Released Tuesday, August 1, 2023. This transcript has been lightly edited for clarity. Questions or feedback? Email ricohotline@serioustrouble.show
Ken White:
Hi, it's Ken White
Josh Barro:
And it's Josh Barro and this is Serious Trouble. Ken, is this an emergency podcast?
Ken White:
It is an emergent podcast.
Josh Barro:
It's an emergent podcast.
Ken White:
Josh, I'm respecting your wish that nothing ever be called an emergency podcast. But if there were such a thing, Josh, this would be it.
Josh Barro:
Yeah, I mean, literally on Tuesday afternoon as we were discussing whether or not we were going to have an episode to tape today, because first, the way we learned of this is that Trump announced on Truth Social that he would be indicted. But he also announced that he was going to be indicted in New York on a Tuesday, and he was indicted about nine days after he claimed he would be indicted. So you never know what that means. And then it became clear the grand jury was going to issue an indictment, but we didn't know whether we would actually get the text of the indictment this evening. And so I was literally standing about to leave my house to return to New York City to catch a ferry boat. And as I was going to walk out of my house with my backpack on, we got the text of the indictment. So I turned around, sent the indictment to my printer, and here we are recording this episode at 8:09 PM on Tuesday evening. So maybe it's a podcast under emergency conditions. Can we call it that?
Ken White:
It is. And under very breaking conditions. This is a long-ass indictment of former President Donald Trump. It's 45 pages, and there are no short descriptions of what led up to January 6. And this is an extraordinarily detailed one.
Josh Barro:
I think the main big picture thing to say about this indictment is that the indictment is for trying to steal the election. The wrongdoing described in here is the core of the wrongdoing of the events that took place between election night on January 6 of 2021. Closely related to the matters that the former president was impeached for. We had talked about the possibility there'd be indictment for things like campaign finance violations, and that's not in here. There are four counts here, but all of this is basically the former president, the then current president, and various people around him conspired in an effort to falsify the results of an election, to overturn an election result, and to steal the office of the presidency for himself.
Ken White:
And we were talking about this anticipated indictment for some time now. We've been focused very much on little bits of it. And imagining an indictment that might go after small specific acts as separate crimes, but that's not what Jack Smith, the special counsel did here. He absolutely went all in. He swung for the fences. He looked at the whole course of conduct from the night of the election through January 6 as a piece, as a series of acts that were a conspiracy to violate various laws. He didn't break it down into one crime for this call, and a different crime for that email, or anything like that. This is telling the entire story.
Josh Barro:
Is that a sound legal approach? I mean, I think people think of the idea that there are political questions with political remedies and legal questions with legal remedies. Is Jack Smith right, that this whole thing adds up not just to a political offense, not just to something that you might impeach a president over. Is he right to say this thing is just a criminal offense?
Ken White:
Well, it's my job to evade clear answers, Josh, and let me do so just a little bit. It's not a bank robbery. It's not like we have precedent on how you go about describing this thing in an indictment. This is historically unprecedented. That said, I think the answer is yes. I think that this is the most effective way in terms of presenting it to a jury and telling the story. I think it's the most effective way in presenting it to the public of the United States of America to sell them that these are crimes and this is a series of criminal conspiracies. And I think that a lot of work has gone into it to make it as legally plausible as it can possibly be. Now, there's no certainties here. We don't know the way courts are going to handle it all the way up to the Supreme Court, but he has done everything he can very carefully to focus on things that in any other context would be crimes, and to make the most effective case possible for why it should be treated like a crime here.
Josh Barro:
Because there's a general, I think, preference in the courts to give a lot of deference to elected officials about how they discharge their duties in their offices. And it's not directly related to this, but there's a line of recent Supreme Court cases that had to do with public corruption, where you had claims that elected officials were misusing their offices in corrupt ways. And these convictions keep getting overturned at the Supreme Court basically saying that this is just politics. When Bob McDonnell made these calls on behalf of this guy who he had these financial dealings with, there was no explicit quid pro quo and that we're not going to second guess the way that the governor executed his office. And made these decisions about what to do with the powers of his office. Does this not get caught up in that, perhaps at an appellate level? Where you could have a court basically saying, well, the jury found whatever it found about the facts of what Donald Trump did, but that these were really political acts, and that they were really beyond the reach of prosecutors.
Ken White:
Josh, I think that's a risk in the courts of appeal and the Supreme Court, but I think Jack Smith has done what can be done to avoid that risk. Most of the cases that you are talking about are using the mail and wire fraud statutes under something called theft of honest services fraud theory. So it's taking statutes that are traditionally used to swindle people out of money, and use it to try to describe political wrongdoing. This takes a very different approach. The charges here, and I think we have to dive into it a little bit to answer that question, are a conspiracy to defraud the United States, which is 18 U.S.C. 371. A conspiracy to obstruct an official proceeding, that's 18 U.S.C. 1512. Obstruction of an official proceeding, and we're talking about the tabulation and certification of votes here, again, 1512. And a conspiracy against rights 18 U.S.C. 241.
