Advisory Opinions - Indictment Watch Live: Trump's Guilty Verdict

Episode Date: May 31, 2024

In an emergency live dispatch, Sarah and David discuss the historic verdict in Trump's New York hush money case. Expect to hear sentencing expectations, appeal efforts, and how voters will reach. Show Notes: -Mike and Sarah’s Collision newsletter on the outcome of the case Learn more about your ad choices. Visit megaphone.fm/adchoices

Everyone's got a thirst, a drive to be the next big thing, to put the world on notice. If you answer when your thirst calls, Sprite's for you. Sprite's for the makers and creators, the visionaries putting in the work to build their dreams. Whether you're shooting a cinematic masterpiece on your phone, filling notebooks with sketches, or up all night turning your bedroom into the booth, thirst is everything. Obey your thirst. Right. Hey David, welcome to a special emergency

and live episode of Advisory Opinions. I love it. I love it. I'm glad we're doing this. And have we already gotten a comment from Jonah? Gracie is on my lap, Pippa by my feet. I'm just so pleased that David French, our special guest, could be here tonight. I'm Sarah Isger and we have a verdict in the Trump case, guilty on all 34 counts of falsifying business records.

So, first of all, David, are you surprised? No, I'm not surprised. Now, to be fair, I wouldn't have been shocked at an acquittal either. I don't tend to go into jury deliberations with really strong feelings one way or the other. I think overall between the prosecution and the defense, the prosecution accomplished what it wanted to accomplish and the defense, I think, made some missteps. So I'm not surprised by this verdict, but I wouldn't have been stunned at an acquittal either. I did not think this was slam dunk. It was a pretty just turn around also. When they came back and said that they had a verdict on Thursday afternoon, I was like, oh, that's guilty.

Yeah. Oh yeah, yeah, yeah. I thought that there was a really good chance for a hung jury. I did not think that the prosecution met its burden on all the elements. And just a reminder to folks, right, it had to be the false records. So legal services had to be false. Two, Trump had to cause or direct that false entry into the books.

And three, he had to do it with a fraudulent intent. Like he had to know that they were false, and for the purpose of concealing another crime. As in, if investigators came, I don't want them seeing my crime-iness. So it was interesting because on the one hand, I felt like the judge in this case, basically every ruling went to the prosecution, which I talked about really early on that I think that's probably unfortunate if you're

a prosecutor, because what that means is even if you get your conviction, there's now a whole lot of avenues for appeal. Compare that to what's going on in Florida, where Eileen Cannon basically rules exclusively against the prosecution. If you feel really strong about your evidence, which they should in Florida, where Eileen Cannon basically rules exclusively against the prosecution. Right. If you feel really strong about your evidence, which they should in Florida, then there's actually something kind of helpful about that because if you get that conviction, there's nothing on appeal. So it was also one last thing was interesting to me that the defense kind of didn't really

put on much of a case. So they definitely in their order of operations based on their behavior, their first choice was an acquittal or a hung jury, I'm sure. But the second choice was definitely a conviction over the third choice, which is defending yourself, which is interesting. It's not what you would normally see, especially in a white collar criminal case like this.

And more on that, I think when we talk about what's next. So what's next? July 11th will be sentencing. What do you expect from that? You know, I keep getting asked, is Trump gonna receive jail time? Is Trump gonna receive jail time? And my answer to that has been, that would surprise me. That would really surprise me. He's a

first time nonviolent felony offender. Now, a friend of the pod, a criminal defense lawyer who's actually been on the pod before has, has pointed out that yes, that's almost always correct. But there are circumstances where you have 34 convictions, you have zero expression of remorse, you have multiple contempt citations in the trial. All of those things are not optimal defendant behavior in the face of these convictions. And could get way worse between now and July 11th in terms of defendant behavior. Right. So I still don't think it's likely that he will be sentenced to actual prison time. I'm a little shakier on that conclusion than I was, say, three months ago or four

months ago. But I still think first time nonviolent felony offense, yeah, it's hard for me to see prison time. Where are you on that, Sarah? So a few interesting things. One, you and I do not do New York state law. We're not just not experts on New York state law. We're very ignorant on New York state law for what that's worth. But it does appear that under New York state law, for instance, the sentence will be suspended

if there's any prison time until the appellate process at least runs its partial course. So there's two different questions here. One is, will Trump be sentenced to any jail time? And the second is, will Trump be in jail this summer or on election day? Will he be able to vote for himself? Things like that.

