The Daily Signal - BONUS | Legal Expert Explains What We Know About Trump Indictment and What’s Next

Episode Date: March 31, 2023

Much remains unknown about the charges being brought against former President Donald Trump, Cully Stimson, Heritage Foundation senior legal fellow, says.  Trump is the first former president in history to face criminal charges. News of his indictment broke Thursday night following months of investigation led by Manhattan District Attorney Alvin Bragg.  Stimson joins “The Daily Signal Podcast” to explain what may happen next and what Trump’s legal team is likely doing as they wait for the details of the charges.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

Former President Donald Trump has been indicted. This is the Daily Signal podcast bonus episode. It's Friday, March 31st, and I am Virginia Allen. On Thursday night, we learned that President Donald Trump had become the first former president in history to face criminal charges. So what charges is he facing and what's going to happen next? Here with us to explain that is Heritage Foundation Senior Legal Fellow Cully Stimson. Cully, welcome back to the show.

Thanks for having me. So let's get right into this. What do we know about the charges that former President Donald Trump is facing? Well, what we know is that there are news reports and Donald Trump's own defense attorneys indicating that the grand jury has indicted him. The indictment is sealed, which means it hasn't been released to the public. We don't know when it will be unsealed. We've also seen news reports that he will, there will be an arraignment on Tuesday of next week. we don't know what's in this indictment, what the gravamen of the offense is in this indictment. We've heard that there may be up to 30 some charges in this indictment, and we don't know whether the governor of Florida is going to cooperate with the extradition request, although that would be a decision that the former president could make to say, look, I'll waive extradition, and I'll show up to be arraigned whenever the arraignment is.

So I want to talk a little bit more about Florida Governor Ron DeSantis in a moment and his comments. But what is likely going to play out here? Are we going to see Trump in handcuffs and put behind bars? I think it's really important not to get ahead of the facts and the story here. You know, we don't know what we don't know, to quote my old boss, Don Rumsfeld. In a typical case, and this is not a typical case, where it's a misdemeanor or low-level felony. Somebody's not going to be put in handcuffs.

There's not going to be a perp walk. It's happening right now as we speak across this country, people are being charged with misdemeanors. The rubicon that's been crossed, however, is indicting a former president. Whether it's a misdemeanor or felony, that is a huge deal. And that will have ramifications down the road for this president who's currently in office,

former presidents and future presidents. And it's a really bad precedent. Yeah. Collie, in your career, you've indicted dozens of cases. Can you explain the difference between an indictment versus actually proving someone as being guilty of certain crimes? Sure. In the states where most of the crimes are prosecuted, the DA has, depending on the state law, the ability to either take a case to a grand jury, which is a secret proceeding, there's no judge and there's no defense attorney, and ask them to consider handing down an indictment on certain charges. And the standard is probable cause. That's it. It's a low standard. So you hear the expression, Virginia, you can indict a ham sandwich. You know, you always hear that expression. You can't indict a ham sandwich.

It has to be a person. But secondly, there's a huge gap. evidence-wise, between and proof-wise, between getting to probable cause at an indictment, and then pulling together and marshalling all the evidence and bringing the witnesses to trial and having them testify consistent with what you believe the evidence is to prove the case beyond a reasonable doubt. So probable cause is a low level, right? Beyond a reasonable doubt means you are firmly convinced that the evidence points to this person and he or she is guilty. And so there are a lot of cases that fall apart between indictment and a verdict.

The ethical standards of prosecutors, either at the state or federal level, is you should not bring a case, even to a grand jury, unless you have a reasonable likelihood of success on the merits at trial. So if you think it's a loser, you don't take it to a grand jury. Now, there may be reasons you want to take a case to a grand jury. Like, for example, it's pretty routine if a police officer is involved in a fatal shooting. Some jurisdictions will take the police officers if there's a question as to his criminal culpability to a grand jury. And if the grand jury refuses to indict, that means no bills, you hear that expression, no bills the indictment, well then that's the end of it. But here, we don't know what charges are in

this indictment. We don't know if there is a failure of proof from indictment to a trial, if there ultimately is a trial. And so I just don't think we should get too far out ahead of this until we see the actual language in the indictment. Yeah. Let's loop back to talking about Florida Governor Ron DeSantis for a few moments. So shortly after the news broke, Governor DeSantis tweeted out that he would not extradite Trump from Florida. What does that mean for this case moving forward and specifically for Alvin Bragg, who's been leading this investigation of Trump? Right. What that really means is that it's now in Trump's court. If Trump just wants to, to agree to show up in New York next week or whenever the arraignment is, that's the end of it.