Basically, a theory that these people were conspiring to dilute the votes of every other American by trying to eliminate them through fraud. So these are very different theories than the mail and wire fraud theories that had been stretched and broadened to try to encompass political corruption. This is saying basically, this was a legitimate proceeding where the United States Senate tabulates and certifies votes. And you went out and got into this elaborate conspiracy with different means to try to defraud and obstruct that proceeding.
Josh Barro:
And to take that last charge, the one about conspiracy against rights, some of the examples that you've pulled before we tape this episode that you have in our notes here have to do essentially with stuffing ballot boxes. And that this statute has been used against officials who cheated in elections by placing fraudulent votes in ballot boxes, by casting voters' ballots for them without their knowledge, by casting votes on behalf of dead people, et cetera. And so is the theory here that basically that this is just a more elaborate way of trying to stuff the ballot box? That rather than putting a bunch of literal ballots in a box in Chicago, what you are doing is you are bringing false elector slates to the US Congress in order to produce a false election result. And it is though you stuffed a ballot box.
Ken White:
Absolutely. And I'll admit, I was skeptical of this theory, the conspiracy against rights before I did some research on it. I always saw Section 241 as sort of an idea of Klansmen out in the road, beating up people, going to the ballot box, that type of conspiracy against voting rights. But there is a lot of precedent about this. There's a string of cases for generations talking about officials fraudulently altering the course of a vote, whether it's stuffing ballot boxes or as you said, getting people to vote a particular way, bribing people, whatever it is. Misusing their official power to fix the results of an election. And the concept behind all of this is that doing those things interferes with the rights to vote of every other voter by creating this false result. So it is based on the law. It is a perfectly plausible theory, even if it is a little unfamiliar to most people. And the records of the United States Department of Justice viewing this as a legitimate approach are very clear and stretch back decades. This is not a new theory or a new thing by Department of Justice.
Josh Barro:
So let's talk some about the specific factual allegations against the former president in here and what it is that they say that he and various co-conspirators did in order to end up committing these offenses. Conspiracy to defraud the US, the obstruction of the official proceeding, and the conspiracy against rights. And this is going to be a fact set that I think listeners are more broadly familiar with already than in some of the other indictments. Again, this is the big stuff in the news. But basically, the idea is that they're only challenging some of the conduct here. Jack Smith says it's perfectly legal if you want to file all the lawsuits you want, alleging that the vote count in various states was wrong. And it's perfectly legal to request recounts and to obtain them in the states where the state law allows you to have the recount. The illegal acts start when they start trying to get people to hold themselves out as the electors in states where a different elector slate had been certified.
Ken White:
Right. And it's important to note, this is a speaking indictment. This is an evidentiary indictment, where it's not just bare bones. This person violated this law on this date, which you often see in federal cases. This is a 45 pages of explanation of what they did and why it's a crime. And something he does very early on, as you point out, is he sort of visibly assumes the burden for purposes of the law. And I think to some extent, for history, of saying absolutely you can do all sorts of things and he did them and they failed. Here's what you can't do. And the sort of thing you can't do here is to try to falsify the information that gets to the Senate, try to induce others to create false information and send it to the Senate, and try to influence officials to do things that you know and they know are illegal.
And that's what it's talking about here. So big picture, the things that they're accused of doing are engaging in this conspiracy to influence officials from Mike Pence, to the Department of Justice, to other people. To claim that there's fraud when they know there's not, to create these false panels of electors to pose as genuine electors, and present themselves or their votes to the Senate for those to be considered instead of the genuine votes. And to create all this buzz about election fraud, to make all these statements they know are false in order to get states to get in on the game. So they're really careful, you'll see here, Josh, to separate out factually false statements. It reminds me a little bit of what we talk about, about how opinions, and rhetoric, and hyperbole can't be defamation, right? You have to have a provably false statement of fact.
So the prosecutors here go out of their way to select out factual allegations that are falsifiable, that can be proven true or false. Like “10,000 dead people voted,” or “30,000 people who aren't citizens voted,” or “these voting machines changed votes from Trump to Biden.” These aren't just opinions, they're not calling out people saying things like “remote voting and mail-in voting is inherently unreliable and we think they produced false results.” It's legitimate to think they did. These are talking about specific false statements of fact, things that they are told are not true, but they keep saying are true to try to disrupt the election counting.
Josh Barro:
You said a few times in there about things that they know to be false, and they allege, Jack Smith and his team allege several times in this indictment that Donald Trump said things that he knew were false. Will they have to prove in court what Donald Trump knew or didn't know? They'll have to prove that he knew he was lying about the election?