So the answer to question one is the one you're talking about. Will Trump be sentenced to jail time? For all the reasons that you said, in a normal world, that person would not get jail time. But you've got the Trump problem. He's Donald Trump. And not just like, oh, I don't like him politically, but in general,

the criminal justice system sees no problem in making an example out of celebrities who break the law. Yeah. Using that term kind of loosely, but the more famous you are and the more flagrant it kind of was, if this idea of kind of throw the book as a deterrent factor for others who would consider doing something similar. And the more publicity that case is getting, the more that deterrent factor can factor in. So the Trump part is just really hard to take account of here. Also, you mentioned acceptance of responsibility. And I'll just talk about in the federal system, because again, I don't know the New York state system at all. But in the federal system,

if you accept a plea deal and accept responsibility, you're gonna get a lowering of your sentencing guideline range, not to mention your sentencing recommendation that might come with the plea deal. Like the guideline range itself drops because you accepted responsibility. However, if you go to trial and lose, you can see the problem, right? If accept responsibility would lower your jail time, but you also would then be admitting guilt ahead of your appeal, that'd be a really unfair choice to have a criminal defendant

make. So there is no mitigation for acceptance of responsibility if you go to trial and lose because you're clearly going to move toward appealing that. Okay. We're going to circle back to what's going to happen with him running for president. Let's talk about the appeal. There's lots of avenues for appeal. What are some of the ones you're most interested in? So I am interested in the double bank shot aspect of this case. So that's, that's the core of the appeal in my view. Now, you might have some appellate, you know, some grounds for appeal on some of the evidentiary rulings in the middle of the case. So for example, the judge gave

Stormy Daniels some room to run, but then later admonished the prosecution. There was a mistrial request in the middle of the trial related to the Stormy Daniels testimony. So putting aside some of the objections within the trial, which will be brought up on appeal, the core here is the double bank shot. So just to remind readers or listeners what that is, the double bank shot is to get this to be a felony instead of a misdemeanor, you had to prove that the business records were falsified and as Sarah said earlier, to facilitate another crime or to conceal another crime. Now in the quirks of this New York state law, you don't actually have to prove beyond a

reasonable doubt the other crime. And so in this case, the other crime where there was sort of a grab bag of what they could be, and these were outlined most specifically in the response to Trump's motion to dismiss before the trial. And what they said, what the prosecution said is the other crime is Federal Election Campaign Act, a federal campaign finance crime. And we can go back to that. Also, we had state election law and we had state tax crimes and we had a state, a crime to conceal the falsification of other business records. Of those grounds, the federal campaign finance violation is both the strongest and the weakest, Sarah, because if your theory

is of this case, and this is the prosecution's theory, was that this was essentially election interference, that what was really going on here was using money to, using, improperly using funds to support his election. And that was the real core of the theory here. And look, there was certainly a prosecution of a former vice presidential candidate in Edwards over a very similar theory that ended in a hung jury. There was Michael Cohen's guilty plea, but that has zero precedential value as guilty plea is not a court precedent. So that federal campaign finance violation,

that theory has never really been fully adjudicated. So it's hanging out there. It's the most compelling part of the prosecution's story, but it's also in many ways the weakest legal element of the prosecution's case. Some of these other things like the New York state tax code or concealing the falsification of other records, the evidence there is very lean.

And the prosecution didn't really posit that as the core theory. The core theory of this case was the election interference theory. You might say, well, wait a minute, David, they have a federal campaign finance claim and they also have a state campaign finance claim. Doesn't the state claim take care of that concern? Well, no, because there's something called preemption. And federal law generally preempts state campaign finance law in federal elections.

