of the DA’s case and why Vance did not indict Trump himself. That’s coming up. Stay tuned.

Q&A

Now, let’s get to your questions. This question comes in a tweet from Dana, who writes, “The OLC — why should we care about them and why is their word almighty? They’re not judges, they’re not juries, they’re lawyers who have an opinion. Why should their opinion be seemingly binding?” Dana, that’s a great question and it’s a good issue to revisit. Just to remind folks, OLC stands for the Office of Legal Counsel, which is a particular office, a prestigious office within the Justice Department. It’s led by an Assistant Attorney General who by the way is nominated by the President of the United States and confirmed by the Senate. So it’s an important position within the Justice Department and that person’s job and that section’s job is to provide legal advice to the president as well as the executive branch more broadly including the Justice Department, that’s based on a delegation of power from the Attorney General.

It sometimes referred to colloquially as the president’s law firm. So the OLC provides advice through legal opinions, which a draft in response to inquiries involving complex issues that implicate the executive branch in some way. So as you ask, why are these opinions binding? Well, it sort of depends on what you mean by binding. Generally speaking, binding means something that has the force of law and cannot be ignored or contravened in the federal courts, for example, when a circuit Court of Appeals, that’s a higher court, issues an opinion, that opinion is binding on all lower courts, all district courts in that circuit, meaning a district judge can issue a contrary opinion and judges must decide their own cases in accordance with that higher court’s opinion. Same is true for the Supreme Court with respect to every other lower court in the country, but the OLC is not a court as you point out, but people do still refer to the OLC opinions as binding.

What they really mean is that the OLC’s opinions have historically been treated as binding on the executive branch by the people who operate within the executive branch. That includes folks in the Justice Department including federal prosecutors. Now, as your question implies, there isn’t any formal statute designating these opinions as binding per se, but the OLC derives its authority from the Attorney General and the Attorney General as you know is the top lawyer at the Department of Justice. So opinions from that office bind in the sense that I’ve described the rest of the executive branch. The most talked about OLC opinion that is considered binding on the Justice Department in recent years has been the pair of opinions that basically says that a sitting president can’t be distracted by criminal prosecution because the job of commander in chief is too important.

That’s why special counsel Bob Mueller’s report had the result that it had, that investigation and that report was written with the understanding that even if they found the president had broken the law, he couldn’t be indicted per the binding OLC opinion. Now, we can question and I have questioned the wisdom of some of these opinions, maybe they should be revisited, particularly the one about a president not being able to be prosecuted while in office. But as you point out, they are neither formal judicial opinions or acts of Congress. So how might the judiciary become involved in dealing with one of these OLC opinions like the one about the president?

Well, one scenario is as follows, assuming as I do that the Georgia case from Fulton County against former President Trump does not go forward before the election and Donald Trump gets elected and is president once again, the district attorney I imagine will still proceed with the case not withstanding the OLC opinions that we’ve been discussing. At that point, something has to happen and I would expect the president’s lawyers, the newly elected president’s lawyers to march into court to cite to the OLC opinions and any other analysis they would have in connection with the Constitution and say our system of government cannot withstand a prosecution during the pendency of the presidency and then it would be up to a judge in Georgia and it would probably go all the way up the line in state court and then ultimately to the Supreme Court I would imagine, would be able to adjudicate this question once and for all.

Is the OLC opinion valid as a constitutional matter and as an enforceable matter? There may be other routes to figuring out how an OLC opinion can be adjudicated differently by a court, but that’s certainly one. This is a question in an email from Mike, “Dear Preet, still listening to every episode, you’ve commented that Trump is less likely to go to prison due to the fact that this was his first offense. How would this conviction impact his treatment in subsequent trials though? Would he be treated differently for the January 6th case or the documents’ case due to being a repeat offender or does the fact that those are different types of offenses in a federal rather than state court make this conviction irrelevant? Keep up the great work, Mike.” Mike, thanks for your question.

So I don’t pretend to know whether Donald Trump will receive an incarcerated sentence or not. I think if he does, it’ll be fairly short. As I’ve also said, I think if he does, Judge Merchan is quite likely to hold that sentence in abeyance and grant Donald Trump bail pending appeal so that the likelihood of his getting any prison time before the election is slim to none. You will raise an interesting question though about criminal procedure. Once he has a conviction on his record, assuming that it stays in place and is not overturned, he now has what we informally call a rap sheet, and in the federal system and in most other systems as well, when it comes time to sentence someone on a conviction, the court takes into account a number of things, the nature of the offense, the seriousness of the offense, and the degree of involvement of the offender and that offense if it’s an offense that’s been conducted by more people than one.

The other thing the judge and the court takes into account is the criminal history of the person being sentenced. And if you have a longer criminal history, that usually results in a guidelines range that’s longer, and if you have lesser criminal history, that results in a guideline range that’s lesser. So, the short answer to your question is each conviction that he accrues starting with the one in Manhattan will legitimately increase his exposure to more prison after later convictions. It doesn’t matter whether they’re state or federal criminal histories or criminal histories. This question comes in an email from Ian who says, “Hi Preet. If Trump thinks he has a friendly judge in Aileen Cannon, could he waive his right to a jury trial and have a bench trial instead? Considering his recent conviction by a jury, would he be incentivized to do this now? Love the show,” Ian from Wisconsin.

