The Daily Beast Podcast - What Happens to Docs Case if Donald Trump Wins 2024 U.S. Presidency?

Episode Date: June 16, 2023

On this week’s episode of The New Abnormal, CNN Legal Analyst Elie Hoig joins the show to talk about Donald Trump's recent legal jeopardy and just how much trouble he is in. Then, Slate’s Dahlia Lithwick discusses the legal maneuvers we may see around the former president’s indictment. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy, and current cable news conscientious objector. I'm a former libertarian who now sits pretty comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. What an excellent show we have today.

CNN legal analyst Ellie Honig joins us to talk about Trump's recent legal jeopardy and just how much trouble he's in. Then we'll talk to Slate's Dahlia Lithwick about the legal maneuvers we may see around Trump's indictment. But first, let's have some fun. Andy, dear friend, it seems like your former place of work. Fox just really can't ever seem to hide their disdain for our current sitting president. The recent Chiron that they had and apparently had to walk back was so fucking over the top. Like you really did need to screenshot it in order to see what it said. And this is how it read.

Wanna be dictator speaks at the White House after having his political rival arrested. I mean, I would laugh if they didn't have tens of millions of viewers. I would think that this was outrageous if it also just wasn't par for the course with Fox. But I don't understand how people watch this shit and think that they are becoming better educated. How does it sit with you, friend? This is just one of so many things that it would be nice to just treat as a joke, but you can't. This is so beyond the pale, even for what they've become, that it's just absolutely unreal. There's no even attempt at a semblance of the truth or of facts. They took it down and they put out a statement saying the Chiron was taken down immediately and was addressed. First of all,

I would quibble with their use of the word immediately. From what I saw, I was up for a decent amount of time before it was taken down. They can say they addressed it all they want. That, to me, it starts looking, you know, a lot like the meme, like Tim Robinson from, I think you should leave the guy in the hot dog suit saying, you know, we're looking to figure out how this happened or who did this. We're looking to find out who did this. You did this. Like, this is the environment you've set up. Don't pretend like this is someone going off the rails. This is who you are. Again, I mean, you read it. I've got to read it again. Want to be dictated. Joe Biden, wannabe dictator speaks at the White House after having his political rival arrested.

No part of that is even remotely close to the truth, except that someone was speaking at the White House. Joe Biden did not have Donald Trump arrested. Joe Biden is the worst wannabe dictator in the history of the world if he's a wannabe dictator. They're beyond shame. And so you can call them out all you want. You know, you can say this is outrageous. This is shameful. it doesn't matter. They can't be shamed. And this feels like one of those things that you do and you say, oh, we're going to get in trouble for this. And you say, well, we'll do it. And then we'll pull it down. And we'll say it was a mistake. But in the meantime, we've did it. And that's what this feels like to me. And it's just, it's so disgusting. And I don't think there's anything you can do legally about stuff like this.

You know, the First Amendment is a, it's a pesky amendment. And, you know, it's not a broadcast network. So there's no FCC oversight, really, or anything like that. And I'm okay with, like, that's how it should be. I don't want the government constantly telling cable networks what they can and cannot say. But there has to be some kind of punishment for this. And I don't know what that is other than the marketplace. And I really wish cable companies would step up to the plate and start saying, we're not carrying this anymore.

That, to me, would be the best decision that can be made. And I'm like, and does that look like a pressure campaign? does it look like lawsuits that, you know, come from people who are paying for cable like I am and saying, I don't want to pay for your hate channel? Does it look like the network being labeled like? Because here's the thing, would we be streaming the daily caller? Would we have on a pro-Nazi channel? I don't think that we would. And I wish that people would become a bit more creative and a bit more thoughtful. Look, I get it. I get the First Amendment. You know, I think it's a great one. Better than the second one. I think that it's a great amendment. At the same time, we cannot

allow a network to create disinformation. They, if you ask me, were part of the reason why the insurrection happened. First you had Donald Trump, then you had Fox News. So again, where is their accountability? The First Amendment does not protect hate speech. It absolutely does, though. Oh, that's right. You're right. It does. It does.

Yeah. Right. But you can yell fire. You can continue to yell fire. And then we wonder why 30% of the population is willing to literally throw their lives away in prison, in debt for Donald Trump. And this is why. This is why. It's not, it's not, it isn't to be laughed at, honestly.

It's just basically, it's a vicious feedback loop because you have people that want to hear shit like this. So Fox caters to those people. we know from, you know, from the trial and all the stuff that came out, they are willing to pretty much say or do anything on air to appease and, you know, rile up their viewers. And the viewers love it, so they keep doing it. And the viewers love that they keep doing it. So they keep doing it. And it's just a vicious feedback loop. And I honestly at this point, I don't know how we get out of it. I don't. Other than cable and companies saying, okay, we're not going to carry this anymore. But I just don't see that happening, unfortunately.

No, because, you know, cash rules everything around me. Yeah. So here we are. Donald Trump was arraigned on his 37 federal accounts that were brought by the Department of Justice because of this unwillingness over the last two and a half fucking years to return hundreds of documents that were classified. We've all seen the pictures now of apparently what Kevin McCarthy thinks is a secure bathroom. He thinks that that's perfectly normal because a bathroom, he says, a bathroom door, you can lock. Because that's where the Republicans are in their defense.

Nobody's read the fucking indictment, by the way, that is a Republican outside of, I guess, Bill Barr, who is the only one that has come out and said, oh, you know what? He's kind of fucked. This doesn't actually look good for Donald Trump. And it's him in his own words saying, looky, looky, looky what I got. It's top secret. The way that the mainstream media followed once again his motorcade, the way that they went to the courthouse to cover the arraignment and then followed him to his speech.

It's just continuing to normalize what should be seen as radically fucking out of the norm. Or as we say, abnormal. Right? I can't get over Donald Trump. I can't get over the Republican Party just continuing to debate. themselves, contort themselves to defend the indefensible. You don't need a law degree to have worked your way through that 49-page indictment and been like, oh, God damn, right at the end of it. It's wild. But, you know, apparently he's quote unquote, scared shitless, whatever that means.

