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Wait, so his lawyers are going to be like, OK, here's some things that you should not say on the campaign trail. And then he'll definitely say those things. And so what the court is going to do with them, I think, is the open question.
Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. Former President Donald Trump was arraigned in federal court in Miami today, Tuesday, on 37 counts related to his handling of classified documents. He pleaded not guilty to all 37 counts, setting in motion a trial that could run in tandem with his campaign for president. Since we last talked, we got some initial polling on how Americans are viewing this indictment.
So far, a plurality of Americans, according to an ABC News poll, say that Donald Trump should have been charged in this case. It was 48%. At the same time, 47% of Americans also say that they see these charges as politically motivated. In that poll as well, though, we saw an increase in the percentage of Americans who said these charges were serious, up from 52% in April to 61% now.
We're going to have to wait and see exactly how this shakes out on the campaign trail. So far, we haven't gotten a lot of Republican primary polling since this indictment came out. In general, Donald Trump still leading with about 54% to Ron DeSantis' 20%, and then everyone else in the low to mid single digits.
But today, we're going to talk about what we can expect from this trial, considering that it's likely to play out, at least in part, while former President Trump is running for president. So here with me to discuss today in studio is Kate Shaw. Welcome back to the podcast, Kate. Thanks for having me. Great to be back. Kate Shaw is a law professor at the Cardozo School of Law. She's an ABC News legal contributor and co-host of the Strict Scrutiny podcast. So you've been doing a lot of talking today already. Yeah.
Are you ready for some more talking? I'm never talked out, I'm happy to go. We love to hear that. Okay, so what did we learn today that was new? So look,
People who sat down and read the indictment that was available on Friday had a sense of the basic narrative that the special counsel's office is offering. So, you know, as a technical matter, there are 37 counts in this indictment. Most of them are for willfully retaining national defense information. Most of it classified. This is nuclear secrets, military and intelligence secrets, planning, potential attacks. I mean, the most sensitive information the U.S. government has. So he sort of knew all that. And
We also knew the basic kind of arc of the narrative, which is that, you know, Trump, after, you know, failing to stay in office, despite, you know, laboring mightily to do that, eventually leaves Washington, right, leaves the White House on January 20th, right, 2021, and takes with him a lot of boxes. And some of those boxes are, you know, personal papers, and in those boxes are a lot of classified documents. And so within the year...
sort of that follows the National Archives, which under the law maintain presidential records, start sort of slowly and then kind of more urgently trying to get Trump to turn these documents back over. So there is some voluntary relinquishment of some documents, but not all of them by any stretch. And sort of
You know, proceedings escalate so that you have first a subpoena. Some documents are turned over, but it's pretty clear it's not all of them. After that, the FBI gets surveillance footage that shows boxes being moved and hidden even after the issuance of the subpoena. Then there's a search warrant and many more documents are turned over.
So we sort of see this kind of escalating effort by federal authorities, first by asking nicely, then by asking more pointedly, and then using sort of increasingly coercive measures under the law to get these documents. But you sort of have this sense that, you know, these—
officials didn't go in like cavalierly to charge a former president with 37 federal counts. They really did try just to get these documents back. And Trump didn't cooperate, obstructed in a number of ways. And also along the way, while hanging on to these documents, showed them to individuals who had no business, you know, seeing our country's most sensitive secrets. So anyway, so we kind of knew all of that. But we had, you know, I think focusing on it a little bit as Trump is in court, you know, kind of
clarified a little bit both the allegations and the stakes, we didn't get a sense yet of the kind of demeanor of the district court judge who's going to preside over this trial. So this is Aileen Cannon. She's a Trump appointee. She issued some very favorable rulings in an earlier stage of related proceedings when Trump actually filed a civil lawsuit trying, objecting to the FBI's execution of a search warrant. Essentially, once they had gotten the document, her ruling stated that
they needed to be reviewed before they could be turned over to the federal government, which is what Trump wanted. But that was overturned by the 11th Circuit Court of Appeals, which is itself a rather conservative court. Oh, very. And so it was sort of a lucky break that Trump got Eileen Cannon, but she wasn't in court today. Correct. It was a magistrate judge, and that's typical for early stage proceedings.