Now, that’s a great question. As people know in this country, you have an absolute constitutional Sixth Amendment right to a trial by jury, but like lots and lots of rights, that right can be waived just like you have a constitutional right against self-incrimination. In the Fifth Amendment, you can waive that right and you can choose to testify, similarly, you can waive your right to a jury trial. Now, that’s rare, and I discussed in a recent podcast how interesting it is that both sides, both the government and the defense in almost every case choose to put their faith in the jury system. And you would think if it was rigged in some way that there would be more occasions where one side or the other would choose a bench trial. But generally speaking, people prefer the jury. So in this case, Trump could certainly offer to waive his right to a jury trial perceiving Judge Aileen Cannon to be favorable to him and may be favorable in the ultimate sense of finding him not guilty of the crimes with which he’s been charged.

There’s one wrinkle and caveat to that, however, a bench trial has to be agreed to by the government as well. So it has to be by mutual agreement of the defense and the prosecution. As we always used to say in the US Attorney’s office, the defendant is entitled to a fair trial, but so is the government. Just on a practice note, I’ll tell you the experience that I had when I was the US attorney in the Southern District was there was a general policy, I don’t think it was written down that any time a defendant sought a bench trial, we ceded to that request, we agreed, we consented. And the thinking there was we didn’t want to make it look with respect to any particular judge in the district who were repeat players for us obviously, that we didn’t trust them to come up with a conclusion and a verdict that was just and fine and proper and within the law.

We thought that was not a great message to send. There were one or two occasions where we had a little bit of a debate about whether or not we should consent to a bench trial in a garden variety criminal case and ultimately we thought that the posture of the office should be that we believed all the judges of the district to be fair and impartial and capable of rendering a just verdict. So as a general matter, we always consented. Now, what would Jack Smith do if this unusual scenario were to arise? I don’t know. I think he would be within his rights and the government would be within its rights and discretion not to consent given the behavior and conduct and rulings of Judge Cannon so far. I’ll be right back with my conversation with Cyrus Vance.

THE INTERVIEW

As the dust settles on Donald Trump’s conviction in Manhattan, former District Attorney Cyrus Vance joins me to discuss what happens next. Cyrus Vance, welcome back to the show.

Cyrus Vance:

It’s nice to be back, Preet, and nice to have another conversation with you.

Preet Bharara:

So we’re in interesting times. We’re here to discuss largely but maybe not exclusively the recent verdict in The People of New York v. Donald J. Trump. Now, before we get to any of the substance and the themes, I want to let the listeners know break down the fourth wall for a moment. We had asked you to be on some weeks ago as the trial was approaching and as the trial was going on and you as a consummate professional said that there was some outside possibility you might be called as a witness. And so it would not be appropriate to come on and talk about the trial which we respect. Michael Cohen did not have that same view. Can you explain that?

Cyrus Vance:

My position or his?

Preet Bharara:

His.

Cyrus Vance:

Well, first of all, I think it’s really hard to know exactly what to say about Michael Cohen and I don’t mean to be critical, but clearly, he’s a person who takes his own counsel and not necessarily listening to the advice of others. So I take it that he felt compelled to speak out. He’s written two books, he’s, I think, probably been on innumerable interviews and podcasts and I think he’s felt it’s in his interest to speak and speak a lot and speak continuously and try to equal the volume and one messageness of the former president. And anyway, Michael Cohen did what Michael Cohen thought he needed to do.

Preet Bharara:

What would have been your state of mind or level of Aja if you had been the DA still and a central witness at a very high stakes trial coming up was blabbing and blabbing and blabbing about the nature of his testimony, about his desire to see the defendant convicted and explain to the public why it is the case that the prosecutors could not actually gag him?

Cyrus Vance:

In response to your first question, I think based on my experience and probably yours, you want to have some control over the witness’s testimony, both to make sure it goes in the sequence that you want it revealed in when he’s on the witness stand or she’s on the witness stand. And if the future witness is out saying whatever he or she wants to say and some of it becomes fodder for cross-examination at trial on issues of bias, on issues of temperament, and I’m being polite, those are things you don’t want to happen. I mean, we’ve all had witnesses, you have in your career, I’ve had in my career, who were very difficult witnesses with significant criminal pasts.

And I think in all my experiences with those types of witnesses, you want to control them. And I don’t mean control them in a bad way, I just think part of trial’s performance and you want the witness to get up and be as coherent and clear and logical and following the sequence that you want him to talk about as possible. And if your witness is out saying whatever they want to say, and some of it factually based perhaps and some of it emotionally based or inconsistent with the facts, it just doesn’t help the witness’s chances of being viewed maximally as credible by the jury.

Preet Bharara:

You’re also creating all sorts of fodder for cross-examination.

Cyrus Vance:

All sorts of fodder, and I think you saw it in the Trump trial.

Preet Bharara:

That’s happened here, but I guess maybe lay people might not fully understand that as much as you want to “control the witness, admonish the witness,” we didn’t have when we were in those jobs actual authority to cause someone not to speak.

Cyrus Vance:

Yes, it’s true, it’s true. You don’t have actual authority, and in some sense, you hopefully develop a relationship, a mutually respectful relationship with the witness where you’ve explained why it’s important, why you are asking him to abide by your requests that he or she not speak and explain why, but that witness can walk out the door just like a grand jury witness can walk out of the door. Grand jury proceedings are secret, but when the witness leaves the grand jury room, the witness and only the witness is free to say whatever the heck they want about what they were asked about. And there’s an analogy with a trial witness as well. You don’t want them talking irrationally or in a way that’s harmful to the case.