Yeah, that's John Kelly, his former chief of staff telling the Washington Post that he said he's scared shitless. This is the way he compensates for that. He gives people the appearance. He doesn't care. And I think all of that is probably true. I don't want to get too deep into psychoanalizing Donald Trump because that's a scary place to be. But look, he's now facing, you know, what is it, 34 counts in New York, 37 counts from the feds. Georgia is probably coming up in a month or two. And it may be that even for someone like him, he's starting to see that, you know, the walls are closing in a little bit. I mean, look, we'll see. He's escaped everything. else in his life so far. So I'm sure at least part of him believes not without reason that he'll

escape all of this too. But I just want to go back to what you said about Tommy Tuberville. I know it's pointless because he just dumb. But it's the rare bathroom door that locks on the outside. Yeah, the lock on a bathroom door is generally on the inside, which doesn't do much to keep people out of it unless you're in there. Like, I don't know why. You deliver so much fucking sense and think it's going to be picked up, Andy. I don't. I know it's, like I said, I know it's pointless. I just every once in a while someone says something and it's like, even for possibly one of the dumbest people in America, that's unbelievably dumb.

But getting back to Trump being scared and all that stuff, I mean, so you have John Kelly saying that. You have Stephanie Grisham who used to work with him saying similar stuff that what he does is he surrounds himself. with cheering crowds. That keeps his ego stoked and keeps him from thinking about all the bad stuff. That's kind of like my equivalent to that is playing video games. But, you know, to each, their own. I hope he's scared. Like, I like to think of Donald Trump scared that there might actually be repercussions for some of his actions. Because again, there haven't been any his whole damn life. And this guy has skated through everything. He has consistently failed up. And he's not even a mediocre. white guy. Like, he's just a low-quality white guy. And it would be nice if at least finally,

even if it's just in the back of his mind, there's a little bit of a thought that, like, holy shit, maybe I won't get away with this one. But again, who knows? I'm not a psychologist. I'm not a psychiatrist. But, like, the diagnosis that would be on him, I mean, the classic narcissism and just his need to have people cheering for him to, like, fill whatever. whatever empty chamber is where his heart is supposed to be, is just so pathetic. You know, you're right. He's not just a mediocre white guy.

He's fucking pathetic. Yeah. He took those documents. One, I believe because he wanted to make money off of them, which we will find out more, God willing, that Judge Aileen Cannon actually, you know, does her job like a judge and not a Trump supporter. But, you know, he took those documents,

one, because I think that he wanted to sell them. to make money for his debts, but also because he wants to feel cool, Andy. Because he wants to be looked at as that guy. Look what I have. I have classified stuff. I'm so cool. Look what I can show you. I could have declassified this when I was president.

But now that I'm not president, I can't. That's how much power I have. Like he just sounds so fucking pathetic. Just like me. Just please, please, please, like me. Needing to force himself on women because, I mean, Stormy Daniels, she told us, right? She told us the truth. Small hands. It's disgusting.

I find Donald Trump absolutely reprehensible as a human. But the fact that this man had our most precious secrets, the fact that his fucking antics put people's lives at risk, our military at risk. And this, the Republican Party that's supposed to be all rah, rah, rah about the fucking Pentagon and the fucking military. Oh, well, the bathroom looks secure to me. Ugh. Yeah, it's insane. And look, you're right. I don't think you have to be a psychologist or psychiatrist to know that Trump is just an unbelievable narcissist and needs the constant praise and the constant adulation.

And if you agree with me, please tweet at me and let me know because it really makes me feel good when you do that. Please tweet. I'm just kidding. Don't ever tweet at me. Please tweet. But the thing that I think that people are missing, right? Especially those who the 30% of America that we've lost forever to MAGA-ism is the fact that we do remember that Donald Trump was president of the United States for four years. And that he tried his damnedest to weaponize the Department of Justice.

and to the extent that he had William Barr stand up and tell the world that there was nothing to see inside of the Mueller report, he did. But I just want to be really clear here that if there were any, quote unquote, goods, you know, let's use mobster speak, if they had any real goods on Hillary Clinton, on Joe Biden and his family, do we really think that we wouldn't have seen indictments over the four years that Donald Trump was president of the United States? United States and controlled pretty much everything. Do we really think that if they had the ability to lock her up, that they wouldn't have done so? So I'm confused about like this push around or

the deflection around, well, Hillary Clinton had documents and her emails and, you know, and Joe Biden and the crime family. And I'm just like, you had four years to indict if you actually had shit. You didn't have anything. That's why there was no indictment because the Republicans had every branch of government. Yeah. I mean, look, this goes back to, you know, it's become a trite expression, but it's trite because it's true that pretty much every accusation they make is actually, you know, them. So when Fox puts up a Chiron that says, want to be dictator speaks at White House, that's Trump. And when they're talking about using the Justice Department to go after their political enemies,

that's Trump. Literally every time they make an accusation, it's something that they themselves have done. But now we find out that there is absolutely tape of Joe Biden taking a bribe. And we found, oh, no, wait, I'm sorry, we found out that we don't really know if there are tapes of Joe Biden taking a bribe, even though Republicans have been claiming there is, and conservative media has been claiming there is. And now we're in sort of walkback mode and you've got Jim Jordan saying we don't know for sure if these tapes exist. This is all according to The Huffington Post. Ron Johnson saying that not only might the tapes not exist but also that the foreign national who spoke to the FBI informant who apparently, you know, is this foreign national is the one who claims there are tapes.

He might lack credibility. Hmm. A Republican lacking credibility? Well, this is the foreign national in this case who lacks credibility. Weird. Now, Jim Jordan and Ron Johnson, who are two of the guys going after the quote-unquote Biden crime family pretty heavily, completely backtracking on this. But it goes to what you said about they had four years of being in office to try to pull this shit on Biden, on other Democrats, and nothing stuck. And they're going full bore on this Hunter Biden thing, which again, you and I have both said consistently from the beginning.

and I don't think anyone on the left has not said this. If Hunter Biden broke the law, charge him. Right. Like, ain't nobody saying he shouldn't be charged. Mm-mm. All of this, you know, what aboutism on the right here? What about Hunter Biden? I'd give a shit about Hunter Biden.