But if Trump says, you know what, no, you can't force me to leave Florida and the governor, whoever the governor is, right now it's Governor DeSantis, says, you know what, we're not going to cooperate with the extradition request from New York. Ultimately, he will be extradited. Okay, there's no real legal grounds, I think, for them not to ultimately, because it would go to a judge, a state court judge. The New York prosecutor would have to show up in the state court in Florida and argue, look, there's nothing within the four corners of this indictment that it seems untoward. You can't look underneath the indictment to test the quality of the evidence. And a state court judge is going to find herself in the position of saying, well, you know, I'm not.

allowed to look under the four corners of the indictment or question the veracity of the witnesses. And therefore, Mr. Trump, I'm inclined to grant the extradition request. Trump may decide to appeal to an appeals court. They may ultimately go to the Supreme Court. But at the end of the day, unless there's a defect in the indictment or in the extradition request itself, he's going to end up in a New York court. So it sounds like if anything, it would just drag the process out longer. Right. And there may be tactical and strategic reasons from the defense to do that. A governor is the chief law enforcement officer of that state. And the governor can either agree to cooperate or not cooperate. But at the end of the day, unless there's a defect in the indictment or in the extradition request itself, almost every single indictment, extradition request ultimately is granted or is carried out.

So looking at what we know about what this grand jury, the information that they were looking at, and District Attorney Alvin Bragg's investigation into Trump, what do you make of this whole investigation? Well, first off, you know, we have a whole chapter in our upcoming book on rogue prosecutors about Alvin Bragg. He's one of the eight prosecutors we talk about. Alvin Bragg is a Soros bought and paid for rogue prosecutor. He has refused to prosecute entire categories of misdemeanors in his jurisdiction. He's watered down most felonies to misdemeanors, so it takes a lot of chutzpah to indict somebody for essentially a scrivener or bookkeeping error for an alleged incident that occurred almost a decade ago. But the theory is we understand it from public reports, and we won't know, Virginia, until we actually read the words in the indictment.

But let's just go with the stuff that's out in the public domain. Sure. Is that Donald Trump's then lawyer, Michael Cohen, engaged in a legal settlement with Stormy Daniels and paid her money consistent with that legal settlement so she would not air a prior relationship of some sort with the then candidate. I was actually not even a candidate, Donald Trump back in 2006, I think. And legal settlements happen all the time. It happens in Congress. It happens in the media.

It happens in corporations. And people engage in legal settlements every day. And later on, the Justice Department investigated, and so did the Federal Election Commission investigate, whether or not that $130,000 in that legal settlement was actually an illegal campaign donation. that should have been reported on his campaign-related finance reports as he was running for president. And they opened an investigation, and both the Justice Department and the FAC closed those investigations without taking any action. So there were no federal crimes or offenses alleged. The theory here is that even though the entity that has the job of looking to see whether there's a federal election

fraud or campaign-related finance lack of disclosure, even though they didn't, they waved off on it. At the state level, he should have kept better bookkeeping. And therefore, that's a state misdemeanor. And they're trying to turn this state misdemeanor into a state felony. Wow. And so I'm going to be really interested in reading the language of how they get from A to B to see in this because essentially it's a bookkeeping theory that he should have reported on his state business records a bookkeeping numerical number of $130,000 and somehow that violated

state law. Now, when you have 30-some charges, maybe there are other things out there related to other aspects of the Trump legal business organizations. So we do. just don't know what else is there, but if the whole focus of this indictment is on this bookkeeping error, and by the way, the state has no jurisdiction to look into presidential or federal office holders or candidates' money payments, state can look at state office holders or state candidates. But the Fed's stuff that happened at the Fed level, the stuff that happened with his presidential run, the state has no say in that, and especially when the federal government and the FEC waived off on that. So why do you think Alvin Bragg is pursuing this?