Preet Bharara:

What’s so odd about that and then we can move on, but we’ll end up coming back to Michael Cohen when we talk about the trial and the evidence that was brought to bear is that his interests and his stated interest, honest, genuine stated interest in having Trump be convicted, was aligned with shutting up, right?

Cyrus Vance:

Yes.

Preet Bharara:

He was actually not advancing his own stated and admitted central interest by being so mally all the time. So go figure.

Cyrus Vance:

I’m sure it was very frustrating to the prosecutors who were managing the case and probably concern to the district attorney, Alvin Bragg, but the truth of matter is as you also know that you can’t predict everything that’s going to happen in a trial and stuff happens and you have to just roll with it.

Preet Bharara:

There was testimony that Michael Cohen met with prosecutors more than 20 times in preparation for his testimony. Is that an unusually high number given the nature of the testimony?

Cyrus Vance:

I don’t think it’s an unusually high number given the witness-

Preet Bharara:

Right. I think yeah.

Cyrus Vance:

… I guess. I mean, I do believe that I look back on again some of those cases where I was calling a witness who could have been engaged in homicides previously or drug dealing or violent crime, and in long-term investigations, I’m sure I’ve met with some of the principal witnesses as one of the trial attorneys a dozen or more times. So 20 seems probably more than I would recall in personal experience, but he’s been speaking with prosecutors for a number of years now and different offices, well, different prosecutors from the same office. So he’s someone who has been asked to speak on a number of occasions as well. So I think it’s just the prosecutors felt that whatever the number is, we’re going to do it. Yeah.

Preet Bharara:

Another question I have is generally one of the criticisms or accusations that has been lodged by Donald Trump both before and after the verdict has been even though the Manhattan DA’s office is an independent freestanding local prosecutor’s office, the DA’s office, not in the federal system, that Alvin Bragg was directed to do all this by Joe Biden and his administration and Joe Biden’s behind this. So just so people understand the nature of the accusation, on how regular basis did you take direction for Barack Obama when you were the DA? Was it weekly? Was it monthly?

Cyrus Vance:

Well, of course, the answer is never, nor from President Trump. When I was the DA as well and we were investigating his business enterprise. It would be totally unexpected and would be viewed as improper.

Preet Bharara:

I have a question about what you think the case means. We’ll talk about what the case means for the country and for the rule of law and those sorts of big ticket issues, but you were the DA in that place for 12 years and you understood the culture of the place, the feelings of the people who work there about the cases that were brought, those that were successful and the few that were not as is inevitable in any prosecutor’s office. Do you have a sense of what this case and the result means for the office and the people who work there?

Cyrus Vance:

I think the case means a great deal. I think it reaffirms several things. One, it reaffirms the importance of having state and federal prosecutors, and Mr. Bragg, his office in relatively short order, when they decided to focus on the issues that ultimately became the charges at trial, they put together I think a very tight indictment, a really well-designed and executed trial exhibits argument, witness selection and witness sequencing. I know the lawyers, or at least I know many of the lawyers well who tried the case and were on the trial team and I think it shows that as one would hope that there is a high level of competence and quality and I would argue integrity in not just federal offices around the country but state offices.

And I think with the Trump case in particular, it shows the importance of having prosecutors who are independent from the federal system and direction by the head of the federal government, the president, you may remember, Preet, when we were beginning to investigate, and you and I overlapped obviously on these cases in a certain way, but when we subpoenaed tax records from the Trump organization and the Trump moved by suing me in the office into federal court, to my surprise, joining the president in his personal capacity was the Department of Justice and the Solicitor General’s office. And so you see there the power that can be brought to bear when one is investigating a president.

And to me, it was a bit [inaudible 00:20:02], perhaps not totally unexpected, but investigating a president, there are a lot of protections around the president and I think perhaps justifiably so, but when one is investigating the president, it is not like investigating anybody else because they become protected by virtue of the enormous significance of their office. And in Mr. Trump’s case, I think in fighting our case, he abused that, did not serve him well in the end. But it’s important that in cases where one believes justice requires a prosecution, as I think Mr. Bragg did and does and achieved, it’s important to have a state system that is not subject to the whims of the Chief Executive.

Preet Bharara:

Can we clear something up quickly? Noted jury and former presidential candidate, Vivek Ramaswamy, has been saying on social media and elsewhere in the last few days that because there was some talk of and some implication of a federal crime here to ratchet this thing up from a misdemeanor to a felony, that that means that President Trump, if he gets elected again, can pardon himself even though it’s a state crime. Can we put that to rest, please?

Cyrus Vance:

We can put that to rest.

Preet Bharara:

Okay.

Cyrus Vance:

I’m not sure we can put Mr. Ramaswamy to rest, but he’s incorrect as a matter of law. But there are a lot of things being said that are incorrect as a matter of law, and that’s because it’s now moved from the courtroom to the streets into politics.

Preet Bharara:

I mean no disrespect to the Yale Law School, but Vivek Ramaswamy is a graduate of that esteemed law school and this is his legal analysis, which I suspect he knows better like a lot of people do.

