Strict Scrutiny - The Arrest is History

Episode Date: April 5, 2023

It’s a Strict Scrutiny and Pod Save America crossover! Jon, Jon, and Tommy get together with Leah  and Kate  to talk about Donald Trump’s arraignment in Manhattan criminal court, and the legal jeopardy he faces now that he’s been charged with 34 felony counts. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome to a special emergency episode of Strict Scrutiny that is a crossover with Pod Save America. In the episode, we break down the arraignment, what happened on arraignment day, and what could happen in the following days, weeks, months, and really years in at least this case against Donald Trump. Welcome to a special arraignment episode of Pod Save America.

I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. And we are lucky to be joined by Leah Lippman and Kate Shaw, two of the brilliant legal experts from the award-winning Strict Scrutiny podcast. Great crossover. Welcome to the pod. Thanks for having us, guys.

It's great to be here. Thank God you're here. All. Thanks for having us, guys. It's great to be here. Thank God you're here. All right. What a day, guys. I couldn't carry all the legal arguments myself. Okay, yeah. So Donald Trump surrendered to authorities in New York and entered a not guilty plea to 34 counts of filing false business records in the first degree.

Felony charges that carry a maximum of four years in prison for each count. Manhattan District Attorney Alvin Bragg accused Trump of orchestrating a scheme with others to influence the 2016 presidential election that involved paying money to porn star Stormy Daniels, Playboy model Karen McDougal, and a doorman who claimed to have a story about Trump fathering a child out of wedlock. In making those payments, Bragg said that Trump, quote, violated election laws, made and caused false business records and mischaracterized the payments for tax purposes. OK, Leah, we've been hearing about how District Attorney Bragg's case might be based on a novel legal theory. Now that we know what the actual charges are, can you break down what that theory is? So it's actually not all based on a novel legal theory, but the novel legal theory is, I think, a reference to this idea that the state charge here is a misdemeanor as a default,

but falsifying business records is a felony when it's done with the intent to commit some other crime. And here, one of the other possible other federal crimes that he's falsifying business records to conceal is a federal crime. And so the kind of uncertain or unknown legal theory or new legal theory is this idea that the separate crime you can be falsifying your business records to conceal is a federal crime rather than a state crime. But this entire case isn't actually premised on that theory because some of the other crimes that the Statement of Facts and the press conference indicated the DA is saying that Trump was trying to conceal are state crimes, you know, violations of state election law as well as state tax law. But there's also just this idea that like,

because it's a new legal theory, that necessarily means it's wrong or bad or it was a problem to bring this case. But the reality is that new sets of facts and new ways of committing crimes will sometimes generate new legal theories. And that doesn't mean the theory is wrong. I mean, I don't know how many New York businessmen are in the habit of falsifying business records to conceal extramarital affairs so that they can win a presidential election. In fact, I'm having some difficulties imagining like other people for whom that could even plausibly be true. So it's just not that surprising that we haven't seen this novel legal theory tested before. I think first of all, shame on you for erasing unfaithful female business people having affairs.

It's always the men. See, this is why we never do episodes with more than two men on them. That's the right call. So, Kate, I heard some people arguing that, so in the statement of facts that was released, they released the indictment and they released the statement of facts which is more interesting it sort of tells the whole story um bragg did not specify sort of the state crimes that he thinks trump was trying to conceal with the falsified business records later in the press conference he said it violated new york election law which makes it a crime to conspire to promote a candidacy by unlawful means. The $130,000 wire payment exceeded the federal campaign contribution

cap and the false statements in AMI's books violated New York law. Why do you think he, A, didn't include all of that in the statement of facts and B, seems to be suggesting that there are both federal crimes and state crimes that Trump was trying to conceal with the falsified business records. Right. So it turns out as a matter of New York state practice, when you're taking this falsification misdemeanor and bumping it up to a felony because it's being committed in furtherance of some other crime, you actually don't need in the indictment papers to charge the other crime. And you actually don't, it turns out, need to specify the other crime.