So one thing that's going to be really important in this case is the kind of she's going to set both the tenor, I think, of the proceedings and also the tempo of the proceedings. And so we just don't know yet what her disposition is going to be. So we're going to have to sort of await another appearance. Another should probably be at the next meeting.
We don't even know yet when that will be. We also learned that Trump is really struggling to build a legal team that will help him defend against these very serious federal charges. So he had two lawyers with him in court today. It's been widely reported that he is actively interviewing additional attorneys. The two attorneys who were in there in court today, Todd Blanch sort of seemed to take the lead role, is also involved.
seems to be in the lead role in the case in Manhattan, right? That was the arraignment that was in April over the kind of hush money payments to Stormy Daniels. And these are just really complicated, big, big cases with enormously high stakes. And you need a lot of lawyers to properly run these cases. And so, you know, it's not clear to me
when and how Trump is and if Trump is going to be able to assemble the team. But that was something really striking today. Two lawyers in court. We think there are going to be more, but we don't yet know sort of who, how or when. Yeah. I mean, the thing that I was most interested in finding out today, I don't think we got a great sense of, which is timeline. Because as much has been made of the fact that a former president is being federally charged and
It's in some ways more important that a leading candidate for president is being charged. Also something historic, but that's maybe been a little bit less of the focus because he's going to be running for president in tandem with this trial. And it's a really big question of whether or not these proceedings will wrap up by
by the time the November election comes, he may not win the Republican primary. We'll have to see. But he's pulling out about certainly looks like it right now in 538 averages. So a significant lead at this point.
What could a potential time—first of all, let me ask this. Is there any world in which this is all wrapped up by November of 2024? I think it is unlikely. There is certainly a world in which it could happen. There are definitely cases that have been—have moved from arraignment to final judgment in under a year. That's entirely possible. The Manhattan case, for example, of course, a state case, not a federal case, has a trial date of March of 2024. Now, I suppose that could move, but my sense is that they're going to really try to make that date stick.
And so that's going to be, you know, in about an 11 month window between the arraignment and the actual trial. I think if Cannon wanted to follow a similar timeline where we were, you know, in May or June of 2024, you know, it's, you know, it's well into the election year, of course, but it's before the November election. I think it's entirely within her power to do that.
There are a couple of reasons, though I think that's really unlikely. One is any case like this that involves significant amounts of classified information presents enormous complexities because you need to both give the defendant a sense of what's in the documents. Now here, Trump obviously had these documents, but he and his team need to be able to assess exactly what the documents on which the charges are based are. And yet the information contained in the documents needs analysis.
to be safeguarded, typically. And also, there needs to be a way to give the jury a sense. And sometimes that involves showing the jurors but not releasing to the public. There are just various measures that can be taken that are part of the procedures that a statute called the Classified Information Procedures Act sets forth. But the point is, as this description probably conveys, this is pretty time consuming to figure out how to devise the procedures with respect to each document and then actually execute all of it.
So, yes, under any ordinary circumstances, I think this is probably like a two-year process we're talking about. And, of course, that means trial after the 2024 election. So I think it's – I think it will really turn on how much Cannon is convinced by the special counsel's office if they argue as they expect they will that this is urgent, that this has to move swiftly so that the American people can go to the polls in November of 2024, even if not like primary voters, but certainly in the general election if he's the nominee. Yeah.
you know, with this having run its course, with the sense of whether he's been convicted or not. He could still win even if convicted. It doesn't preclude that. But that's a political argument. So, you know, it'll be an interesting and complicated one to make in a court, but one I would expect them to try to make in some fashion. Right. So, and Donald Trump during all of this is either hoping
Perhaps that the trial runs its course and he is acquitted of all charges before November 2024 or that he certainly doesn't want to be convicted before 2024. So he could either work really hard to speed it up and try to get an acquittal and maybe we can talk about some of the angles that his defense can take.