Cyrus Vance:

Yes. I mean, it’s easy to say. A lot of the criticisms of the most recent prosecution are really without legal foundation, but they’re good talking points and you’re going to hear a lot of them in the next four months.

Preet Bharara:

Yeah, a lot of them from non-lawyers, and even if from lawyers, non-practicing lawyers and even from practicing lawyers, non-criminal law practicing lawyers. I want to get to those when we talk about the likelihood of success on appeal. But before that, can we just clarify something else so people understand what you oversaw and what you didn’t oversee? So there came a point in time, am I correct, that you and your office were investigating in a serious way in connection with potential criminal charges, the exaggeration of valuation of Trump properties financial fraud, and you had two lawyers from the outside including Mark Pomerantz, an alum of the Southern District of New York, and that case had not concluded or the decision had not yet been made to indict by the time you left office and Alvin Bragg came in and then Alvin Bragg decided not to pursue those charges?

Cyrus Vance:

Correct.

Preet Bharara:

He pursued these charges with respect to falsification of business records in connection with election interference as he describes it. Did you have any role in overseeing this set of facts and these possible allegations and did you ever make a decision about them?

Cyrus Vance:

Preet, I am going to reserve answering that question because I’m careful of trying to maintain the confidentiality of our internal discussions within the office. I’m not sure whether I’m legally bound to or not, but I’m just mindful of it. What I have said is I think we looked at everything, and ultimately for a number of reasons, one of which I think we were deferring to the federal authorities after Mr. Cohen’s plea, and then that ultimately the federal authorities did not go forward and we came back into the case, and in the intervening time period, we had really evaluated all aspects of the investigation and we felt that a financial crimes investigation was warranted. And it’s that investigation which took us to the Supreme Court twice and where the Supreme Court reaffirmed the principle in Trump v. Vance, which was interesting to read that…

Preet Bharara:

Trump v. Vance, it sounds like an MMA fight.

Cyrus Vance:

Yeah, that even a sitting president is not immune from investigation by a state prosecutor for misconduct that may have occurred prior to him becoming president. So you asked me again why was it important? I think going to the Supreme Court and having that reaffirmance and the enormous effort that it took us, enormous effort that it took us to get the tax returns and the financial records, which I think in some sense are the foundation of the cases that followed. If there wasn’t a state prosecutor, wouldn’t have happened.

Preet Bharara:

I’ll be right back with Cyrus Vance after this. Let me ask you another inside baseball kind of question, which you may or may not be able to answer. Did you not have enough time to finally send your prosecutors in to get an indictment on the financial fraud case or did you, given the waning amount of time, defer to your successor?

Cyrus Vance:

Well, I think it’s important for folks who care about what happened and what didn’t happen. We have to remember that for a year and a half plus whatever it was, we were in the midst of COVID and complex white collar investigations required grand juries to subpoena witnesses to testify, subpoena records to testify, and for the period in which the city was going through COVID and the court system was operating essentially with a tiny heartbeat as opposed to a robust 10 grand juries, grand jury judges making rulings on investigative motions. It was very hard to move forward. And so that ate up time in a way that people probably don’t realize. I mean, they know how it affected their lives, but they don’t necessarily care or understand how it affects criminal investigations, and the Trump investigation was smack in the middle of that time period. In addition, we, as I’d said, had deferred to the federal prosecutors for a period of time.

So there were chunks of time that was somewhat dormant out of, I would just say, comedy, and then catastrophe, which was the COVID. But once we had the tax records in hands by order of the Supreme Court, it was four months and only four months before we filed the indictment against the Trump organization for systemic tax fraud and Weisselberg. At the end now, I had six months left in the office, and I continued really, we continued our investigation until the very end, but it was clear to me that we were not going to complete our investigation in time, that ultimately I knew what I felt should happen, but that really didn’t matter because a new day was coming in and what mattered what was he thought should happen.

And when he came in, he chose to shift direction to not pursue the financial fraud investigation, which was I think the Attorney General’s lawsuit was the civil counterpart. And I just want to be clear that I think Alvin Bragg and his team did an amazing job, and to the degree that I haven’t said it, I want to reaffirm it, very tough. Obviously, a lot of negative attacks, political attacks, personal attacks, racial attacks, and he steward this investigation which fit his priorities to a successful conclusion, which by no means was certain.

Preet Bharara:

So it wasn’t a part of your decision making that you didn’t want to settle your successor with a very weighty case and wanted to give him some ability to make his own mind up about it. It was the running out of clock.

Cyrus Vance:

Well, I think it was given where we were in the time that we had, it was going to be his decision and period, full stop no matter what I thought.

Preet Bharara:

You mentioned Allen Weisselberg, who you charged criminally, what was your level of expectation or hope that he would flip?

Cyrus Vance:

I thought we felt the case was strong. The financial crimes indictment against the Trump organization and Mr. Weisselberg, it was a very strong case. The evidence of double bookkeeping and tax fraud was significant and clear. Often in those circumstances, an individual will want to cooperate if he believes that that can less or mitigate possible punishment for himself. And we all know that Mr. Weisselberg not just was convicted there, but ultimately pled guilty again recently before Judge Merchan for perjury charges, I believe, in connection with his testimony in the Attorney General’s case.