Ken White:
Yes. I think to succeed on this theory, to show that he had fraudulent intent for the first count on defrauding the United States, and to show that he had corrupt intent from the obstruction charges, I think they do have to show that. And yes, it's a heavy burden, which has been, I think, one of the themes of our show and our prior show for the last five years. But this kind of shows how they can do it. So sooner or later, when you lay it out like this, how person, after person, after person told him, no, that's not right, that didn't happen. There's no evidence of that. The evidence is to the contrary. A jury's going to understand on some level that he knew what he was saying was not right, and he didn't care-
Ken White:
... on some level that he knew what he was saying was not right, and he didn't care. The other thing he does here is he picks up key quotes from Trump and from the co-conspirators. And this absolutely reminded me of The Wire saying, "Are you taking notes on a fucking criminal conspiracy?" They took notes on a criminal conspiracy, they did what you're not supposed to do. And they put things in writing and they said things to witnesses. And so you have Trump saying things like... Someone will tell him, "That's not right. I can send you the link showing it's not right." Him saying, "I don't care. I don't need the link." You have people saying to people in the states while they're trying to persuade them to engage in this, "All we need is for people to come up with these votes. It doesn't matter if they're fake, we just need them to use them to get someone to vote to delay the vote counting."
Josh Barro:
It's worth noting that some of the other people who have been involved in these efforts have already been indicted. I mean, particularly in Michigan, we've seen fake electors indicted and now a couple of officials who were involved in trying to certify that fake elector slate. So, the theory here that this effort to get the Senate to do the wrong thing here was a crime. Jack Smith is not the only prosecutor pursuing that theory.
Ken White:
He's not, and what this indictment calls out is that these conspirators kind of screwed over those fake electors because it says that the co-conspirators told them, "We're only going to submit you as a panel of fake electors to the extent the court agrees and throws this out," and then broke that and did it anyway.
Josh Barro:
At least they made that representation to some of the fake electors.
Ken White:
Right, but there's no honor among thieves.
Josh Barro:
Very often when we talk about knowledge of falsity, we're talking about defamation cases involving public figures. And you have the actual malice standard there, where to be liable for defamation, you have to know what you're saying is false or you have to be speaking with reckless disregard for the truth. Is there a similar standard here? Is it sufficient to show that Donald Trump spoke with reckless disregard for the truth? Or do they have to actually show that he knew it was false?
Ken White:
Well, it's not exactly the same because the questions are different. The questions are whether the prosecution can prove beyond a reasonable doubt that he had corrupt intent when he was doing these things, okay? That's the standard for the obstruction. So, to get there, the jury has to decide that he had corrupt wrongful intent. And probably, just thinking that the things he was saying were probably false or not really believing them or not caring could probably suffice for that. Same with the intent to defraud. If you're telling someone that, "This rock I'm selling you is absolutely gold," then it's probably fraud, whether you absolutely know it's not, or if you've conducted no inquiry whatsoever and have no reason to believe it's gold. Either way, it's probably fraud, right? So, the big lift here is not the classic actual malice. The big lift here is proving beyond a reasonable doubt fraudulent intent or corrupt intent.
Josh Barro:
So, isn't a likely defense from Trump to be that he sincerely believed all of these claims that he was making, and that he really thinks the election's been stolen from him? And I know they point to all these people who told Trump that his claims were absolutely wrong, but one of the key ongoing facts about Donald Trump as a person is that he believes everyone is arrayed against him in a conspiracy. And very often, that conspiracy can even involve the people that he hired to work for him, the people he hired to advise him, the people he said were the absolute best people that he was bringing in. He has a track record over and over again of denouncing those people and of saying that they are in fact, trying to destroy him.
And so, that your acting attorney general told you that this was wrong, I don't think it's implausible for Trump to say that, "I didn't believe that guy. I thought that guy was absolutely wrong and was absolutely trying to fight against me." And that the reason that he keeps asking people until someone says, "Yes," is that the person that he believes is the person who says, "Yes." The person he believes in this case is Sidney Powell. I mean, since this is a question about his internal state of mind, is that not a valid defense to say... He can say, "My intent was not corrupt because I sincerely believed that I won this election and that these efforts were to cause the correct outcomes to be reported from each of these states," rather than incorrect outcomes that would otherwise have been reported?
Ken White:
Yes. If he can convince a jury that there's reasonable doubt about that, then that could be a valid defense. So, this indictment anticipates that and lays out the evidence that a jury could look at to decide that he doesn't sincerely believe that or he doesn't actually care. So, when I was a prosecutor, talking about intent and how you prove it, I would tell people that, "You prove it the same way you decide whether anyone else is lying. You prove it the way you decide whether you're a teenager is lying. You look at is it common sense and are they doing other things that suggest they don't really believe what they're saying?" It's the same thing here.
