Plain English with Derek Thompson - Eight Burning Questions About the Donald Trump Indictment

Episode Date: March 31, 2023

Donald Trump has been indicted. But what do we actually know about the case against him? What will the charges be? Is there any legal precedent for the prosecution? What happens when he's arrested? Could he run for office from prison? How does this change the Republican presidential race? What about all those other investigations proceeding against Trump, in Georgia and D.C.? Is this indictment good for Donald Trump's presidential hopes in an underrated way or the beginning of a bigger downfall? Derek answers your burning questions to the best of his ability. Host: Derek Thompson Producer: Devon Manze Learn more about your ad choices. Visit podcastchoices.com/adchoices

Rough year for your favorite NFL team. Join me, Danny Hyfitz, along with Danny Kelly, Ben Silluck, and Craig Krollabak on the Ringer NFL Draft show, where we talk about all things NFL draft. And more importantly, how to fix your mediocre team. Check out the Ringer NFL draft show every Tuesday and Thursday. Hello, I'm Derek Thompson. This is plain English. And this is a special emergency episode of plain English because the day finally came. For the first time in American history, a former president has been indicted on criminal charges.

And his name is Donald Trump. And this is a historic and fairly surreal moment. Trump has, of course, for years, who deanied the American legal system so many times you could be forgiven for saying, you know, of his current legal troubles, this is just another boy who cried indictment. Right?

The morbid joke of the last seven, eight years has been that every few months, the left will get incredibly excited about some new possible criminal charge and say, aha, I'd love to see Donald Trump slip out of this one, only for Donald Trump to very much get out of that one. This is a man who has been under criminal investigation somewhat routinely since the 1970s.

Since the 1970s, that is half a century of Charlie Brown lining up over the legal football just to have Lucy yank it away over and over and over again. So what I wanted to do here, was to break down the way that I'm thinking about this indictment, its implications, and the next step. And I want to ask and do my best to answer eight burning questions about this historic and frankly surreal indictment. So question number one, what do we actually know? We have to begin here.

When you watch, read, listen to news about the Trump indictment, no matter what ideological pond you are fishing for your news in, you have to keep asking yourself that question because I've already seen so much speculation try to pass for factual analysis. You know, people will say, we know that Trump committed a felony, or we know it's a witch hunt. We know this is purely political. We know the case is doomed. We know the Manhattan District Attorney. Alvin Bragg has something up his sleeve, or we know he's way over his skis.

we know this is only the first domino of many, many to fall. We don't know shit. We don't know anything. We don't even know what's in this indictment yet. We will soon. And when we do, that's when I think it'll be most essential to bring on a real legal expert here to talk about what we can actually see in the indictment, in the evidence, in the case. We don't have that yet.

So I am sorry if I'm sort of beginning on this sort of, you know, omnibus caveat. But I think it's important to have a kind of reflexive skepticism about the most vociferous stuff you're going to see and read and hear because people are going to lose their mind about this and you want to keep yours. Question number two, what is this case actually about again? like Trump is constantly being charged with crimes. What is the crime that we're talking about here? The answer to this question is either extremely simple or unbelievably complicated. The very simple answer to the question

is that Trump and his fixer Michael Cohen paid the porn star stormy Daniels to not talk about the fact that they slept together and that payment might have broken New York state law. That's the simple answer to the question. question. Michael Cohen, again, Trump's former fixer, has already pled guilty to tax evasion. In his plea, Cohen said, hey, you know how everyone knows I paid Daniels to not talk about her affair with Trump? Well, Trump told me to do that, and I will testify under oath that those off-the-book

payments were directed by the candidate. So that sounds maybe like a misdemeanor. You know, maybe if Michael Cohen paid Stormy Daniels and then Trump paid Michael Cohen and made that payment look like an ordinary legal payment, well, that is falsification of records. But as former federal prosecutor Jennifer Rogers has pointed out in many excellent interviews, that's a misdemeanor in New York state law. For it to be a felony that crime has to be committed in conjunction with another crime, right, to facilitate or to cover up another crime. Now, what most legal observers think for now is that Alvin Bragg, the Manhattan District Attorney, is going to try to connect the hush money cover-up to the federal election.