If he's guilty of something or if there's evidence of crimes and you've got the evidence, charge him. Like, that's how it should be. And by the way, I would say the same thing about Joe Biden. And there is clearly no evidence that Joe Biden took a bribe. But if there were, I would not be sitting here saying, well, you can't charge him with taking a bribe. Yeah, fucking charge him. Right.

Because guess what Democrats aren't afraid of. Eating their own. Yeah. Sometimes when it's unwarranted, but yeah. Right. But when it's warranted, like, yeah, if you broke the law, charge him. It's just unbelievable. But you have people that there are still Republicans, Nancy Mace, out here.

saying Joe Biden caught on tape getting bribed and the left looks the other way. Donald Trump's slow walks documents and they want to give him a death sentence. Again, nothing in that is true. Joe Biden has not been on caught tape getting bribed. I don't think the left would not look the other way if he were. And Donald Trump is not guilty of slow walking documents. And it's like when you have to lie to make your point, your point sucks. And Nancy Mace, your point sucks and you suck. The last time my next guest was on, I started off by saying that unless you've been taking a ridiculously long nap, you probably know that Donald Trump was arraigned on 34 counts by the Manhattan District Attorney. Well, I guess now I can say that unless you're Rip Van Winkle, you probably know that Donald Trump was indicted on 37 counts by the Department of Justice.

And here, once again, to walk us through everything is CNN's senior legal analyst, Ellie Honig, author of the great book, Untouchable, how powerful people get away with it. Ellie, welcome back. Andy, first of all, you can't start off a show by, floating the prospect of a ridiculously long nap because that sounds really, really good right now. I know it does, doesn't it? It's been quite a sprint this week and last week, really, with the indictment. I have to say this. You know, we went, I think we're out of unprecedenteds on this one.

Because, right, first it was an unprecedented indictment, criminal indictment of former president. Now it's an unprecedented federal indictment. And if and when he gets indicted in Georgia later this summer, I think we're going to have to say the amply preceded indictment of a former president. Well, it'll be the unprecedented third indictment. That's true. That's true. Or, you know, it's like those baseball stats keep getting like finer and finer and more granular, right? Right. It's like this is only the only time in history, a lefty has hit three homers in the game. Right. So this will be like, this is the first time in United States history. A former president has been indicted at the state level below the Mason Dixon line.

Right. Excellent. All right. So this particular indictment seems fair. It seems like a fairly straightforward case other than the defendant, obviously. I don't mean it's a slam dunk case. I mean, it's, hey, he had documents in his possession he shouldn't have had. He refused to return them. And oh, looky here, a bunch of those documents contain classified information. And by the way, here he is on video talking about it. Like, this seems like a no-brainer in terms of an indictment, right? The indictment and the facts here are very strong and very straightforward. And I don't just sort of reflexively say that. But there's a, But there's a huge, however, and that is the jury, which we'll get to later.

Right. But just looking at this indictment, you know, there is sometimes a tendency in media. Everyone just looks in an indictment. You go, oh, it's a devastating indictment. Has anyone ever really looked at an indictment and said, that's a lukewarm indictment. But, I mean, I have. I mean, I've seen enough indictments in my life that sometimes you'll see an indictment and either say it doesn't overwhelm me or sometimes you'll see an indictment

that just doesn't answer the question. That's very broad. In fact, the Manhattan DA's indictment is just basically honor about whatever day, this defendant did hereby commit this crime. This indictment is different. This indictment, I've read it I don't know, many, many times over now. And it is well constructed. It is very clear. And the thing that they do is every substantial or significant factual allegation is supported with a specific site to a piece of evidence to a text, an email. There's photos, you know, memorable photos all throughout this document. So they have a very, very strong case. And I think if this was a

mechanical process and you just entered, here are elements of crime here as evidence, they would spit out result equals guilty. But this is a human process and there will be human emotion and politics that enter into play. And to me, one of the biggest stories that have happened in the last week, the second biggest story other than the indictment itself is where? And the fact that it's in Florida, I think is hugely important for reasons we can discuss. So, okay, so let's jump to that. Why did DOJ choose to do this in Florida? Because they had a choice here, right? They could have picked D.C. as the venue. They may have had a choice. And I give DOJ credit here because I think that by charging it in Florida, they've made the right move legally,

the right move sort of politically, perhaps though at the detriment of their own chances of, quote, winning. Okay. When you're a federal prosecutor and you're charging a crime, you have to charge it in one of the federal geographic districts where it occurred. Now, a lot of crimes happen in multiple districts. And so then you do have quite a bit of leeway to charge in any of those districts. I used to work at the Southern District of New York and Manhattan, which is sort of famously or infamously aggressive. I did a one case, a mob case where we had 20-something defendants and 99% of the criminal activity happened in a different district, happened in Brooklyn and Queens, which is a different federal geographic district. And yet we had one phone call that was placed

in Manhattan, and that was enough to give us proper venue. It was challenged, but we got over it. The problem here is, you know, it looked for months and months. and months like this case was going to be in D.C. The grand jury was in D.C. And the theory would be, well, the crime here, the taking of the document started in D.C. Right. It's like the analogy would be, well, if someone robbed a bank in D.C. and then took the money down to Florida, you could charge it in D.C. for sure. But here's the problem. And here's why they might not have had proper venue in D.C. Because the crime does not start until Donald Trump is no longer president. The crime does not start until 1201 p.m. on January 20, 20, 2021. Because while he's president, he can definitely have these

documents. There's no unlawful retention of sensitive documents when you're president. And the crime here is just retention, keeping them, having them. And the problem is Donald Trump was physically out of D.C. gone from D.C. And the documents were physically gone from D.C. a bit before that. So if they had brought this case in D.C., they might have lost on venue. And they certainly would have had an extended issue. pre-trial issue and maybe an appellate issue. And so legally, they made the right move by going to Florida. They also made the right move politically, frankly, because it takes away the ability of Donald Trump's supporters to say, look at them. They're cherry picking the most favorable possible jury they could get by charging in D.C. They're stretching the rules here. But that brings us to