So, Donald Trump is always very helpful to the prosecution on this, and this is no exception. And you have this section in here, and this was called out to be by a friend of the show and legal commenter, Mitch Epner, said there's a line in here where Trump says to Mike Pence when he refuses to do this, "The problem is you're too honest." So, that's not something you say if you believe that what you're saying is true. Similarly, Trump does things like he excludes naysayers from meetings. He orchestrates things so that only yes men, yes women will be in the room. He lies to his own team about what's going on.
He says things that contradict what he's been told even by the people supporting his view of events, he exaggerates or lies about what he's just been told by somebody else. All these things are things that a jury could look at and believe. Yeah, I think there's no doubt he knew that this was bogus, and it's not so much that he believes it's true, it's that he refuses to accept the result. He refuses to accept a world where this isn't true.
A more interesting question, I think, and a more complicated one is raised by an article in Rolling Stone today about reports that Trump is going to try to throw his lawyers under the bus. He's going to go for those few yes men and women, the Sidney Powells, the Rudy Giulianis, the John Eastmans, and say, "Well, my lawyers told me that this was all right and this was all legal," and that's a defense. So, advice of counsel can be a defense to crimes where there's a specific intent requirement. So, to the obstruction crimes, which require corrupt intent as a form of specific intent, it could be a defense if your lawyers told you this was fine. But you have to show that you told the lawyers all the relevant information and you have to disclose everything they said, and you have to show you followed their advice, and did so reasonably.
And so, when you've got Rudy in here, basically making admissions, like, "Well, I don't know all the facts on the ground. We have to let the court sort it out," things like that, that's going to undermine this idea that you reasonably relied on your attorney when it appears that they're all talking about, they all know that this is nonsense. It is something that is discussed among them. It is politics, but it's politics in the sense of it is a lie that's shared, they have agreed to tell together.
Josh Barro:
So, to your point about that, Ken, one instance they talk about here is in Georgia, where Trump had signed a document making certain allegations about what had occurred in Georgia. And co-conspirator two, which is John Eastman, who had been advising Trump in that lawsuit, acknowledged in an email that he and Trump had, since signing a previous verification, been made aware that some of the allegations and evidence in there was not accurate, and that signing a new affirmation with that knowledge would not be accurate, but that then Trump and Eastman caused the defendant's signed verification to be filed nonetheless. So, I guess that would be an example of them not relying on the advice of counsel, although I don't know that they've shown that Eastman actually told Trump that, even though he told other people in Trump's orbit.
Ken White:
Right. But it definitely helps to demonstrate that the co-conspirators know that it's not true, and you can draw inferences about what Trump knew or didn't know. And he says that he and Trump had been made aware that it's not true. So, that's an admission. And because it's happening in the course of the conspiracy, even though it's a statement by Eastman, it's admissible against Trump. That's a hearsay exception that a statement by a co-conspirator in the course and scope of the conspiracy.
Let me just say that Eastman I think comes out of this looking like one of the biggest villains of the whole thing. John Eastman comes out looking like a significant villain in American history in this indictment. He looks like someone who drives and promotes fraud on the government. He comes out as someone who says, when someone says, "Well, if we do this, there could be rioting in the streets." And he says, "Well, sometimes you need violence. Sometimes violence has to happen to preserve the republic," or words to that effect. All of these co-conspirators come out looking really historically awful.
Josh Barro:
Yeah. So, there's six numbered co-conspirators in this indictment, and we know at least five of their identities. Co-conspirator one is Rudy Giuliani. Co-conspirator two is John Eastman. Co-conspirator three is Sidney Powell. Co-conspirator four is Jeffrey Clark, who was a deputy attorney general or an assistant attorney general… rather: he was the acting head of the Civil Division at the Department of Justice.
Ken White:
Right. Clark is the one who decided he wanted to take over as acting attorney general and is looking for Trump to put him there, to the rather pronounced lawyer disdain of the other people from the attorney general's office.
Josh Barro:
Right. And actually, for a time convinced Trump to do that, although Trump later changed his mind under pressure in the opposite direction. Co-conspirator five is a lawyer named Kenneth Chesebro. And then we're not sure who co-conspirator six is. It's some political consultant to the former president. And people are floating various possible names on Twitter. Maybe by the time people are hearing this episode, it'll have been figured out, but that's the one whose identity is less clear. So, they're not identified in here by name. They're called co-conspirator. They haven't been indicted. But are these people necessarily going to remain unindicted or is it likely that we're going to see indictments of these conspirators as well?
Ken White:
Josh, I don't know for sure. I'll say this, first of all, it is totally normal standard practice not to name them in the indictment. That's Department of Justice policy. If you're not charging them, you don't name them. You use these, co-conspirator one, even if it's obvious to people who know the facts, who that is. But even though often co-conspirators who are just referred to like this are not charged, sometimes in an indictment like this, there is so much detail given about what co-conspirators did, and that detail is so incendiary that you start to pick up a strong sense that they are thinking about indicting these people. And I think this is such a case. This stuff is so extreme, so outrageous, and the detail they have on it, the quotes from people, the quotes from the co-conspirators, talking to people and things said to them, are so extensive and detailed. I think the signals a strong likelihood they're going to be indicted.