or he can try to make it take a really long time. Is it clear which one he's trying to do? I think both are in theory conceivable. My strong sense is that it's going to be the latter, that he's going to try to slow walk this in part because this is only Trump's second criminal arraignment, but he has been a litigant in countless civil suits, typically as a defendant. And
It's kind of his trademark to just sort of run out the clock, slow walk things. This happened. His administration used this tactic to great effect when being investigated by Congress and the Manhattan DA at an earlier stage of the proceedings that did ultimately result in charges and countless other investigative bodies. Sort of stall and delay is kind of a Trump go-to in litigation. And so for that reason, I think it's likely here. But I also think that if he manages to drag things out, does secure the Republican nomination, and then wins,
If the case is still pending, he'll install a new attorney general and presumably make this go away, right? He could or he could have the attorney general fire the special counsel. Maybe the special counsel could raise a constitutional – maybe the special counsel could raise an objection to that. He presumably thinks he has the constitutional power to do it and he probably does. Even the statute I think gives him some wiggle room. He could assert that there had been some misconduct. He's already said that.
So I think he could easily make this go away if he wanted to, if the case is still pending and he's the president or once he's inaugurated, not just elected. Or if somehow he is convicted at some point along the way but manages to win anyway, I presume he'd try to pardon himself. And, you know, there's a really big open legal question about whether self-pardon is a thing you can do. No one's ever tried. But I certainly don't think that would stop him. So I think – and I guess I think that, you know,
If he doesn't secure the nomination, there's already talk among the rest of the kind of primary field about who would pardon him if they won. And so, you know, if he drags things out, so even if he is convicted, it happens as late as possible such that he can be swiftly pardoned by whoever the next Republican president is. That too seems like a better outcome if you're Donald Trump than, you know, rolling the dice and maybe ending up convicted and doing a significant stretch of time in prison because there's a lot of potential time attached to these charges. Yeah.
Yeah, we've heard from some of his rivals in the Republican primary, very approaches that they're taking to these charges, which is, you know, of course, on one hand, you have Chris Christie, who's already said that he's going all in against the president, who's been really critical. But then you have someone like Nikki Haley, who initially called it prosecutorial overreach. Then she said, you know, if this is in fact true, this is very serious. He's putting our military men and women in risk, in danger.
But then today, you know, she said that yesterday on Fox News, but then today she said she would consider a pardon. So we're kind of seeing some waffling, I guess, maybe trying to get a sense of where the Republican primary electorate is at. I mean, from the polling that we have so far, we know that they believe that it's politically motivated. And given that this is a Republican primary, those are the people that you have to kind of bring along with you when you're trying to message on all of this.
So, OK, let's take the view that Trump is trying to make this take as long as possible. What kinds of mechanisms can he use to make that happen? Well, I think he's likely to try to file a bunch of different motions to suppress parts of the evidence so he may again challenge, you know, so the 11th Circuit reversed the canon ruling that you described earlier on. And that was this, you know,
very, very suspect in my view, and in most, I think, legal commentators view, ruling that DOJ couldn't even access the information that it had obtained, and that a special master had to review all the documents in the 11th Circuit, which was composed, if I recall correctly, of three Republican appointees, two of them Trump appointees, and one, I think, a George H.W. Bush appointee. But either way, three conservative Republican judges really rebuked her in reversing that order, but never
But nevertheless, you could imagine a set of arguments that his attorneys could make that suggest that this search was unlawful and the documents that were secured as a result of that search should be suppressed.
We don't know actually exactly where each of the 31 documents that are the basis of these Espionage Act charges came from. I suspect they were carefully selected. So maybe some of them came from that search. Some of them they received in response to the subpoena. So even if – I can't imagine it, but if in some universe the argument is suppressed,
those documents was successful, you would still have other documents remaining that you could base charges on. I think they will probably try to file a motion to suppress the evidence that was provided by Trump's attorney. So attorney number one in the charging document in the indictment, but it's pretty clearly Evan Corcoran, who is a top Trump lawyer, who ended up testifying after a district court judge in D.C. decided that attorney Klein Privilege did not protect his conversations with Trump because of something called the
crime fraud exception, right? You don't get to protect your conversations with your attorney if the conversations are about furthering or covering up a crime. But that wasn't this district court judge Cannon. It was a different judge. So maybe in front of Cannon, they say that judge got it wrong. And none of the information provided by Corcoran should be ever shown to the jury. And so you try to get... So those are some of the arguments as to specific categories of evidence that I presume his lawyers will seek to have excluded.