the third point. And by the way, instead, they've charged Donald Trump on his home turf. But if you look at what this jury's going to be, how this jury is going to be composed, do you know, Andy? I'm going to put you on the spot here. It's just a guessing game. Okay. No prizes or punishments. What percent of the vote in 2020 did Donald Trump get in the District of Columbia? Oh, man. I would say under 10 percent. Ding, ding, ding. 5.4 percent, meaning 94.6 percent of voters in D.C. voted against Donald Trump in 2020. As a prosecutor, you love that jury pool. Florida, of course, Trump won Florida. He got 51 percent. And even if we look at the southern counties where this is likely to draw its pool from, it's jury pool. Miami-Dade and Palm Beach, he's still got 40, 45 percent. And mathematically, that means he's virtually certain to have three, four, five, he could have six or seven Trump voters on the jury. Now, you know, a purist would tell you, well, but a Trump supporter is not necessarily going to

vote in his favor, nor vice versa, to which I say right, but they're human beings. And given the choice, if you're Donald Trump, you want as many of your voters as possible in that jury box. And that brings us, I guess, also to Judge Cannon. Yeah. So another thing the prosecutors did that's really interesting, if you look at the documents that are attached to the indictment, there's a sheet where the prosecutor, where DOJ has to check which of our six vicinages, which of our six localities should this case be placed in. And they, DOJ checked the West Palm Beach or the Palm Beach location, which means they knowingly went into a vicinage, as we call it, meaning like a subdivision of a district, where there were only, I forget if it's, I don't know if it's three. or four, but either three or four judges total. So they gave themselves DOJ one in three or one and four chance of drawing this same judge, Judge Eileen Cannon. And sure enough, that's whose name came out of the box for them. So I've seen, you know, I've seen some people say, well, she has to recuse herself, which seems like nonsense to me. I don't think she has to do anything. I've seen other

people say she should recuse herself, which is obviously not an objective statement, I guess. What's your take on this? Do you think, given her history, that she can be a fair and impartial arbiter here? I do not think she has to recuse herself. I do not think she will recuse herself. I don't know her well enough to, I don't know her at all, to say whether she can be fair and impartial. But let's first of all, how could that happen? How could she recuse herself? Well, either she can decide. And judges, by the way, do this all the time. They say, oh, I actually know somebody who's involved in the case or I have a financial interest. And you recuse yourself. It's not, by the way, a mark of shame. A lot of times it's the right thing to do. Sure. Or DOJ can ask her. They can make a motion. Judge, we think you ought to recuse yourself. And then if they lose, maybe appeal it and say, hey, appeals court, we think you should pull her off the case. But DOJ, very, very rarely does that. They're very reluctant to do that for two reasons. one, they don't like to get into the game of appearing like they're judge shopping. They don't want it to look like, well, there's some judges we like and some we don't. And two, it's kind of awkward, right? Because you're saying, Judge, we think you're biased, you should go.

And then what if the judge says no, right? Right. Yeah, it's a little dodgy. So start with that. The two bases that people have put forward for why she might have a conflict. Both of them are worth noting, but I don't think either of them is enough. One of them is that she was appointed to the bench or nominated to the bench by Donald Trump. You want to talk about unprecedented.

This is unprecedented because we've never had a person who had the power to nominate federal judges sitting at the defendant's table. I don't think it's enough. There are nominees of presidents who have interests in cases all over the place. There are Biden nominees who are ruling on Biden administration policies. That's just unavoidable. It's a little different, I guess, when the guy himself is a criminal defendant, but I just don't think that's going to do it. Then there's the fact, as you mentioned, Andy, that earlier in this case, Judge Cannon, over DOJ's objections, granted Donald Trump's motion for a special master, someone to review the documents before DOJ got them.

And then she was reversed pretty decisively. There's reversals and then there's reversals by the Court of Appeals, which was, by the way, a conservative court of appeals. All three judges were, I think one was a Bush appointee and two were Trump appointees. And people have said, well, look, she's hopelessly biased. That, that to me is nonsense. District court judges get reversed all the time. It doesn't mean you're biased in favor of whatever party you ruled for. that you got reversed on. If that was the case, I mean, you know, you talk to any district judge on the planet and they've been reversed. I actually ran into a former supervisor of mine who's now a district judge and the train station the other day. We were chatting about this. I said, and how many times have you got reversed? He's been on the bench 10 years now or something. He said, oh gosh, I mean, he's a great judge. He said more times than I could even count. Again, it's part of our process. And, you know, I've heard people say, yeah, but she kind of got like super reversed. You know, I mean, it is a more strenuous reversal than you normally see, but that's not a thing.

Didn't they say she acted lawlessly? Yeah, they said she exceeded her judicial authority, basically. So you're right. They didn't quite even just say she got it wrong. They said she did something that judges aren't allowed to do in granting this special master. So that maybe is a little different. But, you know, look, someone's got to make the first move here if they want to get rid of her. And I don't see Judge Cannon pulling herself out of it.

And DOJ has got to make a decision. I doubt it. I doubt they will make that ask. As you said, that makes things awkward. And I always think of the analogy, like if I'm at a doctor's office, I may be annoyed with them, but I'm not going to yell at them and tell them they're a bad doctor because I want good treatment, you know? Right.

This is why you also don't berate your waiter ever. Exactly. Yes, absolutely. Okay. So what do you think is the timeframe we're looking at here? Such an important issue. This is what everyone wants to know. I know.

Okay. Let's look at this realistically. The obvious big cutoff date is the November election, November 2024. So that's a year and five months from now, a little less than that. So, all right, let's also take this. We know that the Manhattan DA's case, the state case, the hush money case, which, by the way, really looks piddly in comparison to the thing. I know. It's sort of the genius of Donald Trump, by the way.

He commits so many offenses that some of them, you just look at it and go, who cares about that? But it really does look piddly. And by the way, increasingly it looks political to me. But we can put that aside. The Manhattan DA's case has already locked up a trial date that starts in late March and then we'll carry through April. It's not going to be a super long trial, but it's going to take him out. So let's look at this trial now. Option A, can he be tried federally before that date?