They may be indicted separately, so they may decide... There's no reason that you have to do one indictment and try everybody at the same time. They can do a series of separate indictments and try them like that, and they may decide that that's the better way to do it. But this certainly looks like it's ready to go after these other people for participation in the same crimes.
Josh Barro:
So, why would they do it in this order? I mean, even if you're going to do a separate indictment, why would it drop at a different time than the indictment of Donald Trump?
Ken White:
Well, any case against Trump is going to be enough of a circus already that you don't need the clown car full of Rudy Giuliani, John Eastman, God help us, Sidney Powell, and Jeffrey Clark to show up. That's going to dramatically complicate and make it even more circusy. A five-ring circus instead of a one-ring circus. So, it may simply be, practically speaking, they think it'll be easier and more straightforward to go after Trump on his own. Similarly, it'll be easier to go after these people on their own or in a separate indictment without Trump, the 800-pound gorilla, making the case so difficult.Making the case so difficult to do. So that would be my assumption.
Josh Barro:
When we think about the Florida documents case where Trump has been indicted alongside two low level employees who work for him, and those are, I don't know that prosecutors were necessarily trying to flip those specific people, but those are the sort of people who you might expect to cooperate with an investigation, maybe could have avoided indictment if they had cooperated with the investigation. They're minor figures. Here, would any of these people be useful as a cooperating witness? I mean, you wouldn't want Rudy Giuliani as a cooperating witness, right? He is totally unreliable. So the only thing to do with the people who are smaller fish than the president presumably, is to indict them.
Ken White:
With much smaller fish, you indict them. If they haven't cooperated, you hope that they'll finally see you mean business and they'll cooperate, they'll flip. And that may be the case with the two co-defendants in the Florida case. Here, I think you're right in particular with Rudy and Sidney Powell, they would be horrific witnesses because they are so sort of floridly crazy and say such nutty things. Sometimes when you've got truly awful people like that, other people on a murder gang or whatever it is, you still do flip them, but the use you have for them is circumscribed by their modest ability to make sense and their reputations. So you would only kind of use a Rudy Giuliani or Sidney Powell on top of all the other stuff you have, and you'd corroborate the hell out of them with their own communications. You would almost use them mostly as a vehicle to get in the evidence you already have. Here we're going to go through your email to the president, now tell me about the communication you had with the president afterwards. So prosecutors put on awful, awful cooperating witnesses all the time, and murderers and rapists and every sort of terrible person. And they're good at selling it to a jury, but they may have just decided that none of these people are ever going to flip.
Josh Barro:
And so when we talk about that the indictment lays out a pattern of activity from after the election that was an effort to steal the election. It goes through the efforts to pressure election officials to report different vote counts, telling the Secretary of State in Georgia, 'can you find approximately 12,000 votes so that I win the state of Georgia', that sort of thing. The slates of fake electors, trying to get them into state capitals and get their certifications, their fraudulent certifications, submitted to the US Congress so that those could potentially be counted on January 6th. It also includes the effort to pressure then Vice President Mike Pence to assert some sort of power to interfere with the vote count that would happen in Congress. And then it goes into the events leading up to the riot on January 6th, and it talks about President Trump's efforts to whip up that crowd, sending them down to the capitol, telling them lies about the election and doing things that induce a riot with the purpose of trying to influence and delay the proceedings that occurred in the US Congress.
And so is it surprising in here? We talked about that you definitely didn't expect an indictment for inciting that crowd, and that's not what the former president has been indicted for here, but they are still contending that big political speech that he gave that I think is one of the things that looks like such classically political activity, regardless of the horrible purpose for which he gave the speech that it seemed very unlikely he'd be indicted for that. They're essentially saying that that speech was part of a crime because it was an effort to delay the vote count.
Ken White:
Yeah. But they do it as only a small part. So one of the smart things about the structure here is they present this whole month-long chain of events as supporting fraud on the United States or conspiracy to obstruct or obstruction or interfering with rights. And that's just one tiny moment in it. And the good thing about that is they can say to any jury, 'look, even if you don't think that speech was part of it, look at all the other things he did'. So yes, we didn't expect there to be incitement, there's not. I don't really read this as emphasizing just the speech that much, I think that's just telling part of the story. What I think this cleverly does much more is it presents Trump and his cronies as using the existence of the violence to try to further pressure people in Congress to do what he wants them to do.