So you might have a situation here where at the end of the day, the other crime is held not to be a crime at all. Or if it was a crime under New York state law, it's not applicable because this is a federal race and it's preempted. And so if I'm Trump's defense lawyer, that's not the only argument I'm making, but that's argument 1A. In my view, that's your best legal argument for reversal.

Yeah. So in the Edwards case, for instance, very similar facts, right? He's paying off the mistress through third parties. And his defense was, I wasn't doing this to benefit my campaign. I was doing it to protect my family. And that's why the jury hung. What was interesting here is you didn't really see, again, Donald Trump didn't present much of a defense here on that. Again, telling me that they actually would prefer to deal with this on appeal than they you didn't really see again, Donald Trump didn't present much of a defense here on that.

Again telling me that they actually would prefer to deal with this on appeal than they would to get the acquittal now. If the jury was willing to just acquit on insufficient evidence, they were happy to take that. And I think that will be another grounds on appeal that actually as a matter of law, the prosecution did not have the evidence for each of the elements. That's a tough claim. It's impossible.

But I promise it'll be in there. For sure. For sure, especially on the second element that Trump caused or directed the false entry. They were very lean on that. It was mostly circumstantial, in fact, entirely circumstantial. Again, you don't actually win insufficiency on law just because was mostly circumstantial, in fact, entirely circumstantial. Again, you don't actually win insufficiency on law just because it was circumstantial, but it'll be in there. I think on the federal campaign case, you get to a more problem with the core of the law itself, which is under the New York law, Trump didn't need to commit another crime, which is what

they're going to say on appeal. No, no, no. Trump just had to think he was concealing it from investigators because he thought he might have committed a campaign finance crime, but he didn't need to actually commit the campaign finance crime. That to me seems actually like a really problematic piece of this law as a whole. That now not only do they not have to prove you committed another crime, it's just like, was it in your heart that you thought maybe you did something shady and now it turns it

into a felony? Even if that thing that you thought you were doing that was shady turns out not to be a crime. So let's say Donald Trump was like, I think this might be a crime. So let's cover it up. And then it turns out it's not a crime. So let's say Donald Trump was like, I think this might be a crime. So let's cover it up. And then it turns out it's not a crime. The thing that he did, you still go to prison

because you thought it was a crime? Woof, there's gonna be problems with that. And again, I've just said this over and over again, but it cannot be the case that if you paid Stormy Daniels with hard dollars from your campaign, that you violated the law. But also if you didn't pay her with hard dollars from your campaign that you violated the law. But also if you didn't pay her with hard dollars

from the campaign, you violated the law. And the example that I like to give when I'm talking to people about how federal campaign finance works is the dry cleaning example. You cannot use federal campaign dollars to pay for your dry cleaning. And so then start with that and back up from there.

Why can't you? Well, because that expense would exist regardless. Okay, but what if you're like, I never wear a suit otherwise, so I wouldn't be dry cleaning otherwise. We don't care. And you saw some of this come up when there was campaign related money used

for Sarah Palin to go shopping. She bought pantyhose. I remember I remember the expense of pantyhose. Do you remember this, David? Oh, I remember this well. Yeah. And there was this whole like, they could prosecute her for a campaign finance violation because she's campaign dollars to buy pantyhose. And she's like, I don't wear pantyhose. So the expense only existed because of the campaign. And everyone's like, nope, clothing definitely doesn't count. Okay, so same idea here. It can't be both. And I think that the prosecution's theory here

would allow them to prosecute Trump either way, if he had or had not used hard dollars and disclosed it on his FEC report. So I agree with you on that. The other thing I'll note though are the jury instructions. Jury instructions are always your number one appellate issue. And if you win on appeal, it is often because of the jury instructions.

It's really hard to have perfect jury instructions if you're a trial judge. So this was 55 pages of jury instructions. And about half of that was boilerplate, but about half of it wasn't. And so, for instance, we talked some about the unanimity required from the jury. It is the case that the judge said the jury must be unanimous on those elements that Trump was falsifying directed the false business records to conceal a crime. That had to be unanimous, but they did not have to be unanimous about what crime he thought

he was concealing. And the judge was very explicit that they didn't have to be unanimous in that. That will be an issue on appeal for sure. The way the New York law is written, as I said, I think supports that, but that doesn't mean that that's okay, if that makes sense. Well, and this is getting to something that we talked about earlier today, because this is a live emergency advisory opinions that is following up on a Joe Rogan length advisory opinions we already recorded today with Professor Akhil Amar from Yale about unenumerated rights. Can I just talk about our listeners being in two different buckets?