And none of that moved Mr. Weisselberg to want to cooperate with the prosecution and he didn’t. So I would have said under ordinary circumstances, the expectation would be reasonable that he would want to cooperate. But Mr. Trump runs a very insular, tight organization and appears with a lot of not just control but also loyalty. And Mr. Weisselberg, I think, has made the choice that it’s more important for him to not cooperate than it is for him to cooperate for any kind of leniency. And I don’t know whether Mr. Weisselberg has received money. I have no clue, but maybe the tax records will show that.

Preet Bharara:

Maybe. So there comes a point when your successor, the new district attorney, Alvin Bragg, presumably gathers together his team and they decide they’re going to indict Donald Trump on this set of charges. Obviously, you weren’t there. I wasn’t there, but we’ve been in situations like that before on a number of occasions, explain to folks, how that decision is made, how deliberative it is, what are the considerations, how high elected of success do you want to have if you’re the DA before you bring a case with that enormity?

Cyrus Vance:

Well, from my experience with our own investigation ultimately of the president, his company and the ultimate indictment of his company, every step was looked at very, very carefully. And it’s not that we are casual in other cases because I don’t think we are.

Preet Bharara:

Right.

Cyrus Vance:

But I’m often asked, “Well, do you think about politics when you’re doing an investigation?” I don’t make decisions or I don’t think I’ve ever made a decision on politics, but I see the politics and it’s all around and you’re reading the politics, you’re getting criticized in the politics. So it’s just part of the landscape that you have to navigate. And your job, I think, as the principal, as the elected official or the appointed US Attorney is to take the weight of those political concerns off your team and make sure that they feel that you’re having robust discussions with them about all aspects of what we need to convict with the quality of evidence. Are we going to get there? What is the likelihood of success?

You want everybody to be thoughtful, analytical, serious and mature all along the way, but your job, my job is to absorb the politics and not let it infect the decision making of either the team or the office and nor me, and I think like the free throw shooter on the basketball court who’s in a professional game and there’s a thousand fans behind the hoop and they’re all trying to distract his attention by waving white flags. The job, I think, ultimately that you had and sometimes that I had is you have to try to shut all that out and just focus on the job at hand, which for the player’s getting the free throw in and for the DA is getting the case responsibly managed throughout the process.

Preet Bharara:

A little more difficult than a free throw.

Cyrus Vance:

A little more difficult.

Preet Bharara:

A little more difficult. Going back to the likelihood of success, and I know you’re not going to answer this, but I want to see if we can get some more specificity because I don’t have an answer either, but if you went around the room and said, after you’ve talked about other considerations in connection with bringing these charges and you said, what do you think is the likelihood of prevailing on these charges at trial? What is the number that you wanted to hear before you charge a former President of the United States? Is it 51%? Is it 98%?

Cyrus Vance:

I think you want proof beyond a reasonable doubt. Now, obviously that’s in the eye of the beholder, but you’ve had enough experience after 30 years in the federal system or the state system or as a trial attorney, you want quality and you want it to be convincing and you want it to appear apolitical and you want it to make sense that it tells a story that the jury will understand and you want to get it right. You don’t want to charge the President of the United States or his company or you don’t want to get it wrong. So I would say this, you have to be convinced that the proof can be presented and accepted by a jury beyond a reasonable doubt.

And that’s not more likely than not 51%. It’s not certainty 100%. You’re operating in a gray zone where it’s your judgment that matters most and this case is going to be fraught, it’s going to be criticized. Is this case nonetheless of such significance and is the evidence sufficiently credible and believable that I want to put my office and its reputation at risk in the way you do when you charge or you go to the Supreme Court against the president or you go to court against the president?

Preet Bharara:

Yeah. So the main charge, and it gets complicated because they figured out a way legally and appropriately under the statutes to elevate a misdemeanor to a felony. But the basic misdemeanor falsification of business records, how commonplace is that charge?

Cyrus Vance:

Very, very. I mean, in the Manhattan DA’s office, somewhat uniquely in terms of when you look at state offices nationwide, it has a very robust white collar practice. We have about a hundred lawyers doing white collar investigations. In some sense, we are set up a version of the Southern District of New York if you’re trying to comparable. I have nothing but the highest respect for the Southern District of New York. So that means I think well of us too. But we are a little bit more like a US Attorney’s office than a DA’s office in for example, a smaller community or a smaller city.

Preet Bharara:

So the bringing of falsification of business records, charges are common, you say?

Cyrus Vance:

Common.

Preet Bharara:

Are they common as a standalone set of charges?

Cyrus Vance:

It can be.

Preet Bharara:

Or are they more often brought alongside other charges?

Cyrus Vance:

I think they can be both standalone and brought along others. I think it is not infrequent that false business records would also involve economic fraud of other kinds, whether it’s tax fraud or grand larceny. The false business records are as misdemeanors filed on their own, not the most serious charge that one could bring. But those kinds of offenses do occur sort of under the umbrella of other offenses like grand larceny.

Preet Bharara:

Right. If you’re committing fraud generally or grand larceny generally?

Cyrus Vance:

Some along the way, you filed a false business record.

Preet Bharara:

Yes, exactly. Now, to elevate that charge from a misdemeanor to a felony, the people have to prove that the falsification of the business records was done for the purpose of concealing or committing some other crime.

Cyrus Vance:

Right.

Preet Bharara:

Is that also commonplace?