He's going to say something like this. If this payment was done to benefit the campaign, and obviously, you know, withholding the testimony of a porn star who is accusing a candidate of adultery is of material benefit to a campaign, if the campaign spent money to hide. that information and did not disclose it with the proper paperwork, that is the second crime. That turns the misdemeanor into a felony understate law. But here's where things get a little bit weird. Quoting from the New York Times, quote, a Times review and interviews with election law experts strongly suggest that New York State prosecutors have never before filed an election law case involving a federal campaign. Bringing an untested case against anyone,

let alone a former president, carries the risk that a court could throw out or narrow the case. For falsifying business records to be a felony, not a misdemeanor, Alvin Bragg's prosecutors must show that Mr. Trump, quote, intended to defraud, intended to defraud, end quote. So this is the issue here. Not only are we in unprecedented waters, does that make any sense as a metaphor?

Not only are we in entirely new waters, entirely new territory, terror incognita when it comes to charging an ex-president with the crime, indicting an ex-president. The most likely thing he's going to be indicted for is an untested legal theory. Question number three, is there any legal precedent to this case? The answer is maybe, and his name is John Edwards. You may remember John Edwards, who ran for president several times. As a Democrat, Edwards cheated on his wife. Edwards also made a secret payment to his mistress. And Edwards was also indicted for a hush money scheme connected to campaign finance law.

So right there, it looks like this is a pretty good precedent. What happened to John Edwards? Well, John Edwards beat his charges because his lawyers convincingly argued that the payments were aimed at protecting his family, his family from embarrassment and pain, not to protect his election. Now, this leaves the Trump lawyers

in a kind of interesting situation if they're going to play the John Edwards' playbook. On the one hand, it kind of seems like Donald Trump would have to admit to this affair in order to make the Edwards case stick. He would have to say, yes, I made this payment because I wanted to protect my wife from the reality that I had had this affair. That means he would have to admit essentially to having lied to the American people for years

and years. Now, maybe they wouldn't care, but it at least is a complication. Currently, what the Trump lawyers seem to be saying in public is that Stormy Daniels was trying to extort the former president. I'm not exactly sure how that shakes out. If you are trying to pay off someone who you think is extorting a federal campaign and you don't disclose that payment, isn't that still a problem with campaign finance? It seems like it is because if a liar is trying to extort you,

then doesn't that mean that like family embarrassment and pain isn't really the You can always just tell your wife and your family this person is crazy. Like, it seems like if you're going to say Stormy Daniels was totally full of it, and we were just trying to make this thing go away, that you're trying to make it go away for a purpose. And the purpose is that it's a material benefit to the campaign. So I am very interested to see how the Edwards precedent plays out in this case. There's one other really fascinating wrinkle. So the Edwards case resulted in a very embarrassing loss for a lawyer named Jack Smith at the Justice

Department's Public Integrity Division. Jack Smith is currently the special counsel overseeing federal investigations into the January 6th insurrection. So Jack Smith, welcome back to the news cycle in the strangest of all possible ways. question number four what happens when trump is arrested what happens when he turns himself in the answer is it's going to be a shitstorm there is going to be a donald trump mugshot the donald trump mugshot is going to be one of the most instantly iconic images of this entry what else can you say about it it's going to be an image you see you see

a million times. It's going to be like if Instagram announces that it's the most shared image in the history of the company, would you be surprised? This is the most famous person in the world and he will be booked.

It's going to be the Mona Lisa of 21st century photographs. Even if you hate Trump, you're going to get so bored of seeing it. I also suspect, by the way, we're going to get some riots. I mean, I'm not in enthusiastically predicting mayhem here. But, you know, the last time this president was forced to do something he didn't want to do,

like leave the White House, his supporters did kind of trash the Capitol and invade Congress. I think the next week, if indeed Donald Trump does, as news reports are saying, turn himself in around Tuesday. The next week is going to be very, very, very, very strange. Question number five. If Trump is convicted, could he still run for office? the simple answer is almost certainly yes. An indictment does not preclude Trump from running for office.

