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I can't think of a more important case that the court has to decide right now. And the consequences of its ruling for the country are tremendous. Hello and welcome to the FiveThirtyEight Politics podcast. I'm Galen Druk.
As we head into the second week of former President Trump's Manhattan criminal trial, we're going to take stock of Trump's legal liability and what Americans think about it. We're going to focus in on two cases in particular. Of course, first, the alleged business records falsification case in Manhattan. And second, the case brought by Jack Smith surrounding January 6th and Trump's alleged efforts to overturn the 2020 election.
The big question there is whether the case will go to trial before the election, and that hinges in part on how the Supreme Court handles Trump's claims of presidential immunity, which the court heard last Thursday. And here with me to help break it all down is Jessica Roth, professor at the Cardozo School of Law and former federal prosecutor. Welcome back to the podcast, Jessica. It's a pleasure to be here.
So the last time that you joined me on the podcast, about a week and a half ago, you said that the jury in the Manhattan trial would have to assess three main questions regarding the 34 counts of falsifying business records. They were, one, whether there was falsification of the business records, two, whether Trump was part of the falsification and did so with the intent to deceive, and then third, whether
whether that crime was in violation of the federal campaign finance laws, i.e., whether the payments were made to further the Trump campaign in 2016 because they would have exceeded the permissible limits that an individual can contribute to a campaign. Where are we in the process of either laying out or refuting the evidence on those questions?
We are in very early days in terms of the jury's ability to decide those questions. Thus far, we've heard testimony from David Pecker, who had been the head of AMI, the parent company that owned the National Enquirer, who was part of a longstanding scheme with Trump to quash stories that were bad for Trump and publish stories that were good for Trump.
Pecker talked about a scheme that he entered into with Donald Trump and Michael Cohen to pay off people who had information close in time to the 2016 presidential election that would have been bad for Trump's campaign. And that's where we get to the heart of this case, which is the falsification of records to conceal payments that were made allegedly to further Trump's campaign.
Pecker provided critical background and context for the story that the district attorney is trying to present to the jury. And he was key in terms of setting up Trump's involvement in this overall scheme. He was key in putting Michael Cohen sort of at the center of the scheme and as an intermediary for Trump, which will be really important to corroborate what Cohen later says about essentially carrying out Trump's instructions.
And David Pecker sounds like he came across as quite credible and detailed and like he had no axe to grind with Trump. And so what he describes is purchasing former Playboy model Karen McDougal's story about a months-long affair with Trump for $150,000. And as you mentioned, the idea is that that mirrors what would later happen with regards to Stormy Daniels. Now, the defense...
They're cross-examining David Pecker. They're arguing that this is a common practice amongst celebrities. So does the fact that Donald Trump was a celebrity long before he ran for president with a reputation to worry about for decades complicate the prosecution's case?
It might confuse some jurors because some jurors might be wondering, well, why are these payments that the National Enquirer made to Karen McDougal allegedly violations of law, whereas those other ones weren't because nobody's claiming that they were? Why is the payment from Michael Cohen to Stormy Daniels, that's really the crux of this case, why is that alleged to be illegal if those other payments weren't and they were just
So I think that the defense scores some points by pointing to the fact that this kind of catch and kill scheme has been done before for other celebrities. But what I think the district attorney is really going to try to convince the jury of is that for those other celebrities, there was no campaign related purpose behind it.
of making such payments or squashing such stories. And when it comes to people who are running for president or for other public office, there are special rules that apply that just don't apply with respect to people not running for office. And that's what makes the payments that are close in time to the presidential campaign in 2016 different.
But will they have to make the case that Donald Trump wouldn't have done something like this had it not been for the campaign? Because it sounds like, at least the defense is arguing, that this is something that Trump would do throughout his life because he wants only good stories published about him.
So I think that is going to be one of the things that the defense focuses on, right? This claim that the payments would have been made regardless of whether Trump was running for president or not. Pecker's testimony on this was really quite interesting because he was asked directly about what he heard Trump expressing concern about.
with respect to the story of Karen McDougal and Stormy Daniels, that they had had an affair with him. And Pecker said Trump at that time was expressing concern about the impact on his campaign if those stories became public, whereas previously in their course of dealing about other stories, Trump had expressed concern about embarrassment for his family and the impact on his wife. But essentially,
Essentially, the focus of Trump's concern shifted when we got close to the 2016 campaign. And in particular, I think we're going to be hearing testimony that once the Access Hollywood video was released before the election, Trump and his campaign associates were very concerned about
about the damage that that video had done to his campaign and in particular his support among women. And so it was particularly dangerous if Stormy Daniels had gone public with her allegations at that moment in time. And that's why they wanted to make the payment then to keep her quiet. All right. So that was last week. What's in store for us this week?