I think then you also have some sort of bigger arguments that I presume they will make. And they've alluded to in kind of public discourse but not really in court, which is one, the argument that Trump has alluded to many times and actually that even his spokeswoman who was talking outside of the courthouse earlier sort of suggested, which is that because Trump had as president the power to declassify documents, he had either a standing declassification order under which everything that left the premises was automatically declassified or
which I think doesn't actually totally answer the Espionage Act issue because the documents can still be national defense information, even if not classified. But I think they'll try to maybe make that argument. And then there is an argument that they did make in the earlier stage of these proceedings and that also a bunch of kind of Trump allies and surrogates have been making, which is that
Under a statute called the Presidential Records Act, which is this, you know, post Watergate 1978 statute that makes clear that documents produced in the White House are, you know, the public's property that after an administration ends those things go to the National Archives, you know, for posterity, right? Like we have to have the history of our, you know, highest authoritative.
offices of government. But there is an exception for personal records, right? So if the president gets a birthday card from his grandkid, that doesn't have to go to the archives. He can keep a personal record. And they seem to be positing some just kind of boundless conception of personal records such that the president could deem anything a personal record and thus take it outside of the coverage of the Presidential Records Act, which I also don't think answers the Espionage Act question. But
These are just variations, I think, on the kind of basic legal thesis that the laws and the rules just don't apply to the president in any meaningful way. The president can sort of do whatever he wants, packaged somewhat differently. So that's the range of arguments that I envision that they will bring. And you could bring them over the course of a lot of months, and that's one of the potential delaying tactics.
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Since the last time we talked, this indictment was made public. We had a conversation after we learned that the former president was being indicted, but we hadn't gone through all of the details.
There's a lot in there. And I'll say I actually listened to the audio version. It's on YouTube. I listened to it while I was cleaning my apartment on Saturday. So I didn't actually read all 49 pages, but I listened to them all. I have both read and listened, actually. And it's actually, you know, it's written in such a way that it actually makes relatively easy listening because the dialogue is sort of recounted in a way that sounds like natural conversation. And, you know, Jack Smith and his team are sort of telling a story in all of that, you
So I think the pictures of documents spilling out, the pictures in a Mar-a-Lago bathroom, those probably caught folks' attention. From a legal perspective, what's the most dramatic or significant detail in that charge?
charging document? I think that there is one exchange that is recounted verbatim between Trump and some individuals who are working on a former staff member's memoir, in which Trump is basically, you know, I think it's Mark Meadows' memoir. I think everybody surmises, although the document doesn't name Meadows. And he's basically responding to public critiques about, you know, his
at least as sort of reported, his late in his term kind of consideration of or efforts to actually bomb a third country, right? So to launch a military attack. And he says he's sort of defending himself to these third parties. And he's pulling out – he pulls out a classified document that he says essentially supports his version of the facts, contra the version told by this other party.
The facts aren't that important. What's important is this is a highly classified document. He pulls it out and shows it to individuals who didn't have security clearances, didn't have any need to access that information. It's solely being offered to shore up Trump's defense of his own essentially record in office. And he says, while showing the document, you know, isn't that amazing? And then he says, I could have declassified it. I had the power as a president. But basically he says, I didn't.
And so there you have Trump acknowledging that he's got – he's unlawfully retained this document and seeming to acknowledge that despite having had the power to declassify the document, he in fact had not exercised it. So everything in that conversation as alleged in the indictment really, really sort of powerfully illustrates that
that Trump had documents he had no lawful right to retain, that he knew it, that he knew it was unlawful, and that he knew they remained classified and knew he had no right to show them to these individuals who had also no right to see them. And there are other exchanges involving his lawyer Corcoran and involving a representative of his political action committee to whom he also shows a document and sort of makes a similar, less explicit acknowledgement of the impropriety by basically telling this representative not to stand too close to the map is what it was. So those, to my mind, are the sort of
From the document sort of retention perspective, those are kind of the most significant pieces of evidence. And then with respect to obstructing justice, withholding documents, so you have charges 1 through 31 are all these retention charges. And then you have sort of a handful of other withholding or concealing, making false statements, conspiring to obstruct justice, that kind of category of charges.