That would be crazy. We don't want to live in a country where just being indicted for a crime means that you're barred from running for office. Even a conviction in this case would not legally prevent Trump from continuing to run for president. Only conviction in the Senate during an impeachment hearing would have barred Trump from future federal office. But of course, as everyone knows,

the Republican Senate acquitted Trump after both of his impeachments. Amazingly, the history of running for president from prison is a relatively full history. Many more people have run for a president from prison than actually been indicted as a president, right? No president has ever been indicted, but several people have run for president from prison. Lyndon LaRouche ran in 1992 while incarcerated for tax evasion and mail fraud. In 1920, most famously, the socialist party leader Eugene V. Debs ran while in jail. He was in jail for protesting World War I. In fact, in this case, the Debs story might be history serving as prediction. When Debs was the Socialist Party candidate, his conviction, his imprisonment was a key part of his campaign. In fact, the campaign handed out buttons that referred to Eugene V. Debs as convict number nine. 9653. So that, I think, could be history predicting the president because you have to imagine that given

the meme army behind Donald Trump, if he is booked, if there is that famous mugshot that we all see a million times, there's going to be versions of that mugshot that are going to be memed to death, right? The same way that Biden has his dark brandon, I mean, you can absolutely imagine how his supporters will rally behind him and use that mugshot as a visual symbol of Trump's pirate status and his rage against the system. Question number six, how does this indictment change the dynamic of the Republican presidential race?

Man, I think it presents a really interesting challenge to Trump's opponents because at the moment, the only viable strategy is to enthusiastically support Trump. But that puts his opponents, Ron DeSantis, you know, Mike Pence, maybe people running in this sort of Mitt Romney Lane, like the Virginia governor, Glenn Yonkin. It puts them in an awkward position for now

because they have to rally behind the candidate they theoretically want to expel. It's literally impossible to simultaneously rally behind Donald Trump and say we have to repel him, we have to eject him. You've got Ron DeSantis out there saying he'll actually refuse to extradite Trump

from Florida if it comes to that. I do not, by the way, think it will come to that. You've got DeSantis using Trump's own language talking about Alvin Bragg is a Soros-backed Democrat in New York. Glenn Yonkin, the governor from Virginia, he's tacitly expected to run. He has condemned this indictment.

Mike Pence just went on scene. CNN last night saying it was an absolute outrage. It's going to be very difficult, I think, for other candidates to position themselves against Trump while effectively supporting him against the liberal establishment. And it just goes back, I guess, to like the thing that makes Trump so difficult to overcome as Republican president is that he has this extraordinary talent, if you want to call it that, talent for sucking up all the oxygen in the room at all times. I mean, what could possibly suck up more oxygen than the fact that he is now a man of history, the first president to ever be indicted?

There's just, it's just so difficult, I think, in the presidential campaign on the Republican side, given that these diehard Republicans voting in the primary, you know, seem to to want a kind of a kind of surrogate against the system. And now the system, capital T, capital S, the system has turned. against Trump, I do think it rather obviously helps Trump for the moment. And I want to put an asterisk there for the moment because this case, this indictment for the hush money payment is just one of many, many cases coming down the pike that could potentially result in indictments or convictions for Trump in the next few months. So that leads to question number seven. What are these other cases?

What is a full rundown of the legal danger that Trump finds himself in? Well, there are three other investigations where you could make a very strong case that these other parallel tracks, these other parallel investigations, are more significant than the hush money indictment,

either in terms of the underlying crime that's being investigated or even more plausible in terms of bringing an indictment to conviction. So number one, New York, number two, Georgia, and number three, the Justice Department. Number one, New York.

The New York Attorney General, Letitia James, is investigating tax fraud at the Trump Organization. She is still investigating tax fraud, and it remains to be seen whether the fact that the Trump organization's longtime CFO, Alan Weisselberg, having pled guilty to 15 counts of tax evasion, is going to lead to an indictment that folds in Donald Trump.