Bragg said that very clearly at the top of the press conference today. So I think what he was doing here was actually pretty consistent with New York state criminal practice. But of course, these documents are being scrutinized in a way that distinguishes them from ordinary charging documents. And so I think there was a lot, you know, as Leah's answer just kind of alluded to, a lot of like garment and hair rending about the failure to really specify the state and federal crimes that these falsification offenses may have been committed and further and stuff. But of course, there are broad references that I am sure will be developed as this case proceeds to both federal campaign finance violations, to this state election crime, which is basically just conspiring to advantage or disadvantage a candidate. And that's like a crime on the books.

It's a New York state crime. And the scheme that's detailed both in the indictment, but obviously, you know, with more kind of color and detail in the statement of facts is obviously about advantaging a candidate for president, Donald Trump. So the face of the New York state statute seems to be pretty clearly satisfied. And then there also is that there are references made to state tax offenses. So I don't have any great insight into why there wasn't more detail provided, except that maybe it gives, you know, adversaries and viewers and readers the opportunity to pick apart something at a very early stage when you actually don't have any legal obligation to show all of your cards. So that's my best guess at why we have general references, but not specific detailed descriptions of the underlying offenses.

Question for either of you. I mean, coming into today, there was a lot of hand wringing about perceived weakness of this case. Some of it was in comparison to some of the other investigations into Donald Trump and the severity of, say, subverting our democracy. But setting that aside, now that we've seen all the specifics in this indictment, we've seen the statement of facts and the various documentation that was released today, how do you feel, generally speaking, about the strength or weakness of this case? You know, I feel like it's pretty clear that they have established a New York misdemeanor, the falsification of business records. And then I also think we learned at least one additional thing from the statement of facts and the indictment, which is they apparently do have some texts and email

exchanges, I think, between Michael Cohen and other people that suggest they wanted to delay having to make the payments until after the election in the hope that they wouldn't ever have to make them. And that's some pretty persuasive evidence that they were doing all of this to influence the election. And that could go a considerable way to proving that they were falsifying business records in order to conceal or commit some other crime. So I think they laid out a clear case for why this satisfied the threshold to bring a prosecution. You know, do I wish that we were going to get a perfect case wrapped in a bow that actually held Trump accountable for all of the

worst things he did to our democracy? Sure. But I think that the path to an attempted coup and insurrection is paved with a bunch of other legal violations along the way. And so holding someone accountable for some of their thumbing the nose at the rule of law is is a good thing. And, you know, I'm not like super confident this is going to result in a conviction or that everything's perfect. But again, I think they kind of made their case that this fell squarely within the kinds of cases that they would just clearly be bringing if this was done by someone not in the Trump world. Kate, what did you think? Was there any surprises when you read the documents and heard Bragg at the press conference? So a couple things. In terms of the press conference,

I actually thought he spoke pretty, that Bragg did, he spoke pretty directly to the critics, basically saying things like this case is trivial and doesn't compare to the kind of existential stakes of the special counsel investigation into January 6th and, you know, maybe to a lesser degree, Mar-a-Lago and classified documents, but also the Fulton County, Georgia investigation. January 6th, Fulton County, these are about the integrity of our elections and democracy. And those things just seem far more consequential than this. But I actually thought the way Bragg framed this case was about, in equal parts, financial integrity and electoral integrity, right? He said, we're the financial capital of the country. It's actually really important as a value that we be sure that people are filing

accurate and trustworthy documents. So that goes to kind of the robustness of our financial system. And actually, the whole scheme was about subverting democracy and the electoral system by trying to skew the outcome of eyes and ears. We'll help conceal damaging information. We will elevate damaging information about your adversaries. And so that's the beginning of this scheme. And then as you described at the outset, we have these specific instances of implementation of that scheme. So I do think Bragg is actually tying this to these broader democracy values that weren't maybe evident on the face of these allegations as we kind of understood them before today, but actually really do seem to be present in this case, in addition to the other cases. Can we talk about the campaign finance violation you're referencing? So when John Edwards tried to pay some hush money to quiet an affair,