I mean, that, correct me if I'm wrong, but that's a term that you've sort of coined is rogue prosecutor, and you've done so much work on rogue prosecutors. You mentioned your forthcoming book. what do we know about Alvin Bragg's possible motives here? And if he is an individual who has said, I am not going to prosecute certain misdemeanor crimes in the name of equity, in the name of social justice, why is he prosecuting this one? No clue. And yes, Zach Smith and I are my co-author in our book and all of our scholarship for the last three years coying the term rogue prosecutor. But you can't really get into the mind of why Alvin Bragg decided to do this. And by the way, he, Alvin Bragg, hired a former federal prosecutor who did white collar crime from the Southern District of New York

and the U.S. Attorney's Office into his office specifically to investigate Trump and this bookkeeping Scrivener error and this payment to Stormy Daniel under this legal settlement. And, And when Alvin Bragg had some skepticism about bringing these charges, this person quit in a peak of anger. And he wrote a book that came out in February, talk, you know, some title like, you know, U.S. versus or something against Trump, you know, a tell-all book explaining why Alvin Bragg should have indicted Trump. Well, obviously, if the stories are true, Alvin Bragg has had a change of heart, and now he has brought the indictment. We don't know if any additional evidence has been developed during the grand jury process. So it looks at least from this book and from the news reports that Alvin Bragg had some skepticism, as he should have, about indicting him in the first place for this bookkeeping error. again, if that's the gravamen of the offense, and that's it, charged 30-some different ways,

that's going to be a tough lift. And even the Washington Post and the New York Times, as John Malcolm and a couple other colleagues at Heritage have written in the Daily Signal, which I hope your listeners look at the Daily Signal blog post called the indictment of Donald Trump, the players, the cards they're playing, which came out last night. It is hard to understand how they can sort of turn this bookkeeping scrivener error into a felony offense. What is the timeline, the likely timeline that we're looking at here? I know there's a lot of factors that could make things go longer, but in all likelihood, how soon do you think it's going to be before we learn the details of the charges brought against Trump?

Yeah. So the order of March typically would be you notify the defense. attorney that the person has been indicted. Apparently, that's happened. Secondly, you notify the defense attorney that the arraignment has been scheduled for X date in the future. Apparently, that's next Tuesday. We'll see whether that turns out to be the case. Typically, a defendant will just show up for the arraignment. Now, if he wants to honor the extradition request and just go to New York, that's it. He'll be arraigned on Tuesday, an arraignment takes five minutes, and that's it. And then the case is set for the judge will set a motions calendar, and then the judge will set a trial date in the future, probably six months or more down the road.

And there'll be motions and pretrial motions between that time frame. That said, if Trump says, you know, I'm not going to go to New York, you've got to force me. And he wants to drag this out. And the governor is going to honor the defendant's skepticism and not automatically grant the extradition. request, that could drag out for a few weeks in Florida courts. Okay. What are the possible outcomes? What's the best outcome for Trump and what's the worst outcome for Trump?

Well, I'm not going to talk about the political good or bad outcomes because I'm just the legal beagle here and I'm just going to give you the legal answer. Obviously the best outcome is for him not to have been indicted. Now that the indictment has been handed down, the next best possibility was they withdraw the indictment, which they could do that. The likelihood is probably small. The next best outcome would be that the arraignment takes place. Pre-trial motions happen, and one of the motions is a motion to dismiss the indictment, and the judge grants the motion to dismiss the indictment. The next best outcome would be they chip away at some of the charges or

most of the charges during the pretrial motions that it will take place in the next weeks and months so that you boils it down to just a few charges. And of course, the next would be he goes to trial and at the halfway point of the trial after the government's finished putting on their case in chief, the judge grants a motion to dismiss the charges. Because at the halfway point of a trial, even though the judge has to view the light and the light most favorable to the government, the judge can take the case away from the jury at the halfway point. And then the final best outcome would be for him to go through the whole trial and then to be acquitted. So there's a lot of off-ramps along the way, and we have no clue as to how this is going to play out.