I do not think there's any way. People say, oh, rocket docket, rocket, rocket, meaning like they move cases really quickly. You're not going to get this case to trial in six months. You would have to start that trial in January because it's going to take six weeks or so. I know people have said, oh, the prosecutor said he needs 21 days. First of all, that's not exactly right. The prosecutor said he needs, DOJ said they need 21 to 60 days. Those are trial days.

Right. Things get last longer and that does not account for the defense case. So you're looking at four to eight week trial. You have to start that trial in January if you want to get that in. That is just too soon. Trump is going to have all sorts of motions, some of which look frivolous and some of which don't. that are going to take time to litigate. Okay, so that's very unlikely to happen.

Now, this Manhattan trial is going to carry through the end of April. You can't just go back to back to back with trial. This isn't just like you can chain smoke these things and put them one after the other, right? A defendant is entitled to bring motions. A defendant is entitled to prepare. And so even if the Manhattan case ends in, let's say, at the end of April, you can't just say, okay, DOJ case, May, you're on. No, the earliest you could do, it would be July, realistically.

You have to give them 60 days. A is to prepare and focus. I do not think a federal judge A is going to want to try one of the two major contenders in all likelihood for the presidency in the July and August and maybe September of an election year. When you have primaries, you have the conventions, I just think there's way too much overlap between politics and the law there. And by the way, I don't know if I would want to try this case as a prosecutor that close to the election because it's already going to be difficult to convince five, six, seven Trump jurors to vote to convict him. Never mind when you're on the brink of the election and he has a 50-50 chance of becoming president. I could readily see, even put aside a

Trump supporter, just to even let's just say someone who doesn't love the guy. I could readily see a juror in August of 2024 saying, look, I don't like this guy. I didn't vote for him. I don't intend to vote for him. But I'm also not cool with the idea of slapping a federal conviction on a guy who has a 50% a chance of taking the White House. That's all sorts of problems. So I don't know that it's in the prosecutor's interest to try this case right on the brink of trial either, on the brink of the election either, I should say. So I was going to ask, and maybe you've already answered this by saying that the New York trial is locked in, but is there a way that like could Jack Smith or Merrick Garland or someone from DOJ sit down with Alvin Bragg and say, look, can you let this slide for a bit so we can do this

one first? Or is that just, is that a non-starter? No, that's a great question. And it's a starter. non-starter. It would take a couple of moving parts, but exactly what you said is what would have to happen. Basically, Jack Smith, or one of his people, would have to call over to Alvin Bragg and say, look, like, there's kind of only one opening here, and you guys have it, right? You're looking for that Goldilocks sweet spot. That's not too soon, not too late. And realistically, March and April is about perfect. And again, you have to build in a buffer either side for prep. And so, you know, would you guys be willing? And look, like, no offense, Alvin Brack. And I should say, Alvin's a friend of mine who I used to work with at the Sun District.

But, you know, as Jack Smith, you call it, no offense, but like our charge is kind of more important and more serious than yours. And if Alvin Bragg agrees, and by the way, this could get Alvin Bragg a nice way to be the bigger man and not have to try his very shaky case is to say, yeah, but then he'd have to go to the judge and the judge would have to agree. And arguably, Donald Trump might have to agree. I mean, he's the one, the defendant is the one who has speedy trial, right? So, gosh, we're getting it now.

Now that I talk it out loud, there's all sorts of. of moving parts. So step one is you'd have to go ask Alvin Bragg. Bragg would have to agree and then go to the court. The judge would have to agree. But it's possible Trump sort of thinking two steps ahead says, no, judge. They indict me first. I'm entitled to a speedy trial here in the state of New York. I want to get this one done. Or you could just say, if you're Trump's people like, okay, who, that's one bullet dodged, at least until after the election. So it is possible, but it would take some complex coordination between some moving parts. And I'm assuming that if this trial or the New York trial, whatever, isn't done by next November and Trump wins,

that's it, at least for those four years, assuming he lasts the four years. Yeah, I mean, 2029 could be a really busy trial period. Right. But there is just no way, and I'm not even, I'm talking only partially legally here, I'm just talking real world. There is absolutely no way that any court will try criminally the sitting president or the elected president of the United States. I mean, federally, it's probably just straight up.

not allowed because DOJ has a long policy against even charging a sitting president. I'm trying one. And good luck to a state court that says, well, we're a separate sovereign and we're going to try. Yeah. Secret Service. I mean, that ain't happening. Yeah. Yeah. I'm just trying to, I mean, talk about unprecedented. Yeah. I've long said about Donald Trump. He's the guy who makes the law school hypotheticals come to life. Right. So, and then I want to ask you, because there's still a DOJ investigation regarding Trump and January 6th. Yes. It feels like that has been kind of eclipsed by the Mar-a-Lago documents, but I assume that's at least in part because, as we said earlier, this case was much simpler and is much more cut

and dry, whereas the January 6th one has just a ton of moving parts and possibilities and trying to figure out, does anything Donald Trump did rise to the level of illegality, etc. But that's still ongoing, right? Yeah, I think you're exactly right. Yes, Jack Smith is still investigating January 6th. And of course, by the way, the Fulton County DA, who I think is going to indict as all but couldn't signal any louder that she's going to indict in August or so. That has to do with attempted election interference. But DOJ, yes, Jack Smith still has the other piece of his case. We just found out recently that Mark Meadows testified to that grand jury. And it's interesting because people have sort of played the, well, will he or won't he game with Jack Smith in January 6th.