So it's not so much that he sent the crowd there to do violence, it's that once he sees they're doing violence, he is egging them on to continue and then using that to try to pressure members of Congress into doing what he wants to do. That's the obstruction that's happening there. That's very clever. That takes away the First Amendment issues and makes it more into something where he's using those in communication to pressure people to vote for things that he knows are false, to accept premises that he knows are false.
Josh Barro:
But I'm sorry, does it show him doing precisely that? I mean, it shows him failing to call the crowd off for some time, although he eventually did succumb to pressure to make a statement encouraging them to leave the capitol grounds. But the statements, the tweets, they're setting are saying things like, "please support our Capitol police and law enforcement. They're truly on the side of our country, stay peaceful". That wasn't a request to disperse, but it's also not egging the crowd on as such. It describes a call that he has with the then minority leader of the US House, which was Kevin McCarthy, in which he laments that the crowd at the Capitol seems to care more about the election result and is more upset about it than McCarthy himself is. I don't see what in here is an effort to use the riot itself, as the riot is happening, what's the part where he or the conspirators uses that for the specific purpose of trying to further delay the election result?
Ken White:
Well, it talks about how he's using these tweets as there is violence on the building. And this is a very different, very deliberate juxtaposition here. It says at 2:24, he issues a tweet saying, "Mike Pence doesn't have the courage to do what should have been done to protect our country and our constitution", giving the states a chance to certify a set of facts. And then it says one minute later, "the United States Secret Service was forced to evacuate the vice president". And then later it says he repeatedly refuses to approve a message telling the rioters to leave and he downplays the violence and the call with the minority leader, he releases... So he says, this is what happens when someone tries to steal the election and he tries to, there's another section here where he and the co-conspirators start sending voicemails and making calls, trying to convince people to do the vote the way they want them to by calling senators-
Josh Barro:
Right. This is after the riot has ended. It's describing calls that are made at 6:00 PM, 7:00 PM on the day of the riot. I'm just wondering as a legal matter how this strengthens their case. I mean, there's a long campaign that starts before the riot and continues for some number of hours after the riot, until the Vice President finally certifies the result around three in the morning on January, 7. There's an effort to bring pressure on the vice President, on other elected officials to falsify the result of this election. I'm just wondering what the stuff about the riot itself adds to the legal claim here, because you have that extra step of attenuation there where this is not the President directly asking someone to do something. This is the president making statements that insinuated perhaps that there should be violence. And that certainly were taken by some of his supporters as a cue to march on the Capitol.
But these are acts that other people took, they didn't directly instruct them to take. It seems to me like the theory is just stronger when you talk directly about Donald Trump asking Mike Pence to do something specific. Donald Trump making even public statements that the vice president has powers and has agreed to do certain things that he hasn't actually agreed to do. It just seems like the nexus between Trump's actions or his co-conspirators actions, and the pressure campaign is actually stronger with regard to the nonviolent aspects of this than it is with regard to the riot.
Ken White:
So I do think there's plenty of very strong stuff about non-violence, but I think this takes advantage of the emotive impact of the violence in a way that you otherwise couldn't. So one of the downsides of not using incitement is you sort of lose the shock value of the violence. This is a way to still get that shock value. Yeah, it is to some extent an appeal to emotion and to outrage. But this says basically here, is this violent attack on the capitol and he, his co-conspirators are still trying to defraud the United States, still trying to obstruct justice. So it's a juxtaposition, it's a storytelling device to some extent. It's a way to convey to the jury how despicable the behavior is.
Josh Barro:
Let's talk some about how a case this might actually proceed. This case has been filed in Washington, D.C and I assume that's the obviously correct venue for this-
Ken White:
It is.
Josh Barro:
... The president was in the White House. Okay. And so we've talked some about the politically mixed jury pool that the president is likely to face down in Florida. He's likely to face a heavily democratic jury pool in the District of Columbia.
Ken White:
He is, but that's not the worst part.
Josh Barro:
What's the worst part?
Ken White:
Well if he had good luck in the documents case in Florida drawing judge Aileen Cannon, he did not have good luck in Washington, D.C. I'm talking about United States District Court Judge Tanya Chutkan. So this is to the extent there are any good draws in the District of Columbia. She is not one of them for him. She is not someone who is inclined to see January 6th as a non-serious minor expression of political views.
Josh Barro:
And so I know when Aileen Cannon originally got the case in Florida, we had some confusion about whether the assignment to her was a true and permanent assignment, whether it might end up with some other judge. Do we know why this initial assignment to Judge Chutkan, can we assume here that means that she's going to have the case?
Ken White:
I think tentatively yes. I haven't seen anything to indicate it's anything other than a regular assignment. There could be some weird procedural thing that happens, but it's not going to be because Trump or the government complains.
Josh Barro:
And so what do you think might be timing for a case like this? This one doesn't have all of the issues about classification of documents that you have in Florida. Is it possible that this case could actually get to trial before the documents case?