I think that we're going to be hearing from other witnesses who can shore up what Pecker said about the scheme that AMI was part of to catch and kill the Karen McDougal story and the story that was brought to them by a doorman, I think at Trump Tower, about Trump allegedly having fathered
child out of wedlock, which was not believed. There's no proof that it was true, but they paid him nevertheless. So if there are other witnesses who can shore up what Pecker has said about those payments, we might be hearing from them to kind of lock down that part of the story that's all prelude in a way to the heart of the case,
which is that Stormy Daniels was paid off, allegedly, by Michael Cohen at Trump's behest in furtherance of his campaign. So perhaps we would hear from other people at AMI. We have also heard already from Rona Graff, who was Trump's, I think, longtime assistant, who testified about
some of his contacts and establishing that he had contact information for Karen McDougal and Stormy Daniels. So maybe more people from AMI, maybe more people like Rona Graff from the Trump organization. Maybe we'll hear from Hope Hicks or other people from the campaign who can
that they were in on the conversations with Michael Cohen about Stormy Daniels. So people who will sort of either corroborate what Pecker has said about the background or provide the bridge to the heart of the case, which will be provided probably by Michael Cohen. Maybe we'll hear from Karen McDougal. Maybe we'll hear from Stormy Daniels. I don't think we're going to get to Michael Cohen right away, but I also don't think the state's going to leave him for their last witness.
So it is a little bit of a surprise who we're going to be hearing from. In the background of all of this now is the fact that Judge Juan Marchand placed a gag order on Trump before this trial got underway meant to limit him publicly discussing witnesses, the jury, the district attorney staff, and Judge Marchand's family. And prosecutors have accused Trump of violating the order at least 14 times by my count at this point.
What options does the judge have now for dealing with this? This is probably one of the reasons why the judge has been taking time before he issues a ruling on this, because his options are limited.
Under the statute that the district attorney relies on in seeking the contempt order, for each violation, the judge is limited to $1,000. Eventually, he can impose a short term of confinement, but that's really extreme and it would be rare to do it before initially finding Trump in contempt and admonishing him.
So the options are the fines, increasing fines per violation. Eventually it could be confinement, but that seems unlikely here given that Trump is accompanied by Secret Service and is running for president. And in many ways it could play into Trump's hands politically if he were confined. So the judge may be exploring other options here.
related to the trial. For example, already the defense has not been provided the name of who the next witness is going to be very far in advance, in part because Trump has shown himself to be unwilling to comply with orders requiring him not to tweet about witnesses before they take the stand. So there could be other sort of trial-related remedies that the judge could be thinking about as a way to constrain Trump without putting him actually into custody.
All right, let's talk about public opinion before we move on to the Supreme Court and the January 6th case. According to an Economist YouGov poll conducted in the beginning days of this trial, 43% of Americans said Trump should be convicted of a crime, 37% said he shouldn't, and 20% said not sure. And that matches roughly other polling that we've seen.
Having been involved in federal prosecutions in the past, although I should say probably nothing quite like this, what is your sense of how much outside public opinion weighs on the trial's proceedings inside that courtroom?
You know, I've never been involved in a trial where there was that level of polling about the particular case in advance. Okay, understandable, understandable. Right, so I don't have sort of a wealth of experience to draw upon on the specific question. But that said, I do think that jurors follow the court's instructions very carefully that they should decide the case based solely on the evidence presented and not based on any information that they may have thought they knew coming into the case.
jurors also take very seriously the judge's instruction that they should not be consulting outside materials or things reported in the press about the case. But all that said, there is a way in which what people think before they become jurors can unconsciously influence how they receive evidence. So in other words, if somebody goes in with a firm belief that Trump is guilty, or that was their view, and then they say they can be fair and impartial and
The judge is persuaded of that, so they're selected. Might that preconception in some way unconsciously influence their perception of the evidence and the testimony? Perhaps. If, in fact, the polls are correct, that there's a large percentage of people in the jurisdiction who have a preconceived view, could that ultimately be reflected in the jury's deliberation and the verdict? Yes, but I just don't know that it's in the direct way that one might think.
All right, let's talk about Trump's immunity case. But first, a break. Today's podcast is brought to you by GiveWell. You're a details person. You want to understand how things really work. So when you're giving to charity, you should look at GiveWell, an independent resource for rigorous, transparent research about great giving opportunities whose website will leave even the most detail-oriented reader stunned.