Yeah. And there are other investigations currently going on into former President Trump. what do we know about those? And is it possible that Trump could soon face multiple charges, even in different states? Yeah, there's two other investigations. There's a January 6th investigation by Jack Smith, and he's a pretty good federal prosecutor. And so we don't know where that's going, but this guy is a hard charging federal prosecutor who has a pretty good reputation in the federal prosecution world. and then Fannie Willis down in Atlanta. She is, as John Malcolm and Zach Smith and Hans von Spakovsky detail in this Daily Signal piece, investigating him for charges related to his phone call with the Secretary of State down there telling him during the phone call allegedly to find more votes because Trump was under the belief, according to his people.

that there were extra votes that were cast in his behalf during the last election. And so she is, there are problems with her alone and her case, as Hans and others detail in this piece. The real question to me is not how to each of these stand on their own, because those are three individual cases that have to rise or fall on the strength of the evidence, is what effect does this brag indictment, because this is the first one to come down, going to have on either of the other two investigations. It could influence them. It shouldn't, but it could. And if, for example, Trump is successful in finding an off-ramp on some most or all of these charges out of this New York case, that could have a cascade effect, at least with respect to the state charges in Georgia.

I don't think it's going to necessarily have an impact on the January 6 investigation and whether there's any criminal culpability on his part for January 6. But we are in uncharted waters, Virginia. I mean, there is a reason that people exercised prudence and judgment for the past couple hundred years and did not indict former presidents on anything. That's not to say a former president is above the law. But when you're indicting somebody on a bookkeeping matter related to a legal settlement that happened a long, long time ago, what comes immediately to mind is what's really going on here? I mean, politics creeped into this at the very least.

And so we don't know at this point because the indictment hasn't been unsealed whether this thing is laughable or whether it has legs. So it's important to just take a deep breath and wait to see the indictment. And it may not even be a speaking indictment. A speaking indictment, which is a term of art that lawyers use, is an indictment that not only says you are charged with X, but then it has paragraph and paragraph and paragraph explaining what happened and how you got to that charge. It could just be you're charged with this. You're charged with this. you're charged with this. On the federal side, the practice is to do a speaking indictment.

On the state side, sometimes you don't do a speaking indictment. So we have to see not only what he's charged with, but how much the indictment actually alleges in terms of whether it speaks to the broader issues or whether it's just the charge. If you were one of Trump's lawyers, what would you be doing right now? Well, I'd be waiting to see what the indictment says. And I'd be telling everyone else to calm down and take a deep breath. And then I would have the, you know, make sure that the political types, who advise him, do whatever the political types do. I don't play in that world. But as the lawyer, you have to be cool, calm, and collected.

You have to be forthright, honest, and direct with your client. You have to explain that we don't know what we don't know. And then you have to decide, as a matter of course, whether you're going to try to try to. fight the extradition pluses and minuses, or whether you're not going to fight the extradition pluses and minuses and assuming he does not fight the extradition what he would come to expect during the arraignment and during the pretrial process, et cetera. Of course, Donald Trump is a sophisticated person. He's had lots of lawsuits been involved in. Either as the plaintiff or defendant throughout his whole career, his sister's a federal judge, and so he's a pretty sophisticated

client, but still it's important as the lawyer to explain to your client what the future looks like legally. Colley Stimson of the Heritage Foundation, senior legal fellow at the Heritage Foundation. For all of our listeners, if you want to hear more from Colley, if you want to read his writing, his reporting, you can do so at heritage.org. Cully, thank you for your time today and your expertise on us. Thanks for having me. The Daily Signal podcast is brought to you by more than half a million members of the

Heritage Foundation. Executive producers are Rob Lewy and Kate Trinko. Producers are Virginia Allen and Samantha Asheris. Sound designed by Lauren Evans, Mark Geiney, and John Pop. To learn more, please visit DailySignal.com.