one of the defenses was, no, no, this wasn't about politics. I really didn't want my family to find out it was going to be really bad. In this case, you have these texts that are basically like, keep it till after the election. It's basically a smoking gun that says this was done for the election. So that takes care of that excuse for it. But there's this issue of, so Donald Trump basically gets this in-kind contribution made to silence Stormy Daniels, and that is an illegal contribution. But if Donald Trump had, say, paid for it out of the campaign to quiet Stormy Daniels, that could be construed as an illegal use of campaign funds. Is it just the case that there's no way in the United States of America to pay hush money

while you're running for president? Is that what you'll have us believe? I think what you need to do in order to do it right and make sure it's like very legal and very cool is you can only pay a certain amount and then you need to publicly disclose it, which like obviously kind of defeats the purpose of hush money. But, you know, that's like, like shouldn't count as a contribution or expenditure under federal law, because then it would mean almost every expenditure a candidate makes during the course of a campaign could be construed as a way to promote their candidacy and thus influence the election, whether it's buying new clothes or settling a lawsuit as you're running because you don't want that public. So what do you guys say to that argument? Because I keep hearing it. Yeah, I mean, I think the statement of facts just really kind of puts that to rest in producing really substantial evidence that everyone involved in the scheme that this indictment charges knew that these payments were being made in order to improve the electoral prospects of Donald Trump. That was the point. So, you know, I think in the abstract, one can

make the arguments that there were other justifications. And presumably, there will, if this goes to trial, be evidence that Trump's lawyers try to introduce that suggest alternate motives. But the evidence that we've seen, and, you know, we've just seen the indictment in the Statement of Facts, suggests that there was at least one key reason, and maybe only one reason, that these payments were made, and that was to help get Donald Trump elected president. I will say, like, I would not put it past Trump's lawyers or like at least one to three Supreme Court justices to flirt with the idea that actually you have a First Amendment right to use your money in like whatever way you want to elect a candidate of your choice. Because like that speech, it's all just hush money. And I guess like, I wouldn't be surprised to see an argument in that vein, like floated somewhere in the case. I just really can't get over the head of the National Enquirer going to Donald Trump and

being like, I will work for you. I will be your eyes and ears. I will suppress all these stories that could damage you. Because again, back to John Edwards, the National Enquirer broke the story of the affair with Riel Hunter and that John Edwards had had a child with her. In this case, they were gobbling up stories to protect Donald Trump. It's like, imagine if we had the National Enquirer buying up the Reverend Wright videos in 2008. Well, the point is, I think it'd be legally dubious. What a great advantage. I think I think we're I think I'm glad it didn't happen. We'd be up Schitt's Creek. It's just so nice. I think we talked about this, Leah, last time you

were on to discuss this case. But like, what do you think now are sort of Bragg's biggest challenges in getting a conviction here? Like, what are the what are the real obstacles in this case? I think there will be some initial motion practice around maybe malicious prosecution, vindictive prosecution, where they attempt to have the indictment dismissed on that basis. I think that's very unlikely to be successful. is challenges to the credibility of some of the witnesses at any trial that does happen, questioning the credibility of Michael Cohen or David Pecker or whoever the other witnesses end up being. So I think that that is going to be a big part of the case. But I think that a lot of it before that point is going to be about these threshold legal questions, like is it even permissible to enhance this misdemeanor charge to a felony on the basis of a federal

crime? Does federal campaign finance law preempt the ability to enhance the misdemeanor charge on the basis of the New York state election law crime and other kind of legal arguments? So I think those are still on the table. But you add to those kind of credibility challenges to the likely witnesses that the prosecution is going to be relying on. Kate, earlier in his Mar-a-Lago, I don't know, address, he raised the judge and he said he was a Trump hating judge and raised the judge's family and maligned the family. I have a Trump hating judge with a Trump hating wife and a Trump hating family. So, you know, tradition, I don't know, judges don't usually like that kind of thing,