And they're, too, the story of the conversations with the lawyer, Corcoran, that basically say, you know, can we ignore the subpoena or say we don't have documents? And then can you maybe pluck out a document if it's really bad once some documents were located that I think are quite serious with respect to the kind of latter category of charges. So what's Trump's strongest defense?
You know, this is a really tight document, legally, narratively, everything. I mean, I suppose he can try to sort of whittle away the edges of it in terms of throwing out some categories of documents. Try to get evidence excluded from the actual case by saying it was either, you know, collected in an improper way, that it violates attorney-client, like some of the things that we've already talked about. Yeah.
You know, one, I was reading Playbook this morning. I, you know, I'm not, I'm not that kind of Politico person. Okay. I haven't read it this morning. I did this morning just because so much is happening in the world. And while I was drinking my coffee in bed, I was like, okay, I got it. You know, I need this to begin to organize all of the day's events in my brain. And they talked to a former Trump attorney, Timothy Parlatore, who left the team recently about, you know, what's Trump's defense. And, you know,
the list was, there's five things he said, pursue aggressive discovery. Essentially the position he took was the,
The prosecution's argument is always the strongest the day they reveal the indictment because it's only the information that they want the public to see and nothing else. And so in the process, Trump's team will try to get other information that might try to put what seems now like black and white into some gray area and essentially make the team that was investigating him look bad. Right.
pro-potential prosecutorial misconduct was number two. Attack the search warrant, which is one you already mentioned. Get the lawyer's notes excluded. You also mentioned that, saying that it violates attorney-client privilege. And then five was undermine the process that produced the indictment. So something that he's been doing all along, saying this is a witch hunt, that this is improper, that it's Biden's DOJ, etc., etc.,
In all of that, is there something that sticks out as a legal scholar and expert in all of this that you're like, okay, yeah, yeah, yeah, Trump has a chance here.
Not really. I mean, that last item on the list that this is a witch hunt, this is a political persecution, that's just political rhetoric. I mean, you know, they're actually, I'm not, you know, what was in the minds of individual, and I guess that's both the fifth and the second of the, or the whatever, yeah, prosecutorial misconduct was the second, you know, that somehow there was malice toward Trump that could be revealed somehow. I mean, I'm not,
I'm just not sure that does, that is not typically, you know, a complete defense to the retention of documents or the obstruction of justice or any of the other charges that are here. So that seems to me to try to, you know, create a mood politically, like that's campaign rhetoric, but I'm not quite sure even what the kind of contours of the legal argument are. I mean, I imagine with both of these, what Trump has in mind is, you know, he was fixate, has been long fixated on, you know, these text messages from FBI agents during the sort of
early days of the, I think this is even pre the 2016 election, Lisa Page, Peter Strzok, right? So he's very fixated on them. So here's what I imagine is going through the minds of his team. Let's just like try to get everything we can from everybody on this team. And maybe, you know, you find something where somebody seems to reveal some bias against Trump. I still don't quite see how that gets the charges thrown out. I'm just not, that's, there's a real leap and there's not really precedent for that. Now, malicious prosecution is...
a real concept and there are cases about it. But an aside in a text message, even if such a thing were to be found, which I don't know, I kind of think Jack Smith probably has his team very buttoned up and especially given the history here, I doubt there are going to be messages of that nature. But even if so, that's very, very far short of establishing a malicious prosecution, which I think is what he's sort of – what this stuff seems to be gesturing toward. But it's –
like just facially insufficient if that's sort of all they've got. But of course, Trump, you know, is going to be tried. Assuming this makes it to trial. When this makes it to trial, he will be tried in front of a jury of his peers. So there's the law as it's written. And there's also the perception of the 12 jurors who ultimately end up deciding whether or not he's guilty and
And it seems like that might be these kinds of arguments might be more geared towards a jury than just towards the letter of the law. What are the complications going to be in terms of impaneling a jury? I think it'll be 16 people, 12 who will actually sit for alternatives. And what?