Ken White:
I don't think so. I think this one is more complicated than the documents case. It lacks the classification issues, but it's got a much bigger array of witnesses. This is a cast of thousands. You've got actions by six named co-conspirators and a bunch of non-named co-conspirators. You've got actions in a dozen states. You've got a number of different theories and different schemes about what was going on. You've got a much broader sweep in terms of what was happening. It takes a lot more explanation. This is like a three month trial.
Josh Barro:
Really?
Ken White:
Yeah. This is a very long trial, a very complicated one. Not so much complex legally, but complex just in terms of the number of witnesses and events and things that are going on. So yeah, I think it's hard to get this one to trial before the election.
Josh Barro:
And also, in addition to a lot of witnesses, you have some very high profile people who will clearly be witnesses here. I assume Mike Pence is a witness in this case.
Ken White:
Right.
Josh Barro:
Kevin McCarthy is a witness in this case. There's a lot of people that are very prominently involved in our politics who presumably would be called to testify here. Some of them have already appeared before the grand jury.
Ken White:
Yes. And that's going to complicate things as well. So maybe Jack Smith will find a way to do it lean and mean in terms of the government's presentation. But I'm sure that Trump will be able to find every election denying nutcase out there to come out of the woodwork, to talk about downloads from China and mysterious satellite signals, changing votes and stuff like that to try to present why he might reasonably have believed this stuff was true and why he wasn't committing fraud. I also think that this is a case where you can expect Trump to try to go for the type of argument and the type of appellate review that you normally wouldn't get in a criminal case. So making a motion to dismiss and then appealing it immediately is not something you would normally do in a criminal case. But I expect to see him make the big arguments we highlighted at the beginning of the show. This is all attacking core political activity by a president, and then try to get extraordinary relief from the Court of Appeals on the theory that it's an extraordinary case. It's a historic case. I don't really think that the D.C. Circuit Court of Appeals can be expected to give him a very favorable hearing on that. Is the Supreme Court? I don't know. Yeah, I think that he's got two votes to do pretty much anything he wants, but I don't think he has enough to derail this pretrial, at least.
Josh Barro:
Because I mean, even before the question of whether he would be right on the merits about that, about these being core political questions, couldn't those appellate courts just decide that this is a matter where appellate relief will have to come after the trial if it's going to come?
Ken White:
Absolutely. That it's not suitable for extraordinary relief and that it's not suitable without a more developed record.
Josh Barro:
Yeah.
Ken White:
That would be the both the correct and coincidentally the politically prudent way to get out of it.
Josh Barro:
And so you note the complicated nature of this case. How long, I mean, I assume here that we have a judge who we don't need... We don't suspect that Judge Chutkan would desire to delay this case for political reasons or for the protection of the former president. But there are all sorts of other reasons why cases like this can take a long time to come to trial. Do you have a thought on how long it could likely be before this goes to trial if you have a judge who does want it to go at an appropriate time?
Ken White:
I think it would be difficult to do it sooner than a year. I could see her cracking the whip. Sometimes you have judges do that, but the thing is she and the government don't want to create appellate issues for Trump. And a super complicated case where the argument is, I'm being politically singled out, if you make it go to trial much faster than the court knows that any other person would have to go to trial, then that's going to look bad. That's going to add to that argument.
Josh Barro:
And what will they spend that year doing?
Ken White:
Well, there's going to be thousands and thousands and thousands of pages of discovery. There's going to be recorded interviews. There's going to be grand jury transcripts. There's going to be all this stuff that the defense has to go through and think about. There's going to be motion practice on all sorts of issues. So that type of thing.
Josh Barro:
And so then the former president is expected in court before magistrate on Thursday of this week. Is anything interesting going to happen there?
Ken White:
Not legally interesting, I don't believe. I'm sure there will be some mild posturing from Trump's lawyers. But in terms of theater and the circus, I'm sure there will be interesting things.
Josh Barro:
And then when will we start to get indications about the way this case is developing and the way Judge Chutkan intends to handle it?
Ken White:
Well, I assume when Judge Chutkan sets a hearing to talk to their lawyers and to talk about scheduling and things like that, we'll start to get a read of how she's going to handle it. We saw recently in a recent episode how Judge Cannon took a while and then brought in the attorneys and did a hearing and then issued a careful order detailing when the trial would happen and all the other dates. I think we'll have something like that.
Ken White:
So Josh, we've talked before about how we get outrage fatigue in these cases, and how after talking about all these things for a long time, it's easier to get hardened to it and no longer be outraged. But this stuff, if you read this, if these things are true, if they did these things, it truly is outrageous in an unprecedented historical way.
I mean, I was furious reading this all the way through. We've heard the bits and pieces, many of them, not all of them, but I don't think we've ever seen it put together like this in a document. And it's both impressive in terms of the marshaling of the facts to tell a story, but it's also horrifying and absolutely infuriating as an American, I think.