presumably. What do you expect to happen? What do you what what kind of position does that put the court in as they try to deal with this unique defendant? I don't think a gag order is out of the question. So judges sometimes in cases will basically issue orders directing defendants to refrain from talking about particular topics. It's not routine, but it's definitely done. Roger Stone was maybe the most recent and most famous recipient of a gag order. But he was posting on social media about the judge presiding over his case. And she ended up issuing and then doubling down on a gag order. So I wouldn't be surprised, you sort of saw in the hearing today,

the DA's office beginning already to raise some of that rhetoric by Trump directed at Bragg and others. So I'm not sure if based on just the Mar-a-Lago remarks, we're going to see the DA's office try to get back in front of the judge and say, well, we didn't ask for a gag order. They basically asked for a protective order, essentially asked the judge to tell Trump and his team they can't disclose the discovery materials that the DA's office is going to have to give them.

There could be identifying information. There could be other reasons the DA's office doesn't want Trump blasting on social media the contents of documents exchanged with the prosecution. But there was no request, as I understand it, for a gag order. So we could see a request for one. And a gag order that was narrowly crafted to restrict his ability to talk about the judge and the proceedings, I think would be perfectly permissible. If you're going to try more broadly to restrict the speech of a now declared presidential candidate, I think people would raise obviously First Amendment objections. But a narrow gag order, I think, is definitely in the realm of the possible. Let's talk about timing. They said that next court date for Trump

will be December 4th, quite a ways away. We talked about, you know, Trump will certainly try to get the case thrown out. Are there other strategies he'll try to use to delay even beyond December 4th? Or I saw that the prosecutors want a trial in January of 2024, I believe, and Trump wants the trial in spring of 2024. What are your thoughts on sort of the timing and what they could do to delay this? I mean, they're going to file a bunch of motions, you know, you add to different theories for like a motion to dismiss the indictment, trying to change venue. My guess is they're going to try to challenge the legal theories involved in the case. They will probably try to raise some questions or challenges to whatever, you know, discovery negotiations that they begin now and try to work through over these next few weeks or months. But the fact that his next court appearance isn't until December,

this case has been framed as, are people above the law? Is Donald Trump going to be held to the law? And it's already clear he's being treated differently. And we already kind of touched on this when we raised the possibility that it might be a problem that this case turns in part on an untested legal theory. You know, the fact that people are even raising questions about that is a sign that this case is being treated differently. You know, they're asking the prosecution to effectively come with an indictment that rests on a set of facts that courts have already held in other cases constitute a crime under this statute. And that's not the way like ordinary criminal cases are treated. And neither is telling the defendant, like, we'll see you back

in eight months. You know, in a lot of felony cases, you have to check in with the court more regularly. And so, you know, he didn't have a mugshot taken. So he is already getting a lot of indulgences that are being made in the interest of trying to make this process be and appear as fair as it can be. Because, of course, like no one wants to live in a world where political foes are prosecuted just because they're political foes. But the opposite of that world isn't that political opponents are above the law and can never be held to the law. And I think that the DA's office is like really trying to thread the needle as our other offices, and they're struggling with how to say, look, we're trying to do the right thing, but we also have to treat this case like other criminal cases in some ways. Kate, Leah, do you say defendant or defendant? I think it's so cool when TV lawyers say defendant. It makes me feel like I'm watching Law & Order. I guess I say defendant. I don't know if that's because I'm Minnesotan or not a TV lawyer, but a podcast lawyer.

So sorry to disappoint. Kate, what about you? Defendant, definitely. Defendant, just defendant? Team defendant. I've never heard defendant. Like, remember that guy from Philadelphia that represented Trump during the impeachment? He says defendant.