Cyrus Vance:

Not as much, but not entirely unique. We, as you may recall, because you and I worked jointly on some large bank cases involving sanctions and at least in one plea of a major bank, that was the basis of the charge, which is false business records in conjunction with trying to evade sanctioned policy and law.

Preet Bharara:

Okay, so we’re just a little bit more in the weeds because there’s been a lot of discussion. I think a lot of misunderstanding about the law here and the prospects for an appeal. So you bring the misdemeanor, falsification of business records, it’s a felony if it’s done to commit, reconceal some other crime here. The prosecutor said that other crime was the promotion of someone to office by some unlawful means, and then there were a few choices of what those unlawful means might be, falsification of other records, tax violation or some other election crime and some of the criticism that has been brought to bear here, and Trump has talked about it and his lawyers have talked about it as well, they should have specified with more concreteness what the unlawful means might be, and more importantly, not to get too much in the weeds, again, the jury was not required to find unanimously as to which unlawful means was the case here. They had their choice.

Cyrus Vance:

Right. They had three choices.

Preet Bharara:

Everyone has to be unanimous on whether or not the statute was violated or account was proven, but within that, all they had to believe was there was this further crime intended. And that seems like a reasonable criticism, right?

Cyrus Vance:

Right.

Preet Bharara:

The defense should get noticed. They should have the opportunity to defend themselves with great specificity, and on a surface level, some people might say, “Well, shouldn’t they all agree on which illegal method was used?” Which unlawful means was used. And you made an analogy to a statute, a homicide statute. Do you want to explain that?

Cyrus Vance:

Well, I think I made an analogy to the burglary statute.

Preet Bharara:

Yes, the burglary statute, sorry.

Cyrus Vance:

Which I think isn’t exactly the same, but it’s an indication that the concept that you’ve just articulated is not foreign to New York law. So in a burglary statute, a commercial burglary is entering a commercial premises with intent to commit a crime therein, unlawfully entering, and intending to commit a crime therein. The same for residential burglary, although residential burglary is more serious, it’s elevated to a class C or B felony. But the law does not require the prosecutor to identify what crime that the defendant intended to commit in the apartment, whether it be grand larceny, whether it be assault, whether it be any other. So really in one of the most frequently charged crimes in the state of New York, commercial and residential burglary, what is required to be proved is that there was an unlawful entry with intent to commit a crime therein of the dwelling of the business. So that, I think, at least pretty much sums it up in terms of the concept is actually utilized every day.

Preet Bharara:

Are you confident that on that point the conviction will be held up?

Cyrus Vance:

I think Judge Merchan is a very careful judge. I think the DA’s office thought this through very carefully. There’s not much written law on this precise subject of false statements, misdemeanor charges being elevated by a federal crime that’s going to be litigated. I will tell you this, Preet, I don’t know how the Supreme Court’s going to rule on that.

Preet Bharara:

You think it’ll get up to the Supreme Court of the United States?

Cyrus Vance:

Well, I think it will get up to the Court of Appeals.

Preet Bharara:

Right. We should clarify something for folks. The next level of appeal is the first department and then the final level of appeal within New York state is called the Court of Appeals. Longtime listeners will know this, but the lowest court in New York is called the Supreme Court and the highest court is called the Court of Appeals. Am I correct? Because this is another thing that Trump has been saying, and I can see it in the chyron of cable news as I’m speaking to you, even that the Trump folks think they can take this case immediately to the Supreme Court. Are you aware of any mechanism by which they can get a hearing in the Supreme Court without going through the state system first?

Cyrus Vance:

I’m not, but that certainly doesn’t mean they won’t try, because you know as an effort to try to delay the trial that just occurred, there were multiple filings of lawsuits in an effort to try to get the trial date off the track, but I’m not aware of any direct appeal to the Supreme Court under a conviction of an ordinary state statutes.

Preet Bharara:

Right. So it’s going to take a while?

Cyrus Vance:

Well, it’s going to take a while, but that said, and in New York state to be clear, there was an appeal as of right to the intermediate level appellate court. But if the appellate court affirms the conviction, then the defendant can apply to the New York State highest court, the Court of Appeals for them to take the case and like the United States Supreme Court can or cannot take the case. But ultimately, the law books are filled with cases decided by the Supreme Court, which deal with state issues, and we have two systems, a federal judiciary and a state judiciary, and the Supreme Court sits on top of both those systems. So one can get to the Supreme Court through the state system, but it usually isn’t quick. When we were litigating against the president in 2021, the federal courts really moved our case, but that means it was a matter of months, not weeks.

Preet Bharara:

What about some of these other issues that are almost certainly going to be brought up in an appeal, the fact that Judge Merchan made these small donations, his daughter worked for a pro-democratic outfit and he didn’t recuse himself the denial of a motion to change the venue, the sort of salacious testimony on direct examination of Stormy Daniels, any of those things give you any pause or have any sticking power you think?

Cyrus Vance:

I think, again, just based on experience, but recognizing that this is an unusual case, I don’t think that Judge Merchan’s de minimis contributions it will prove to be irreversible error. He also had this situation reviewed by courts in New York to give him guidance on whether or not he should recuse himself in the courts.

Preet Bharara:

That’s a pretty powerful card in his favor. Is it not?