Josh Barro:
Well, I agree that it's outrageous. I didn't feel like I learned that much about the facts by reading this indictment. I mean, there were a couple of new data points in here and you have Jeffrey Clark saying in response to being warned that there'll be riots in the streets if you try to move this through the Senate by having Mike Pence steal the election for Donald Trump. And he says, "Well, that's why we have an Insurrection Act."
I think that's new. There's a couple other things like that that are new. But it seems to me like mostly this is the outrageous story that we have known for some time. A lot of it is what was covered by the January 6th Committee. I mean, he tried to steal the election. And he used a number of these mechanisms to try to steal the election. It's outrageous. And I think that you're correct about the importance of continuing to understand that it's outrageous. But I thought this was a concise summary, but I didn't think there was a lot of big new information about those facts in here.
Ken White:
I felt that the whole is more than the sum of the parts. So the marshaling of the information. And this is what a good trial lawyer does, is marshal facts in a way that's persuasive. Put them together after you've heard them. So I think that it was terrifically effective in telling the story in a way that suggests that this is no small thing for Trump. This is a very grave risk. And I think that my hope is it actually has a political impact just based on how bad it is. But that may be naive.
Josh Barro:
Before we go, I realize it's way premature to talk about sentencing, but how serious are the offenses here in terms of if Trump were to be convicted of these charges that are being brought against him, how would the judge even think about sentencing for that?
Ken White:
Josh, well, as you know, we always talk about what the United States guideline recommended sentence is first. And here for something that doesn't involve violence by Trump himself, the guidelines are kind of mediocre. I mean by my take, they suggest a sentence of a few years possibly. But this is so historic that it would not surprise me at all if this were the type of thing where the judge would increase that somewhat, go above the guideline recommendation if it's just two years or something like that, because the guidelines are quite low for these offenses where they don't cause monetary damage or violence.
I could see the judge going higher. Of course, that seems very strange given the extremity of these acts. But we have to remember that a two or three year sentence for Donald Trump does things that a two or three sentence for the leg breaker for the local mob doesn't. So I think it's going to be a sentence that would probably be disappointing to many people if we get to that stage. But there's going to be an opportunity for the judge to make a statement. And I think it sounds like this judge is the sort who might do that.
Josh Barro:
Well, I mean, this makes me think of a couple of things. One is when we did that special episode where we talked about how to better consume legal news, and we spent a lot of time talking about the sentencing guidelines, and we went through a possible sentence in the documents case and found that the guidelines would call for quite a long sentence — longer than the one that you're suggesting here, probably more than 10 years. And we talked through that, and then we basically decided that the guidelines didn't tell you very much about what a judge was likely to do there. And that in fact, the sentence would be significantly shorter than that because of the extremely unusual nature of this case.
And it's sort of the same thing here. That these charges, conspiracy to obstruct an official proceeding and obstruction of an official proceeding, this is a charge that has been brought against a lot of the Capitol rioters. And I think the idea that this seems like more serious conduct than the conduct that was being charged there, especially because those are Capitol rioters who are not getting charged with things like assaulting police officers. It was sort of the basic charge of participating in the riot to try to interrupt the vote count.
So you would think that as the President of the United States, his conduct would look more gravely serious, call for a longer sentence. Similarly, conspiracy against rights. If you're an alderman in Chicago stuffing ballots to affect the outcome of a city clerk election, that is of less importance than if you are trying to steal the presidency. So it seems like sort of as in the documents case, that the specific nature of the statutes doesn't fully capture the severity of the behavior. And so presumably, that's why this would be the sort of place where you might see that upward departure in the sentence.
Ken White:
Exactly. And it's something when the guidelines were mandatory, the concept was departure, and the concept was that you can go outside the guidelines if it's clear that they didn't contemplate a situation like this. And I think it's pretty clear that they don't. And that's a reason why now in this regime where the guidelines are not mandatory, that you could really see a judge deciding, "Yeah, this doesn't cut it, I'm going higher." Even if that higher is only something like four or five years instead of one, two or three years. We're drunk on big numbers when it comes to our criminal justice system. We're not happy unless it's life plus cancer. But to a 70-something guy in bad health who's Donald Trump-
Josh Barro:
He'll probably be over 80 by the time this trial starts.
Ken White:
Oh, yeah, exactly. The five years is a big thing. He could very plausibly die in jail and honestly, probably should.
Josh Barro:
Okay. Well, at that point, why don't we leave it there, Ken. Thank you very much for speaking with me.
Ken White:
Thank you, Josh.
Josh Barro:
Serious Trouble is created and produced by Very Serious Media. That's me and Sara Fay. Jennifer Swiatek mixed this episode. Our theme music is by Joshua Moshier. Thanks for listening. We'll be back with more soon.
Ken White:
See you next time.