After all, it is the Trump organization. It's kind of hard to argue, not necessarily in the legal system, but just as a general, like, conceptual matter, that you have rampant tax evasion going on at the Trump organization, and Donald Trump doesn't know about it, and it has nothing to do with it. So you have, on the one hand, New York Attorney General Letitia James and the Trump Organization sort of tax evasion.

investigation. Number two, in Georgia, the Fulton County District Attorney is investigating the degree to which Donald Trump broke laws by pressuring the Georgia Secretary of State, Brad Raffensberger, to remember find him votes. The famous quote, quote, I just want to find 11,780 votes, Trump said over and over to Secretary of State, Brad Raffensberger. The district attorney in Fulton County has, I have read her testimony from dozens and dozens of witnesses, nearly 100 witnesses. I mean, these are accusations that are, of course, supported by audio evidence. We have the phone calls.

So we are supposed to learn maybe as soon as this spring, whether Willis at Fulton County is going to bring charges against Trump. And of course, you know, campaign finance violations, that's a big deal. Tax evasion, that's a big deal. Pressuring a state secretary to overturn an election, I do think that democracy is pretty important. I do think that's probably a bigger deal. And then finally, number three, you have the Justice Department and their special counsel, hello again, Jack Smith, who is investigating Trump's handling of classified documents at Mar-a-Lago

and also investigating, there are also investigations obviously undergoing with the January 6th capital riot. So you put this all together and like depending on how you're going to do your bingo card, we've really got like five different things

to look at. Number one, the hush money and campaign finance violations we've been talking about the last few minutes. Number two, Trump Organization tax evasion. Number three, pressuring a state secretary to overturn an election. Number four, inciting an insurrection on January 6th. And number five,

taking classified documents and not just taking classified documents, but obstructing justice. I mean, you can go back and listen to our episode with Frank Foer about the obstruction of justice part of this investigation with the classified documents in Mar-a-Lago. The problem is not just that he took the documents. The problem is that he took the documents. His own lawyers told the Justice Department, no, we didn't take documents, no, we don't have anything left. And then the Justice Department subpoenaed video evidence of Trump.

people moving documents around, moving boxes of documents around Mar-a-Lago before, of course, Mar-a-Lago was rated. So those are five different parallel investigations into Trump. And that's why I am not so sure that this is going to be a simple matter of people rallying around Trump fighting back against a novel and relatively unproved theory being brought against him by Alvin Bragg. That brings us finally to question number eight. Is this whole thing secretly good for Trump? That is the galaxy brain take right now, right?

I mean, what other galaxy brain take could there possibly be? It's that, you know, becoming the first president indicted for a crime, it's not bad, it's actually good. It's good because it will rally Republicans around Trump. And if he beats the case and seems invincible, it might somehow provide some kind tailwind to his campaign going into 2024. Like, the overwhelming conventional wisdom seems to be that at least this indictment will be good for Donald Trump in the primaries.

I think it's worth at least scrutinizing that. I think it's worth thinking, okay, what happens if these DAs, if these prosecutors get Trump or indict Trump not only on the hush money, but, Also on one of these other things, on trying to overturn an election, on tax evasion, on inciting an insurrection, on obstruction of justice against the FBI and the Department of Justice.

I wonder now whether if he's indicted once, it's kind of like, oh, well, shame on that one corrupt liberal city DA, but if he's indicted multiple times in the span of nine months for a variety of crimes that covers everything from porn stars to the nature of democracy, we might start to think about the general election prospects of Donald Trump a little bit differently. Think of him as being tied down by so much baggage that maybe it is possible that deep into a Republican primary season, he might start to seem a little bit weaker.

Now, this, of course, could be absolutely recast as just liberal wishcasting. Of course. I mean, I don't like Donald Trump. I would never vote for Donald Trump. And there's no question that he is, at this very moment, the clear and far away frontrunner for the Republican presidential nomination. But I wonder if all of this jeopardy starts to accumulate

whether it's really good, like actually good, to be the first president in American history to be indicted over and over and over and over again. we're going to see. And certainly before we get to the over and over and over again with other indictments that frankly don't look that close, at least in terms of weeks, we're going to learn a lot more about what is in this indictment. And I will, of course, have legal experts on to talk about plausibility, right?

I mean, is this an entirely new case that is being made, or is this something that we think could actually lead to a conviction? Before then, thank you all for listening. and we will talk to you soon.