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Last Thursday, the Supreme Court heard oral arguments on whether presidential immunity protects Trump from prosecution in the federal January 6th case. The court's conservatives appeared sympathetic to at least some of the Trump team's claims, raising the prospect that any trial could be delayed until after the election.
Now, how the Supreme Court rules has the potential to shape the campaign, in large part because the public views the January 6th case as the most serious one that Trump faces. In a January YouGov poll, 50% of Americans identified the January 6th case as the most important of the four legal cases. The next highest was the classified documents case
just 23%. So the case in the Manhattan criminal court that we were just talking about, not nearly as serious in the eyes of the American public. The same poll found that more Americans had heard, quote, a lot about the January 6th case than the others, with 59% reporting hearing a lot about the case and the others below 50%. So bigger stakes here.
Jessica, what was your takeaway from last Thursday's arguments? Everyone's reading tea leaves, but it seemed like a lot of folks who are skeptical of Trump's behavior or critical of Trump's behavior were saying, oh, it looks like this trial might not happen before the election. Do you agree? Yes. I think there's a very slim chance that this case could go to trial before the election. It was not at all apparent to me
how the court would construct a majority opinion that would have five votes because you had, I would say, the three liberal justices, Kagan, Sotomayor, and Ketanji Brown-Jackson, who clearly seemed ready to send the case back and hold that there's no presidential immunity from criminal prosecution for official acts. But that's only three votes. Just as Amy Coney Barrett also seemed ready to hold that there's no presidential immunity for official acts,
although she may be ready to carve out some sort of a middle position, maybe some acts could be entitled to immunity that were nevertheless official. So then you're at four votes. And it's just not clear where the fifth vote would come from for that position. But then it's not clear exactly what the conservative majority opinion would look like either, given that there were differences of interest among the justices there.
Chief Justice Roberts seemed troubled by the idea that there could be complete immunity from criminal prosecution for all official acts. And so the question is, if there's not going to be complete, absolute immunity for all official acts by a president, which is what Trump says there should be,
then where do you draw the line between official acts for which there is immunity and official acts for which there is not immunity? Everybody agrees that there's no immunity for private acts, but when we get to official acts,
Where do we draw the line? And that's where I think the court is going to have a really hard time coming up with an opinion that a majority will sign on to. That's one of the reasons why I think we're not going to have a trial before the November election, because they need to write an opinion. And it was not clear to me that they were going to be able to do that now.
anytime soon. And I think there's going to be separate opinions written, perhaps some concurrences and almost definitely a dissent. Those take time to write as well. And so once it does go back in whatever form, then the trial judge starts again. She would still have to give the Trump team a couple more months for trial preparations because that is what they had left on her trial calendar before the case was frozen and when it went up on appeals.
If it goes back with direction for her to make additional findings on the issue of which acts he has immunity for and which ones he doesn't, pursuant to whatever standard the court may articulate in that regard, then that decision could potentially go up on appeal to the D.C. Circuit and to the Supreme Court again. And so we are looking at considerable delays if that's the outcome of the court's decision.
Okay, so say the Supreme Court takes as long as possible to write this opinion. It's still liable to come out by the end of June. And then say they can then go to trial in D.C. You have three months of sort of pre-trial waiting period, as you mentioned. That takes us to, like, September. Could this trial start in September? Would that, at that point, be considered norm-breaking because it would be so close to an election?
It would be unprecedented, but so much is unprecedented in this case. It wouldn't violate any rules of the Department of Justice. There's no rule that says you can't have a trial in a case that was previously indicted.
within a certain window before an election. There is a rule that says you can't indict a case or take other overt investigatory actions in a window of two to three months, depending on who you ask, before an election. But this case was indicted a very long time ago. So this rule doesn't apply to this situation.
Whether in an abundance of caution or out of concern or respect for the election, the DOJ would agree not to have the trial go forward in those two to three months before the election. It's possible, but I don't think that they have to given the
the history here of their efforts to get this to trial well before the election. And at the end of the day, it's not exclusively up to the Department of Justice and the special counsel. It's up to the trial judge who controls the calendar here. So she'll be the one setting the trial date when it comes back to her. She will take into account the views of the Department of Justice. I mean, we know that Trump's going to want it to be delayed. She'll consider what the Department of Justice's views are, but it will be ultimately up to her
and the public does have a right to a speedy trial, it's not only a right that belongs to the defense. And that's something she's going to have to consider as well.