I would bet money on it, you know? Joe Tapioca? Yeah, no, not Joe Tapioca. Do you think we can call him Joey Tapioca or does that feel offensive on some level? Questionable. I mean, you know, what is even offensive these days? Do you regret doing this crossover? This is this is I think this is good. We now have like we were watching some Fox News just to see what's going on over there. Like the chorus of right wing pundits and even elected Republicans now basically just calling for some prosecutor somewhere to start indicting Democratic officials is growing louder and louder. Like, is that something that you guys worry about that could actually start happening here or what? Oh, yeah, we're both nodding hard.

We worry about it. I don't think it's a reason that the Manhattan DA, you know, should have hesitated here. But I do think it's a real concern. There are two things that give me some comfort that we're not about to see despite the calls for somebody to do it, you know, some floodgates opening. One is this is the Manhattan DA. This is Manhattan where former President Trump conducted his business, his campaign. You know, this is an office that has a plausible nexus, a more than plausible nexus to the events charged in this indictment, some random prosecutor in rural Texas trying to indict a former Democratic president or member of Congress or anyone else, it's just really hard to see even a threshold plausible case that could be made. And that doesn't mean that some elected DA might not try

to make it. But I do take some comfort actually in the constraining force of legal norms and legal culture. I don't think these things will save us. But I actually think elected DAs, they don't write their own charging documents. They have staffs that help them do these things. And I'm not sure. I think it would be a little bit challenging in most prosecutors' offices

to try to get your people to sit down and write an indictment charging. I'm not even going to name names of Democratic officials. I'm not even sure who on Fox News is being singled out, although I'm sure I can guess. But I actually don't know that it's easy for pundits to call for it. I actually think sitting down in a prosecutor's office and trying to draft such a document, even if you wanted to do it for political reasons, I'm not sure that you would get your team to do it because sort of people are steeped in these sort of rule of law norms in legal culture. Again, I don't think that'll save us, but I do think that

it's at least a somewhat, to my mind, comforting constraint, at least in terms of this becoming open season on Democrats by local prosecutors. Okay, my little optimist, but like, can't you imagine like Sam Alito just like knocking back a cold one and like going out and making a citizen's arrest

of Hunter Biden and just being like, they made me do it. That'd be cool. Jesse Waters is waiting outside Dianne Feinstein's doctor appointment. Hey, as long as it's a safe space for dumb questions. Why do we still do courtroom sketches? They got Trump looking like the Grinch that stole Mar-a-Lago here. We get a camera in there? I mean, we did get some photos from the arraignment. But courtroom sketches are just kind of a thing and everyone always looks really horrible they're given like a shade of green and their face just looks kind of goblin-esque

and you know so here too he was um treated the same as everyone else who goes through new york courts okay why do you guys think that merrick garland and the DOJ didn't bring this case, look, DOJ can walk and chew gum at the same time. They can investigate multiple things. But I have to imagine like that's what's immediately before you as you take over the Department of Justice. Maybe you decide to allocate your resources that way. So that's one theory. I think, you know, some people at DOJ might be afraid of their own shadows and are so committed to the idea of being institutionalists, that they treat office holders as kind of co-extensive or synonymous with the office. And to them, prosecuting a former president is prosecuting like the presidency. And they've insisted in some ways on treating President

Trump as if he was just like any other president. And that, I guess, means treating him as though he doesn't break the law. So I think that that is also probably part of it. I think a more sympathetic reconstruction is, you know, as we were just kind of talking about earlier, these cases do sometimes take more time to develop additional facts. You know, we talked about some of the additional facts that we learned from the statement of facts here and other statements. And so it's possible that they are still looking into some additional things related to, for example, January 6th or the Georgia call or other things that might later on down the road generate charges. So that's another possibility as well. Although, you know, I have to say I'm not really holding my breath for that.