When these both come out tomorrow morning, there's the listeners in bucket, let's call them AO type one. They're the ones who listen to the Akil Amar podcast first. And then there's, if you have AO type two, you're gonna listen to this podcast first. Exactly, exactly. If you're pure legal nerd AO, AO type one, Akil Amar in an unenumerated rights, that's your jam. 45 minutes.

Exactly. Uninterrupted. If you're type two and it's like, hey AO, tell me about the legal news of the day. Yeah. That's this podcast. Excuse me. So to go back to the actual law and what we talked about in the podcast was some of these state criminal laws are really broad.

And this is one of them. Another example of a very broad criminal law is the Georgia RICO statute. RICO is traditionally something that's been used to deal with organized crime. In Georgia, it was broad enough to convict teachers engaged in a cheating scandal. That's how broad RICO is. This law is, wow, wow. If the jury instructions are comporting with New York law, this is an easy law to secure a conviction under because, as you were saying, then, Sarah, all you have to prove is intent, sort of a consciousness of guilt, regardless of whether there's actual guilt. And that's fascinating from sort of a due process.

You know, from a, if you just pull back and you go and you just sort of look at the due process issue, wait a minute, is it really the case that you can be convicted of a crime thinking you're violating. Excuse me. David suffering from COVID flu. He says he doesn't have allergies,

but it's definitely allergies you guys don't tell him. Okay, so yes, there is a due process issue when you think you committed a crime, but you didn't. So we charge you anyway. Just some notes by the way, because for those of you who are listening to this live tonight, this is normally open to members only.

And we normally don't do live AOs every time, but Dispatch Live is our members only thing that we normally do on Tuesday. So if you're into this, feel free to become a member of the Dispatch and you can listen to more of these things that we do. Also, and for those listening live, two podcasts dropping tomorrow, this one that we're currently taping and our normal AO that we taped earlier today.

So some questions that I know people are interested in, and we'll make these AO questions, not just like normal people questions. So an AO question is, can Trump vote for himself this fall? Right? He'll be a convicted felon. And the answer in New York, as I understand it, again, not being an expert on New York law, is that New York law, is that New York

law depends, sorry, sorry, back up. Trump is a resident of Florida. So the question is, can he vote in Florida as a convicted felon this November? And Florida, as I understand it, because I'm not an expert on Florida law, actually looks to the state that you were convicted in. So in this case, it would be a question of whether you could vote in New York

as a felon convicted of this felony. And the answer appears to be yes, as long as you're not currently in prison for the thing. Which, as we've alluded to already, there's a near 0% chance, even if Trump were sentenced to prison time, that he would be in prison on election day. So, highest likelihood? Yeah, Trump can vote for himself in November in Florida. Cool. David, welcome back.

I apologize. Gosh, I'm sick. But yeah, I agree with you that the idea that he would be in jail before the election, no. I think if he wins, even if he's sentenced to jail and wins the election and doesn't have the ability to pardon himself, because this is a state conviction, so he doesn't have the ability to pardon a state conviction, there's no way he's going to be sent to prison while he's the president of the United States. That would conflict with the duties of the presidency and the supremacy clause will win that or just the separation of powers. And I mean the vertical separation of powers between the executive, sorry, the federal government and the state government will win that.

So yeah, that's not happening if he wins. Right. And in all likelihood, the New York, the court would say, the New York court would say, you don't have to fulfill this, you don't have to serve out the sentence until after your presidency, which raises this really weird question of what if, and again, I don't think he'll be sentenced to jail time. So I think that the scenario we're spinning out is pretty unlikely. But here is an unlikely scenario, which is he's convicted, sentenced to jail, and then he wins the election, and then he's got a jail sentence of some period of time waiting for him after he leaves the presidency. That would be a pretty wild, uh, you know, turn of events, but I don't think that's going to happen.