To that point, if you do look at the public opinion polling on this, in March, a majority of Americans, 63%, said that it is important to get a verdict in Trump's trial before the election, including in that 63%, 38% of Republicans. So, of course, I know that the Supreme Court is not meant to take public opinion data into consideration, but that's where it stands. I want to get back to this question about
the merits of the case. You said that no one believes that a president should have full immunity for personal conduct while in office, but there are varying degrees of how much immunity people believe a president should have for official acts. Is there some sort of consensus amongst legal scholars about where that line should be drawn if the Supreme Court is going to engage in this kind of line-drawing activity?
Most scholars agree, and the Department of Justice lawyer, Michael Dreeben, who is arguing for the special counsel, agrees that there are some very core powers to the presidency that are essentially beyond the reach of the criminal law and for which the president therefore effectively has immunity. And those are things that are entrusted to the president by the Constitution, like the pardon power.
or the recognition of foreign countries. But that's a very small number of powers. And so then there's this great sort of middle ground where the president is carrying out duties that he is authorized to do as part of his duty to take care that the laws are faithfully executed and as to which Congress may or may not have spoken
One of the things that was really quite interesting during the oral argument was that some of the justices said, you know, we're calling it immunity, sort of these things that we think that the criminal law can't reach or that a president can't be prosecuted for when they are within his official duties. But it may be that immunity is not the right term, that maybe we're having some confusion about terminology. The Department of Justice lawyer said,
But we could call those things, those sort of defenses something other than immunity. We could say these are special protections that are available to the president that would be, for example, in the nature of a public authority defense when the president carries out an action pursuant to his official duties. We might come to the conclusion that it's not so much that he's immune from prosecution, but that he could raise a substantive offense that he was doing it essentially within the purview of his duties.
Or the president might be able to say, applying a certain criminal law to my actions in certain contexts would unduly interfere with my ability to carry out my constitutional duties. And so essentially it would violate separation of powers for there to be a prosecution in these particular circumstances. And so there are ways in which a president could intervene.
have defenses to prosecution for certain conduct that the Department of Justice would say, right, there wouldn't be a good prosecution there, but we don't call that immunity, right? Those are defenses that could be raised essentially at trial before a jury even, and they don't have to be litigated at this very early stage where this doctrine of immunity has so much force precisely because it prevents the case from going to trial.
There's a lot of partisan motivation surrounding all of this, right? You know, folks who really want this to go to trial and folks who want to see the former president convicted, folks who don't want this to go to trial and are raising claims about immunity, maybe for ultimately those intentions. But let's try for a second to put that all aside. Is there a sincere concern that in saying the president doesn't have any immunity, the trial court ruled correctly in the first instance and go forward and
put this case to trial and try Donald Trump in the January 6th federal case, that in doing so, you would open up future presidents to a whole host of legal liability for things like going to war or, you know, executive actions or things that have historically caused a lot of partisan consternation but have not resulted in criminal cases.
The concern about the consequences of the court ruling one way or the other in this case was a very large presence at the argument because you had some of the conservative justices talking about that very concern that Trump raised about the chill on presidents and carrying out their duties if they were concerned about the possibility of being prosecuted when they left office.
They also raised additional concerns that I don't think Trump himself had raised, but some of the justices raised, like Alito and Gorsuch, that if there weren't immunity for official acts, wouldn't presidents be more reluctant to leave office peacefully because they would essentially hold on to power so that they couldn't be prosecuted by political opponents?
And there was even the prospect raised that maybe presidents would try to self-pardon on their way out the door for any crime they might have been construed to have committed if they weren't offered immunity. So there was this sort of parade of horribles of things that might be incentivized by the ruling of the trial court and the D.C. Circuit here that there's no immunity for official acts.
But then, on the other hand, you had the concern about consequences raised by the more liberal justices who said, but if we say that there is immunity for official acts, doesn't that just license the president to turn the presidency into a seat of criminality with no concern whatsoever about any consequence?
And those justices were saying, we want the prospect of criminal prosecution to serve as a deterrent to those who hold the office from committing crimes and using the most powerful office in the world to commit crimes that might have very grave consequences. And those justices said, and this is what the Department of Justice argued, that there has always been an understanding that presidents were subject to criminal prosecution for official acts when they left office.
office. And there's no record that they were unduly chilled when they were in office by worrying about that prospect. And there has been a peaceful transfer of power every time up until 2020, and no occasion of anyone trying to self-pardon, even without a clear rule that they were entitled to immunity from criminal prosecution. So you had these sort of dueling worldviews
of sort of what's going to happen based on our ruling that was really quite striking.