Cyrus Vance:

Yes. He didn’t hide his hand or he played it straight as one would expect with Judge Merchan. So I think not only are the amounts de minimis, some New Yorkers spend more a day on a cup of coffee, on coffee, than Judge Merchan contributed in presidential elections. As to the salacious testimony, just so your audience understands, if it was an error, Courts of Appeal are looking for whether or not the judge immediately instructed the jury what to do about the testimony they just heard. And I think, correct me if I’m wrong, Preet, but I think in this case, there may have been an instruction. I wasn’t in the courtroom, but that typically happens, and I would probably imagine there was a curative instruction, but the answer is no. Generally speaking, I don’t think any of them are blockbusters that would cause a Court of Appeals to disregard the unanimous verdict of a jury in a complicated case where this bit of evidence, whatever the evidence was in the overall thing, overall scheme of things was not central.

Preet Bharara:

If you had been the DA presiding over this trial team, would you have required Josh Steinglass to give a much shorter summation?

Cyrus Vance:

No, I think Josh is an excellent trial attorney. I mean, he’s really a superb.

Preet Bharara:

It’s interesting, right? The armchair lawyers among them largely praised the conduct of the trial team on the prosecution side in many respects. Also thought the summation was strong, but I got a lot of texts from former prosecutors saying it was a tad long. But you thought it was just…

Cyrus Vance:

I think courthouses and offices sometimes develop their own legal culture and norms. I think we tend probably because we are prevented, we are not prevented. You tend to write more concisely in federal briefs. They’re shorter. I think for that reason they’re sometimes often better and we can be turgid and sometimes long-winded because state court doesn’t…

Preet Bharara:

Doesn’t give you the time to be more brief, right? [inaudible 00:45:55].

Cyrus Vance:

Who knows? In any event, I thought that Josh knew what he was doing.

Preet Bharara:

Yeah, well, look, it had the desired outcome. So sentencing is coming up, do you expect… And I understand that the practice is a little different in your jurisdiction than it was in mine, in ours, prosecutors could get away with being a little bit sort of either ambivalent or vague in what we were recommending the judge do with respect to sentencing, and we could sort of leave it in the hands of the court. And we had Mimi Rocah in the adjacent jurisdiction of Westchester County saying that the judges in Westchester in state court really want to hear a specific recommendation as to sentence from the people. Do you expect that the DA’s office will make a very specific recommendation as to sentence? And if so, what do you expect that recommendation to be?

Cyrus Vance:

It is the practice, now, that you reminded me, it is the practice in state court that judges do want a specific recommendation. Why that is, is a bit of a mystery to me. When I came back to the office after practicing in private practice for a couple of decades, and a lot of it in federal court, it did strike me as very different than the federal. So I think the judge will want to hear what the DA has to say in terms of a specific recommendation.

Preet Bharara:

And so how’s the DA thinking about it? They’re contemplating what kind of specific recommendation to make. Are they taking into account what they think is reasonable that the judge will do? Are they paying no attention to what the judge might do and just proposing what they think is right? How are they thinking about that recommendation?

Cyrus Vance:

Well, I think everything is intermixed because they all go into a determination of what you think, A, the judge’s practices, what he or she needs to hear from you in order to actually listen to your recommendation and evaluate it. They’re also looking at the case, the defendant, the moment, I mean, this is about as rare a situation as you can get. Former President Trump is appearing before Judge Merchan for sentencing four days before the Republican Convention where he will be nominated ostensibly to be the Republican candidate, which is four months before the general election, November. So for Judge Merchan to sentence former President Trump to jail, given that scenario and what’s on the table would surprise me, but I don’t mean to be presumptuous at all, but it would surprise me.

Preet Bharara:

What’s it going to be? Do you expect the DA’s office will recommend some period of incarceration for the defendant?

Cyrus Vance:

I don’t know. I don’t know, and I wouldn’t want Alvin to call me up and say-

Preet Bharara:

I know, you’re being a good sport.

Cyrus Vance:

… “What you’re doing? What are you doing?” I think yeah.

Preet Bharara:

You’re a private citizen now, you can [inaudible 00:48:43].

Cyrus Vance:

I’m trying to be clear that my personal opinion is I don’t believe incarceration before the general election is decided is in order.

Preet Bharara:

Isn’t it the case that Judge Merchan can decide? I think that based on the conduct, the lack of remorse, the significance of it, the 10 violations of the gag order, et cetera, et cetera, et cetera, and for deterrence purposes and retribution purposes, I think a small period of incarceration six months is necessary. But I think there are enough issues on appeal that I’m going to grant bail pending appeal. So you have on the books a six-month sentence for example, hypothetically, but you don’t want to foul of this concern about the election or anything else because that won’t be resolved as we’ve said for some time. Do you think that’s how the judge might be thinking about it?

Cyrus Vance:

Well, I think that would be certainly a reasonable way to proceed if the judge thought prison was appropriate. The judge, as I think the listeners know with an E felony, which is the lowest in the state system, the judge can go as low as what’s called a conditional discharge, which is essentially stay out of trouble and can go as high as four years maximum indeterminate sentence. But what you’ve proposed, which is whatever the judge decides, if the judge does decide jail is appropriate or home detention or weekends in Rikers Island, the imposition of that sentence can be stayed until either appeals are decided or until a later point in the appellate process, like after the election is held. If the former president is reelected and is the duly elected president next January, I would find it next to impossible to think that he would be sentenced to jail.