It's unlikely that it'll be sentenced to jail time, not impossible, but unlikely. And even if he is, he's not going to serve it before the election. If he wins, he's definitely not going to serve it while he's president. So, you know, really here the practical result for him is much more the status Trump convicted felon than it is the actual legal adversity of spending time in prison or in jail, which again, highly unlikely. Can a convicted felon be legally elected to the presidency? Yes, for sure.

So the Constitution lays out the requirements to be president. You have to be over 35. You have to be a natural born citizen. You can't have been elected to the office more than twice. Your criminal record is not part of that. And remember, in 1920, Eugene Debs ran for president while sitting in federal prison for sedition because he had spoken out against World War I in a conviction that was 100% unconstitutional

and nevertheless upheld by the Supreme Court. So fun facts. Yeah, that's right. That's a great poll. I had forgotten for the moment that we have had a candidate run for president from prison. It has happened. Nothing new under the sun, y'all. Nothing new. So, let's see.

All right. So David, what are the things that we have forgotten to cover yet? Or should I bring up some more questions? Well, you know, one of the questions that was that we had talked about in Slack and had been emailed was this idea of, is there a constitutional violation for charging him? And then without specifying in the charging document, the other crimes that he is alleged to have committed. So the original charging document charged him with the felony, but didn't really dive into and specify the other crimes.

Well, the answer to that is I don't think that's gonna be a constitutional defect because the other crimes were clearly and fully articulated prior to the trial. There was motion practice. There was a motion to dismiss brought by Trump. Nancy coming through. Decaf coffee. I'm ready to go now, Sarah.

No more coughing vets. And so Trump fully knew what the other crimes were that were aimed at him. So I don't think there's a constitutional violation there. It's just, were they sufficient for the verdict? Yeah, there's also, I think, let me give the sort of partisan questions on both sides. So on the left, there's, you're explaining all these problems with the law, but this should be illegal. So can we have a new law to make this illegal?

And to that, I would say, first of all, we don't need more crimes in this country, just as a general matter, if anything, you're gonna hear from most people who work in this sort of world that we have an over criminalization problem. And so the idea that paying hush money should be a crime, adultery is not a crime. I don't know why paying hush money would be a crime. Blackmail is a crime.

So the other direction would be a crime. If Stormy Daniels had said, if you don't pay me, then I will go out and tell my story. But I think if you follow the evidence, like on that piece of it, I don't know, no one looks particularly good to me in that story. And even who's telling the truth about what happened? I don't, it's all kind of seedy. On the right, the thing that I seem to hear is that this was a selective prosecution, right? That starting in 2016 when he won the election, they started looking for something to charge him with. And that a bunch of the stuff that they initially investigated, they fell short on.

And that finally they found something. So this really was a show me the man and eventually I'll show you the crime nearly eight years later. I'm certainly more sympathetic to that. The problem is that the bar for vindictive selective prosecution is impossible. Yeah. Yeah. I mean, I have sent, I mean, it's really even hard because there is the whole concept of prosecutorial discretion. Right. You have to show that all these other people did the thing.

And the only reason you were charged with the same thing was in some sort of retaliatory way. So think speeding, right? A whole lot of people can be speeding and you still get pulled over. That doesn't make it selective prosecution just because everyone does it. It has to be, no, no, no, they knew who I was and they only pulled me over because I had criticized the government or I'm running for office or whatever else.

We have seen a couple of those cases that we've talked about on AO, which are really fascinating to me. But this ain't that in part because it's going to be impossible for Trump to show that other people Exhibited the same behavior, but weren't charged Yeah, and there's this whole weird element to where you actually had the feds prosecute Michael Cohen on the campaign finance

And not prosecute Trump, which is highly unusual to prosecute the underling and not the boss for the crime. And so there is this highly, this very unusual way in which this all rolled out on the federal side of things. So Michael Cohen gets hit with a prosecution. Trump is left alone. And then here comes the state and the state is looking at this, looks at that federal prosecution and essentially says, and hey, we can do this.