So the stakes are high, regardless of how you look at it. But maybe this is all a bit of an academic conversation, at least for now, because there was a moment during the hearing when Amy Coney Barrett asked Trump's lawyer, you know, all of these different things that the former president is charged for in the January 6th case brought by Jack Smith, is this an official capacity or a private capacity in which he did these things? And...
Item after item, the lawyer said it was a private capacity. So even if we establish that there is some official immunity, many of these charges would still be able to go forward in a criminal court, right?
So it was a very striking moment when Justice Barrett got those concessions from Trump's lawyer about a number of the allegations in the indictment. And his concession was those were private, unofficial actions. And those included things like working with private lawyers to produce a false slate of electors. Anything that involved use of a private lawyer as part of the alleged scheme, Trump's lawyer effectively conceded was private concessions.
conduct. What he did not concede was private conduct, was communications with members of the Department of Justice about essentially trying to encourage this scheme to create this alternative slate of electors. And Justice Kagan followed up that line of questioning when she asked questions of Trump's lawyer and also sort of got further concessions about what was private conduct
And I, at those moments, thought, well, maybe we should just stop this hearing and send it back, right? If we have this agreement about this essential chunk of the indictment that was private, let's just go to trial on those. But the problem is that there was no agreement, it seemed, among the justices about whether evidence related to the official acts could be used in a case trying the former president for the private conduct.
If you say that evidence about those official acts can be used to prove part of the scheme, but can't be relied on essentially as the scheme itself, that may be possible. But Chief Justice Roberts certainly didn't seem convinced of that. And so you'd have this kind of line drawing and jury instruction issue that I think would
was troubling to the court. And also, the way the charges are drawn, they are these broad sort of conspiracy allegations with respect to several of the charges. And so I think there's a question of, well, can you really segregate out
those official acts from the broadly drawn conspiracy. It's not like the charges are such that there's no one discrete act that's charged that's clearly private that the government can rely upon and so cleanly cleave it from the official acts. Well, we're going to have to have a conversation once we finally get that Supreme Court decision
Taking a final step back here to talk about public opinion, of course, there's a long history of Supreme Court justices framing the court as existing outside of partisan politics, and that's the way that it was largely intended. And the public has oftentimes agreed, you know, according to Pew, in the 80s and 90s, upwards of 70% of Americans held a favorable view of the court, much better than Congress or the president. And, you know,
And Democrats and Republicans weren't much different in terms of how they viewed the court. According to Pew data from 2023, Americans' views of the court are now at a 35-year low, and there are significant differences in terms of partisanship. 68% of Republicans have a favorable view of the court, but just 24% of Democrats.
All of these numbers, of course, were before the court waded into this case involving Donald Trump. What is your sense of the legal system's ability to withstand this era when Americans are losing faith in the court and it is asked to deal with some of the most high-profile partisan issues in its history, perhaps?
This case comes at a moment where, as you say, faith in the court is quite low. I don't know to what extent the way that the court resolves this case can change anything about people's perception. It may be that people's perceptions are now firmly established based on rulings and the conduct of the court, not just its rulings beyond this case. That said, I
I can't think of a more important case that the court has to decide right now. And the consequences of its ruling for the country are tremendous. The way in which the court writes this opinion is tremendously important in terms of the methodology and the clarity of its reasoning. And whether it's able to achieve anything that appears to be close to consensus, I think, is critical.
It may be that they cannot get there, but if they have any hope of retaining faith of the American people, one imagines that Chief Justice Roberts is trying very hard to change.
to try to pull the court together to speak in as close to one voice as it can. And maybe there is some very narrow holding that they can reach that all of the justices can agree on. Perhaps that in the circumstances presented here, there is no immunity from criminal prosecution, even if some of these acts count as official,
and leave for another day exactly where that dividing line is between official acts that are entitled to immunity and those that are not because the question is actually not squarely presented in this case. They could...
achieve the function of leaving out the possibility that there is immunity in some circumstances and thereby essentially leave open the door that there is a constraint on prosecutors for prosecuting their political opponents when they leave office that would essentially address the concerns of the conservative majority if we accept those in good faith, but also send this case back
where it seems that most of the justices ought to be able to reach agreement that there isn't immunity here. All right. Well, that's a good place to leave things. Thank you so much for speaking with me today, Jessica. It's my pleasure.
My name is Galen Druk. Our producers are Shane McCann and Cameron Chartavian, and our intern is Jayla Everett. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or a review in the Apple Podcast Store, or tell someone about us. Thanks for listening, and we'll see you soon. ♪