Well, the one that you didn't mention that seems like maybe it's not the most severe crime that Trump committed, but it seems like to me, at least the most open and shut case is the documents case. And there was news in the last week that DOJ now has evidence that after the subpoena was issued, that they moved the boxes out of Mar-a-Lago and Trump inspected personally some of the boxes and tried that. Do you guys think that's pretty, that's a strong one? Because it really strikes me that, I don't know how he wriggles out of that one. It seems really strong. Yeah, I mean, two things. One, the fact that you've had a district court judge pierce attorney-client

privilege on the basis of the crime fraud exception, which is very rare and suggests to me just really, really strong evidence is developing that there was one or multiple crimes being contemplated and planned between Trump and his lawyers. That's, I think, significant. And also, so this is the documents case, but also this is as much about obstruction of justice, right? The classified documents themselves are obviously part of the obstruction, but it is what appears to be the quite willful refusal to return and concealment and moving, et cetera, of documents. So the taking of the documents is, to my mind, sort of the least of the offenses.

And the taking of the documents, it seems to me, just on the facts, you sort of have him dead to right on those. But the rest of it seems really strong, too. So I think that's relatively close to being charged if they're going to charge it. I don't think we're talking about waiting a long time at this point. So it could be that we see in a matter of weeks or months, you know, multiple other legal analysts that D.A. Bragg jumped first and issued this indictment and that might prod others to come forward. Do you think there are others sort of leading investigations into Trump? Do you think there's actually that sort of thinking and analysis amongst prosecutors, Leah?

No. I mean, I think the most plausible explanation for the timing of at least the New York case is they're bumping up against the statute of limitations. And so, like, there was a time limit on when they would be able to bring this case. And it was apparent from, you know, the things that they were saying and other things we've learned in the last week, like the fact that Vance said that they were basically told to stand down by SDNY when that was still under the supervision of the Trump administration. And the Vance office had also been bogged down in trying to get Trump's tax returns, you know, in the case that went all the way up to the Supreme Court. And so there are all sorts of reasons why it takes a while for some of these cases to proceed. But all of the cases also have different time constraints, you know, as far as statute of limitations and other kinds of considerations. And here, again, it seemed like the five-year statute of limitations for the felony crimes was going to expire based on some of the last acts that went into trying to conceal the

falsification of these business records back in 2018. So that seemed to me to be like the best explanation for the timing of at least the New York case. Got it. Speaking of the timing, you see this kind of this argument that, oh, this is the weaker of the cases. Wouldn't it have been better if we started with something like Fulton County or the Documents case or the January 6th case? In a way saying, oh, I wish these prosecutors

were a little bit more political in how they approach this, while at the same time worrying that this Bragg case appears to be political. How do you unpack that problem, that sort of logical confusion, Kate? Yeah, I mean, I think that it's sort of like a heads, Trump wins, tails, everybody else loses, right? Like sort of logic, like it's wrong that this sort of went first because it's political, but also be political to do the coordinating. I

mean, I think that it's right for all these prosecutors to be independently assessing the evidence in front of them, considerations like Leah mentioned of statutes of limitations and proceeding without giving any thought to the other investigations and how optimal sequencing might work. I'm sure they're not explicitly coordinating about this. I doubt they're even, or at least I'm sure they're trying not to put any real thought into this. I will say, though, I think in a subtle way, not as a matter of actual coordination, but I do think that it is possible that this has something of like a damn breaking effect only in that if you really are the first and you don't have some external pressure like a statute of limitations about to run, I can imagine spending a lot of time making sure the documents that you're going to file that will be the first

indictment of a former president are absolutely perfect. And I imagine that the bar may be a little bit lower if it's going to be the second or the third. And so you maybe, if your case is ready, but you might take another week or two to really polish it, you might go ahead and announce it without that additional kind of vetting. So I do think that on the it, you might go ahead and announce it without that additional kind of vetting. So I do think that on the margins, it might move things a little bit faster in the other cases. I think it's a great appetizer.