Preet Bharara:

So he gets away with it again, that’s how people would say who are listening.

Cyrus Vance:

Well…

Preet Bharara:

I thought no one was above the law.

Cyrus Vance:

Well, no one is above the law, but presidents…

Preet Bharara:

One guy is.

Cyrus Vance:

When I say that-

Preet Bharara:

Presidents are.

Cyrus Vance:

… there are protections around the president while he or she is president, that are frankly necessary.

Preet Bharara:

Yep. Is the following analysis or observation fair that given the high stakes nature of the prosecution, given how significant the prosecutors kept insisting the case was, how significant the misconduct was, how it relates to the interference in an election, which gives it a greater dimension, the level of resources that they put into the case, the amount of expense it took to bring the case and try it, that it would be unusual or odd for the government to be satisfied with a non incarceration sentence?

Cyrus Vance:

I think that is that would be so in the average case, as I said earlier on the show that you listened to, I think Judge Merchan would have reason to think about what’s the appropriate consequence in addition to the statutory punishment from sentence for someone who he is found in contempt 10 times in the course of a five-week trial. But I don’t think Judge Merchan is… These are unique circumstances, the fact he will be a presidential candidate in a matter of weeks and may be the future president. None of this is lost on Judge Merchan, as he said, as much during the trial itself. So the usual way one would approach a white collar case, even a significant one. This because of who the party is, is in a class of its own.

Preet Bharara:

Do you think the public would have benefited, had cameras been allowed in the courtroom?

Cyrus Vance:

I do for several reasons. One, because I think a case like this is the best vehicle imaginable to educate the public about what happens in courtrooms, about the process, about the law, about the quality of the judiciary. So I think there is a strong educational piece that is really integral to citizen education and we don’t teach that anymore, but cameras in the courtroom would provide the best civics lesson imaginable, wherever you are in the political spectrum. And secondly, I do think cameras can cause parties in the case to play to the camera. I have tried cases with cameras in the courtroom that were sort of highly visible cases, but I find the lawyers behave and the cameras disappear into the background very, very quickly. And then you have a public record of what’s happening.

Preet Bharara:

Do you think Donald Trump would’ve closed his eyes less frequently had there been cameras in the corner?

Cyrus Vance:

I’m not sure. I think he was trying to send that message through the reporters.

Preet Bharara:

Are there any other reforms you think are needed? This is a small thing and sort of another inside baseball thing that I’ve talked about on the podcast. One of the first things that the jury asked for was a set of the instructions to be read again. And it’s a peculiar feature of New York law, unlike in the federal system and many other places, that even though the jury instructions are very important, and even though all the other exhibits get to be sent back, a laptop was provided with no internet service so that any exhibit could be pulled up without bothering the court or the parties. Jury instructions aren’t sent back. Do you have a view on that little issue?

Cyrus Vance:

I do have a view on it because I’ve been in courts, obviously, federal courts where they are sent back, and I think that’s a fine practice, and whatever the concerns are from the New York state perspective, I think the better practice is to give the jurors what the law is. Now, the courts may be concerned that there are specific statutes that talk about what jurors can review in the jury room, and the written instructions may not be on that list of the court rules. So it may be that it requires more than just a judge deciding, I want to do it this way. But these differences in local practice are very interesting that you’ve identified one. When I moved to Seattle and tried cases in Seattle, at least in front of one judge, the chief judge of the federal Western District of Washington, he wouldn’t permit read back of testimony.

Preet Bharara:

Oh, no.

Cyrus Vance:

So jurors, it could be a month, two month, three month trial, and the judge would not permit them to hear again what the witness said, read back by the court reporter. Again, their court has its reasons that they’re subjective. I don’t want any particular piece of evidence to be highlighted over others, but part of the…

Preet Bharara:

I don’t agree with that.

Cyrus Vance:

Part of the beauty of the systems we have is that they are different, and part of the frustration is that they’re different.

Preet Bharara:

You are a unique person to talk to about this because you’re the immediate predecessor to the district attorney who brought these charges and presided over the trial, is there anything from your perspective having been in that spot that causes you to have some other observation that you may not had made already in this interview?

Cyrus Vance:

I think it would just I jump on a number of the high level thoughts you were asking but I just want to end on, as the former head of this office and as someone who started out in this office many, many, many years ago, I’m proud of the work of the office, and I think the office has had a tradition and a history of doing the complicated and the difficult and doing it with honesty. And I think despite criticisms, I think the office has acquitted itself really well and that District Attorney Bragg has acquitted himself very well.

Preet Bharara:

Fine words, I will say. I’ve always thought it was interesting when prosecutors use the verb acquitted in that sense.

Cyrus Vance:

That’s because we…

Preet Bharara:

And are not allergic to that word.

Cyrus Vance:

No, we’re not.

Preet Bharara:

That’s good.

Cyrus Vance:

We like it.

Preet Bharara:

Cyrus Vance, thanks so much for your time and your insight. I really appreciate it.

Cyrus Vance:

Thank you so much, Preet. Talk to you soon.

Preet Bharara:

For this week Stay Tuned bonus for insiders, I answer a listener question that has come up often. Can Trump claim ineffective assistance of counsel despite the fact that he picked and likely directed them? To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Cyrus Vance.

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.