On the one hand, I think this charge that's been dropped shows us that he is willing to charge Donald Trump, right? I mean, there's no, you know, we've expanded the permission structure or whatever you want to call it. You can charge Donald Trump. Two people have done it now, including Jack Smith. On the other hand, like you say, that the Mara Lago case is so much more straightforward, compact, understandable. It doesn't get into sort of tricky issues of intent and mental state and constitutional protections of the president and of the First Amendment and that kind of thing. So I don't know which way this will ultimately go with January 6. But again, he's got the same timing issues every day that passes. They get worse with the January 6 trial.

and you can't try them together. They're totally separate. You wouldn't even have venue over January 6th in Florida. So I guess we shall see. One thing I do want to throw out there, Mara Lago, in a sense, has been the greatest gift that ever happened to Merrick Garland. Because assuming he does not charge for January 6,

we don't know, but assuming that's how it played out, I mean, people were furious at the guy, liberals in particular. And now that he's charged Trump with something, even though it has nothing to do with January 6, those who are most eager to see Trump sort of held up in the criminal dock or at least they're piezed. okay, at least you got it here with someone. So Mariccarlin kind of got one fell on his lap there.

Right. Ellie, thank you so much for being here. Always love talking to you. You always make things sound very easy to understand, even to someone as silly as me. Ellie Honig, author of the great book, Untouchable, how powerful people get away with it. You can catch him on CNN pretty much every hour these days. Ellie, thanks so much for coming on. I'm spending my break with you, Andy. Well, I appreciate it. Thanks again. My pleasure. Good to talk to Andy. Folks, I am very excited to welcome back to the new abnormal, brilliant writer, author, and senior editor at Slate and the host of Amicus and an MSNBC contributor and a New York Times bestselling author of Lady Justice Women, the Law and the Battle to Save America. Dahlia Lithwick is here with us. Dahlia, dear friend. Hello. Hello. We, every time we chat, we get to do it on, you know, on. on Nerd Aventures with Mary Trump and our friends over there.

We're just living history. I don't know how, you know, we're just living history and we're doing the best that we can. But let's start off today with what we know about Donald Trump, former twice impeached president of the United States that is now charged with 37 felony counts, including the violation of the Espionage Act and obstructing Justice. This comes off, of course, on the heels of being charged with multiple counts by the Manhattan DA, which is a completely separate case, but with regard to hush money. We also know that other charges are coming from Georgia, potentially in the coming weeks. Let's start off with what just happened with Donald Trump's arraignment with these 37 charges. And the fact that this case, which is just, you know, I know we throw this word around a lot, unprecedented. is going to be before Judge Aline Cannon.

And your colleagues over at Slate wrote an incredible piece on why, all the reasons why Judge Aline Cannon should recuse herself. So I wanted to give you an opportunity to tell us a bit, one, about what you think about the charges that Donald Trump is facing

and also how this is going to play out in front of a judge that had been reprimand, by her own colleagues for her false, loose, foolish interpretation of the law. I mean, on the first piece, Danielle, it's going to surprise you, not at all, because we talk about this so often you and I that the kind of circus atmosphere of the arraignment and the guilty plea was just so dispiriting, you know, the sort of sense that this was a carnival, that there were all these people in costume. Are they going to be violent, aren't they? As though this is how, you know, a trial is conducted. And the former president sailing off, you know, in a motorcade and then covering his meet and greed at Versailles and then, you know, his statements at Bedminster as though this were some kind of feudal, you know, princeling. And that we should be covering it credulously as though it's an event.

So I like to start my answer to your question by saying these are the most deathly serious charges, not just against a former president stipulated. But if you look at the folks who have been charged under the Espionage Act and the sentences they have received and the seriousness with which national security, the defense department, the entire national intelligence. apparatus received a body blow. And you can really read that in Jack Smith's indictment. This is such a deeply, deeply serious crime. And it's probably, again, not worth saying that every sentient human being who has read the indictment says they've got him dead to rights. Like, this is not a tricky case to prove. I talked to Ryan Goodman from just security for my podcast the other night. He was like, I can't even conceive of him. not pleading under these facts. There's no path through these charges for the former president.

And yet, here we are, right? We're treating it like it's another horse race to watch and bet on. And so I like to just start from the proposition that I think one of the pieces of genius of the indictment is that it completely centers the sober, serious body blow to national security, to having allies who trust us to spycraft generally. I mean, all of that has just suffered catastrophic consequences. And the idea that we are now having a discourse about like, ha, ha, ha, you know, Biden had them in his garage and maybe it's better to have them in a bathroom at Mara Lago

because at least the door locks is just how. Oh, Kevin McCarthy is an absolute ass. And that is exactly what he said. He said, oh, well, at least the, bathroom. And I said, this is where we are. This is where we are. This is where we are. Yeah. Okay. So that's the first thing. And I just think it's important because I think, again, you always remind me of this. It's just really easy to get caught up in the stupid horse race coverage. This is not a stupid horse race. Sources and methods were compromised. Allies have reason to not trust.

If Donald Trump were reelected, it is hard to imagine how national security and national defense. defense goes forward given what has been burned. Okay, that's the first thing. Your really important question goes to Judge Cannon and how it is possible that a judge who has heard, I think the New York Times said in her career a total of four criminal cases over four cases, four criminal cases. Over a few hours. And as you said, she just shockingly, shockingly inserted herself back when this was just a document subpoena case and tried to sort of stick a fork in the entire investigation, tried to hamstring investigators, and was spanked, as you said, by the appeals court, not once, not twice, because she was just, you know, it wasn't that she was a close call and she made a bad call,

but she was so happy to distort the existing law and to make kind of declamations in her opinions about how the president is just different and special, which is not true. And to have an extremely, extremely conservative panel on the 11th Circuit just really, really booper in the nose and say, you know, this is dumb and everything you're saying is wrong is presumably the basis to ask her to recuse herself. Real quick, Delia, because I don't want to gloss over the fact that the three judge panel of the 11th Circuit court that reprimanded Judge Aline Cannon were appointed. You're appointed. by Trump and George W. Bush. And can you just speak to how surprising it is for them to have issued the kind of response to her opinions that they did? Judges are reversed all the time at some level,

but when you go back and you read their opinion schooling her on just how reckless she was, how completely out of bounds she was, that really is. extraordinary. And, you know, one of the things that this, as you say, ultra-conservative panel of the 11th Circuit had to explain is that she was attempting to, quote, carve out an unprecedented exception in our law for former presidents that was like beyond the bounce of anything we think about in terms of checks and balances. And so, yes, she was, it's true that judges get things wrong all the time. This isn't getting things wrong. This is, distorting the law to get an outcome she wanted. And the idea that she was just absolutely taken to school by this panel suggests that she should not be hearing this case. And so just, you know, just quickly on the last point, you point out, we had a great piece by Norm Eisen, Richard Painter, Fred Walthheimer, and Slate this week, all of whom are, you know, experts on legal ethics and how judicial conduct has to be monitored. And what they essentially said is they wrote that her decision violated, quote, clear law, that her approach would be, quote, a radical reordering of our case law.