They didn't do it, but we can do it. And we'll do it this way. And look, I think I've said this from the beginning, going back to the original indictment, the strongest part of this case are the facts. The weakest part of this case is the facts. The weakest part of this case is the law. And so the trial was focusing in on the strongest part of the case for the prosecution, which was in essence, hey, did he pay hush money for the purpose of influencing an election

outcome? That was essentially the elevator pitch for them was he fraudulently, he paid hush money to influence an election outcome and he fraudulently covered that up. That's the one sentence summary. Very compelling, very simple, very easy to state, very easy for a jury to understand. What is much more complicated is the legal argument, is the double bank shot. So I'm not surprised by the verdict. In reality, a lot of the proof came in better than I thought it would for the prosecution, but they still never really in my mind tied the knot on the other end of this. And it feels like they're really relying on an expansive reading

of New York law to uphold this prosecution, which they might get. Like they might get that. It's basically an obstruction statute, right? It's just not written as an obstruction statute. And the fact that you have to lean into a federal crime that you can't charge yourself in order to get to the obstruction,

that just creates, I think, a whole bunch of due process problems for this law. But obstruction certainly is a crime. Right. And so to the extent that they can analogize this as closer to obstruction than to the double bank shot, it stands up on appeal. But you still got the jury instructions problems.

And again, as you said, there were all those decisions made during trial. Now, what you'll have to show, let's take the Stormy Daniels example is that the judge should have struck her testimony from the record and that without her testimony, if he had done the thing he was supposed to do, there was a high probability that it would have changed the outcome of the trial. And that's a really high bar as well because you don't want to be second guessing trial

judges all the time. And so we tend to put the thumb on that side of the fact finder and of the trial judge as well on those sort of trial questions versus questions of law. Yeah. And appellate courts tend not to really nitpick the way judges respond to objections. They know that in any given trial, there might be one or two or three rulings that are a little squirrely, a little off, but do they actually impact the outcome?

Yeah. Is it material to the outcome? Cause appellate courts don't wanna be in the business of just retrying everything all the time. So they give slack. Now here's the interesting thing about Stormy Daniels, and I'd really love to hear your thoughts on this area, because I have a thought about her testimony and how, A, it really helped convict Trump and B, how it might actually help Trump on appeal.

So the part of the her testimony that I think helped convict Trump was the nature of the encounter as she described it in the timeline. So if you look at the timeline, it's October 7th, Access Hollywood comes out where he says all these terrible things among them, like if you're a star, they let you do what you want. So here comes Stormy, literally the next day, I'm ready to tell my story. And her story as the way she described it in testimony, in court testimony, was very much mirroring the way he described his interactions with the women in the Access Hollywood tape. You move on them. You're a celebrity. You're a star. They let you do what you want. And so when she went into all that lurid detail,

I think one of the things it really did was say, oh, that's why he wanted to silence this. It's not just that it was an affair, it's also is the kind of- This is what she would have been saying. This is what she would have been saying, but that makes her testimony all the more important and the refusal to limit her testimony all the more important. So that's an interesting question.

That's sort of, if one A is, hey, you convicted me for concealing a crime that isn't a crime, that's one A. In my view, one B or two A would be, oh, and by the way, you let all this really lurid, dark prejudicial testimony come in that shouldn't have come in, that wasn't actually relevant. It was far more prejudicial than it was probative.

Because if the real purpose of Stormy Daniel's testimony was just to establish the existence of the encounter, she went well beyond that in how she described it. Now, it could have been really important to the jury, but that would also be part of the point of the appeal is that all of that lurid testimony was really important to the jury. All right, and with that, we will wrap our Emergency Advisory Opinions podcast.

Just so you know, on our next regular episode of Advisory Opinions, we're gonna to do this all again, but with the Hunter Biden trial starting and discussing all of those charges, all of the legal problems, all of the fact problems for both sides. So tune in if you really like political trials that might affect the election. David, this was a treat as always to see you after dark. This was a treat.

And again, I'm sorry for the discombobulation, but hey, you know, sometimes even when you're sick, you got to press through. You just got to press through. That's right. Oof. And this was an emergency pod necessary. I'm gonna be a good boy. Oh