Yeah, I think it's, yeah, I agree. I think Bragg did throw the first brick at Stonewall. It's like your first kid is eating organic food and going to bed on time. The second or third, you're just like, throw them in a cage with some water and some pellets. I think the main course is coming. I'm going with my yeah i'm excited and look he's it sounds like he's gonna have a lot of court dates between between now and iowa between between now and november he's gonna be going back and forth

the campaign trail you could have one lawyer in new york being like i'm sorry i'm not available during that time i'm on trial in fulton county you see you guys got to work together i got a packed dance card yeah it's gonna make debates complicated. Can I just say one additional thing? Yes, please. And I just think it's worth pausing over the fact that in the last few years, we have seen Republicans be very attuned to the possibility of protests at justices' homes. And there have also been real events of violence against judges and their families. In particular, Judge Salas' son was murdered when a gunman went to her house.

And the idea that Trump Jr. would do this is extremely appalling. And I would think slash hope that if anything would generate like more concern about protective orders or gag orders or like procedures to protect judges, like it would be this. Not only did Don Jr. tweet the picture, Trump in his speech specifically raised the issue of the daughters. Oh, she worked for the Biden-Harris campaign, brought her up, talked about the judge, talked about the judge's wife,

said that Bragg should be prosecuted. I mean, the speech was just like typical Trump bullshit and there was like nothing too exciting about it. But that, I was just like, what the hell did he just do, especially after the judge just warned him about this? Again, like it is really scary knowing, again, that this is something that has happened. And, you know, the gunman who went to Judge Salas had a dossier on Justice Sotomayor. quoting pictures of the judge's family, and then again, bringing the judge's family up in the speech, like, I am concerned about what it seems like, you know, they are emboldening people to do or test the limits of. The judge has power here, right? The judge can stop this in a number of

ways, if he is willing to go far enough. That's true. But like, as Kate was saying, the standard for imposing a gag order is high. The judge said he didn't want to have to do so. And I worry that like, this is a circumstance where wanting to treat this case differently, because it involves a former president and trying to err on the side of giving this defendant the benefit of every procedure and every doubt will make it harder for the judge to impose a gag order, even though I think it is already showing signs that there would be very good reason to do so, at least in some capacity. Yeah, I mean, the context I was just gonna add is, you know, what Donald Trump Jr. tweeted was a Breitbart story about the judge's daughter who

worked at a firm that worked for the Biden-Harris campaign. So if he's tweeting news articles, do you get into very complicated sort of First Amendment territory with a gag order? So I don't know whether like a news article in particular would, you know, raise additional First Amendment concerns in addition to whatever the concerns would be had Donald Trump Jr. just said, you know, the judge's daughter worked for a firm that worked for the Biden-Harris campaign. I don't know if that adds any additional speech concerns there. But again, the fact that it is now being repeated is within 24 hours. It's just really concerning.

Yeah. And I think for all of the kind of articulated concern about overreach by the DA or, you know, novelty of legal theory, like you're not hearing broad cross-partisan condemnation of attacks on the judge, attacks on Bragg and his family, right? Just, you know, rhetorical at this point, but obviously Bragg actually did receive a threatening letter, powder in an envelope. So this isn't just rhetoric. People are taking action directed at the players in this prosecution. And we are literally one day in, in terms of the actual arraignment. So the stakes are really high. And whatever the judge could do, you would imagine that there would be broad condemnation of that kind of rhetoric. And I

so far have not heard it. One day in and one indictment in with potentially many more to come. Both of you, thanks so much for joining. And I'm sure we'll be talking to the two of you and Melissa many times over the next year, next two years about Donald Trump investigations. The rest of our lives. And hopefully other stuff, too. Thanks for doing this tonight. Thanks, guys.

Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizzuo, Michael Martinez, and Ari Schwartz. With digital support from Amelia Montooth. We will see you next time. Thank you.