And it would violate bedrock separations of power limitations. These are not trivial errors. And so what they say is under 28 U.S.C. Section 455A, a judge must disqualify themselves in any proceeding where their impartiality might reasonably be questioned. And this is the statute, by the way, we've talked about it in the Clarence Thomas context. This is the recusal statute that governs judges. It's not are they compromised? It's do they look like they are so compromised that they can't possibly decide this case fairly? And she is the poster child, Danielle, for somebody who looks like there is no possible way under the judicial recusal rules that she could hear this case and preserve public confidence in the entire.

judicial system. I mean, that to me, like, I guess, you know, I did not go to law school and it's moments like this that I just, you know, shake my younger self because I'd wanted to. But it just pains me that what I realize more and more is that these judges that have lifetime appointments, whether it be on the Supreme Court or on, you know, a federal court or what have you, is that we, much like our democracy, just presume that the right people are there and that they're there to do the right thing, that it doesn't matter who appoints these judges, that they are there to hear cases and make decisions based on the rule of law. But when you see somebody that, as many of legal experts have said, does not have the intellectual nimbleness or capacity to be able to hear a case

of this level and of this weight, there is no recourse. The Justice Department, and here's the question for you, is the Justice Department, because they would have already, and my thought asked to have her removed from the case. It is always these judges who I now believe are overlords in black coats. It is their decision and their decision alone whether or not to recuse themselves. The DOJ could ask, but the DOJ is already being looked at. And I would say, of course, me, I don't give a damn what Republicans are saying. I don't give a damn.

They're going to say it's political regardless. So you might as well create your case. as to why this particular judge does not have the capacity to hear a case of this level. I mean, two quick table setting points. One, it's worth just saying for a second for listeners who aren't fully familiar with how a criminal trial plays out, she can destroy this case, right? This is not, you know, you have this idea that, oh, you know, maybe she's a little biased, but what can she do?

it's absolutely, I think, undisputed that she can slow walk it, that she can keep evidence away from the jury, that she can do a hundred things that would make it impossible for this case to be proven up in front of a jury. And so this is not, you know, oh, like, I want a different umpire in the game. This is somebody who could scupper the whole proceeding. And I think that's important to say that she has immense, power, both to make sure this happens after the election if she wants, and to determine what the jury does and does not see among other things. The second thing is, you know, I think you and I are not deluded, Danielle. I think that there have been bad judges throughout history, but that Donald Trump really, you know, and much more so than George W. Bush before him or Reagan before him, seated people who were zealots and activists, first and foremost, and judges not at all. And that there has been a juggernaut of people seated, right? This is Matthew Kazmariq, who did the medication abortion case.

I mean, these are judges around the country who, as you said, have lifetime appointments, can't be impeached, can't be removed. And they are not judges. They are not under any construction of even the stipulate that judges are all political, and there's always ideological constraints and, you know, nobody's calling balls and strikes in this business. But these people are lifetime zealots and activists who were seated for that purpose and who are doing the work through their courts that they cannot get done through the elected branches. Okay, those are the two things. So then I guess your last question is this totally smart pragmatic question, which is, why isn't the Justice Department getting on the record saying, like, we hate her? And she's already screwed this up so many times.

And the answer is, as you said, because there's nothing they can force her to do. And do you want to poison the waters in front of your judge? Do you want to squawk and say, this person is biased and unfair and ridiculous and then have to sit in a court with her? And so I think that the approach that they are taking is in some sense the smart pragmatic approach, which is to let lots of other people pressure Judge Cannon informed. And they are certainly, I think there is a case to be made that this judge, if she does not recuse herself, this can be bounced over to the chief judge of the district court, Cecilia Altonoga, who should reassign the case on her own steam because there's a federal law that allows her to assign cases so far as local rules and orders do not otherwise prescribe. In other words, a higher judge than Judge Cannon can certainly say, this is insane. I'm going to save face for Judge Cannon if she can't save face for herself. And I think that's a possibility.

But I think that it is a hugely risky proposition for the Justice Department to storm into court and say, A, we think you're an idiot. B, we think you're biased. And C, we sure hope this doesn't make you mad that we're saying this. and have her rule against them. Yeah. To your point, I think that that is right. I think that if Judge Cannon had any sense, which she doesn't, and we all recognize why she was put there. The funny thing is, you know, I just want to make this point before I ask you briefly about the slate that is in front of the Supreme Court to essentially wipe away rights for black people, queer people, you know, everyone, students, is this.

When we think about presidents placing judges on federal benches, it is usually about what you said. Ideologs. People with ideas on particular policy issues that they want to overturn in the courts because they can't get it done in the legislative realm. This is not why Aileen Cannon was placed in Florida. This is not why she was placed there. She was placed there by Donald Trump to protect Donald Trump. And I just wonder. was it a smart move, in your opinion, for the Justice Department to try this case in Florida as opposed to D.C. Like, do you have to essentially try the case where the documents were or where the documents are supposed to be? So, you know, I mentioned that I just taped with Ryan Goodman from just security. I mean, one of the things he said when I asked him this question,

of do you see any holes in Jack Smith's case? His response was the one hole I was terrified about was doing this case in the wrong venue, was filing this case in D.C. and then having it bounced because most of the action happened in Florida. And there is really good case law that suggests that it could have been bounced. And also that, you know, it would have imperiled a second bite at the apple. So the choice to do this under the venue rule in Florida feels like it wasn't a choice. The downside of filing it in the wrong place would have made this impossible. And so I think they spun the wheel, right? There was a one in 15 chance that they were going to draw Judge Cannon for different numbers,

but I think that's approximately right. And they must have known they would, you know, had a chance of drawing her. And I think the alternative was to file in D.C. And lose the case because they filed in the wrong place. But I will say this. Every single person that I have talked to about this says, in no way does the fact that they filed this part of the case in Florida preclude filing in around Bedminster where we know documents, right, were removed to. We know that from the indictment. Okay.

And nothing preclude. There's a grand jury in D.C. that's been, you know, looking at this case for months, and nothing precludes some kind of follow-on in D.C. But that at this moment, it had to be filed around the documents and the hiding of the documents and the lying about the documents all happened at Mara Lago. It had to be in Florida. And wait, because we are going to see many more, including a January 6th portion of this that will be filed in D.C. We are going to see many more. acts from Jack Smith in other jurisdictions and not to make the mistake of thinking this was the whole ball of wax. This was the initial approach. Does that help, Bany? Okay. It does. It does, Dahlia. And we will leave it there today because as of right now, the Supreme Court has not made decisions on the cases, the really important cases around affirmative action, around LGBTQ plus rights, around student loan debt. So we will have to stay tuned on that and have you back, my friend, when those decisions do come down so that we can walk through them. Dahlia Lithwick, as always, thank you, my friend,

so very much for making the time for the new abnormal. Appreciate you. It's always, always a treat to be with you. And one day, Danielle, I want to be on your podcast and I want us to talk about like bunny rabbits, unicorns, rainbows, and sprinkles on cupcakes. Can we do that? Can we do that? Can Can we book that in for? You know, I would love to. I would love to. And maybe that will come the day that Donald Trump is convicted. Then we can talk about that.

Amen. Okay. It's a date. It's a date. Thank you. Andy Levy. Danielle Moody. Who are we ending the week with for your fuck that guy?

I am going to end with the city council of a place in Michigan called Hamtramic. The council voted unanimously. earlier this week to ban pride flags from being displayed on all city properties. The interesting thing here is that I believe every single member of the city council is Muslim. I bring this up because it's relevant because they are saying that LGBT people need to respect Muslim standards sensibilities. And I just want to say that no, they don't. And there is absolutely no daylight here between what this city council did and what the Christian right does every day and wants to do and wants to turn this country into. Your sensibilities do not matter when it comes to

things like this. You don't like gay people. You think they're all going to hell. Okay, fine. Have your dumb belief. That's fine. You don't get to push it on everyone else. And you don't get to say, well, then, you know, well, gay people, you can't do this because it offends. us. No, it doesn't work that way. I don't care if you're Muslim. I don't care if you're Christian. I don't care if you're Jewish. I don't care if you're atheist and just a bigot. It doesn't work that way. You have free reign to practice your religion in this country as it should be, but you cannot force the tenets of your religion on other people. And so this entire city council gets my fuck that guy for this week, for today, whatever. I am beyond over people saying you have to

respect my religious sensibilities. I have to respect them to the point where, yes, you are allowed to have them. This is America. That's a beautiful thing about this country. I do not have to change my actions, or in this case, the LGBTQ people of Hamtramic shouldn't have to adjust their lives to respect your sensibilities. I can't with religious fanatics anymore. Fuck those guys. There are plenty of theocracies that folks can go ahead and live in, but America is not fucking one of them. And all of this push, you know, freedom of religion, freedom of religion. You know what I want freedom from religion. I am so tired of being dictated to by other people and your religion and your desires and what have you. Go to your church, go to your mosque, go to your synagogue, go to your

cult. I don't care. But you cannot, when we have a separation between church and state, between religion and state, force other people to abide by your religious beliefs. That is not how this fucking country works. And it doesn't matter whether you are Muslim, whether you're Christian, atheists, all of the things that you have laid out. Unbelievable. I'm just so, I'm honestly tired of this shit. Yeah, it needs to go away.

So who is your fuck that guy to close out this glorious week? You know, not as good as yours, I'm going to admit, because I'm kind of hot under the collar still about yours. We're going to point our compass to the marginal state of Kentucky. I'm pointing it directly towards U.S. Representative Thomas Massey, who represents the fourth congressional district of Kentucky. Now, this Dum Dum, who, according to the Courier Journal, he tends to, quote unquote, embrace Tea Party and Libertarian ideals, believes a clause in the U.S. Constitution enables him to read top secret information included in documents involved in former President Donald Trump's latest indictment tied to his handling of classified information aloud in committee hearings, which are broadcast on C-SPAN.

And he tweeted this earlier in the week. He said, quote, for what it's worth, under the Constitution, no member of Congress can be prosecuted for reading aloud on the floor any of the documents Trump allegedly has copies of. Thomas Massey, I get that you. You are a maga fanatic. I get that you have no desire to abide by law and order that you place upon everybody else. But for a party, and I said this earlier, for a party that supposedly loves the fucking military, but what I realize about Republicans, they don't love the military. They love war because they are war profiteers.

That's what they love. They love the money that comes with war. They don't give a fuck about the people. And so to make a stupid ass tweet like this, where you would jeopardize military operations, our national security, all so that you can kiss Donald Trump's ass, this type of bullshit should automatically get people evicted from Congress.

Unfortunately, it does not. But this is why Thomas Massey, I'm not even going to call you a fucking representative because you don't deserve the title. You get my fuck that guy to close out this week. Yeah, I honestly don't know if he's right about the Constitution allowing that. I kind of think he should find out, though. I would love this to be a fuck around and find out moment for Thomas Massey. Yeah, go ahead and do it.

I would say pick something that's stupidly classified and not of urgent concern to this country. But I think he should do it. I think he should be a test case. Put your money where your mouth is. I don't know what in the world this has to do with Donald Trump. So the whole thing is confusing to me. I mean, is he suggesting that if he can do that on the floor of Congress, that then it's okay for Trump to have shit in his hotel bathroom?

I don't really get it. But I don't really get Thomas Massey. He was sort of a libertarian hero for a little while, which I never understood either. and he just seems like a clown to me. So yeah, fuck that guy. Fuck that guy. Hope you enjoy checking out this episode of The New Abnormal. We're back every Tuesday, Friday, and Sunday.

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