what kind of arguments might they make to appeal to the people sitting there that you may not be thinking of as like, okay, this is how the law works, et cetera? Yeah. No, I think that's, you're right to draw the distinction. So my assessment of the legal theories that you just offered was that
You know, it's very unlikely to me at this stage, at least, that a judge would, you know, throw out the case in its entirety or significant, you know, suppress significant parts of the evidence based on any of these theories. But you're right, assuming this does go to a jury, you know, arguing that
that this is an unfair prosecution that other, you know, political figures have engaged in misconduct, have not seen criminal charges that he has. I think it's right that, you know, I suppose it's possible the prosecutors could object to arguments like that, but that a judge would probably let his team make those kinds of arguments to a jury. And so the jury poll, I think, does matter a lot. And I do think that, you know, there's a lot of, you know, kind of
head-scratching about why this case is brought in Florida and not in D.C. as a lot of people anticipated or predicted. And one, I think that venue is just this legal concept that you're supposed to charge where the misconduct occurred, and most of this did occur in Mar-a-Lago, not exclusively. And there's maybe some legal ambiguity around the kind of taking of the documents part of these alleged events because, you know,
He actually leaves town before noon on January 20th. He actually is still the president. It just muddies the water a little bit. The retention is much more clear, and that's mostly in Florida. And also, he isn't charged for the retention of any of the documents that he initially returned to the archives, right? I think that's right. I don't know that we know enough about the identity of each of the documents, but my sense is that...
Within that first year of requests and then demands from the archives, he eventually does turn over a lot of documents. And then there's the subpoena. And then there's the search warrant. But I think it's right. These 31 are not from that initial tranche that was voluntarily surrendered. And I think that's really important in terms of making clear that if Trump had just cooperated
I don't think we're seeing these proceedings at all. So all of this, we are seeing the federal charges and the likely trial bearing down on us, although who knows when, not because he took the documents or not exclusively because he took the documents, but because of everything else he did vis-a-vis the documents. And that's just a hugely important distinction between a Hillary Clinton or a Joe Biden or a Mike Pence who had some classified documents and cooperated fully effectively.
The moment that came to their attention and in some cases like with Biden, it was his own team that even identified and volunteered the existence of the documents. And I think that's true about Pence as well, actually. So it's, you know, so there's sort of a world difference. But back to the jury pool. Yeah, it's yeah. I mean, I think that bringing this case in Florida, like that's likely more Trump sympathetic terrain than like D.C. or Manhattan, where the state charges are going to be tried next March.
And so, you know, I think that maybe tactically the special counsel made this choice not just because of the venue issue, but also because it's going to be very difficult if you can secure a conviction under these circumstances with Judge Cannon and with a jury pool that's going to be a pretty Trump sympathetic jury pool to, you know, accuse the proceedings, accuse the prosecutors of misconduct, sort of suggest proceedings.
rigged proceedings witch hunt. You've essentially sort of taken on a very – a much more difficult place and setting to try this case than other available options. And so a win under these conditions should in theory be kind of airtight, but –
And probably Trump could accuse the prosecutors of witch hunt no matter what. But I imagine that those things sort of came into play. And I think that, yes, it's possibly a jury pool that those kind of politically inflected arguments might resonate with. Yeah. I mean, how do you think about the possibility of a hung jury in a case like this? Right. I mean, how do you find people?
12 people, 16 people who don't have an opinion about Trump or some even if it's not right. A lot of Americans don't have super strong political views in the way that you might see them portrayed by party activists or lawmakers or, you know, partisans on TV. But they'll have a general sense of like, I don't really trust the government. This seems shady. Like they're probably going after Trump or like, you know,
yeah, this guy seems corrupt. Like I totally believe, you know, I think almost anyone would come into this with, if not some sort of dedicated position, a sense of which side they might be on. Yeah.
I mean, look, you guys poll and sort of know what Americans say about Trump way better than I do. I mean, I guess I take a little comfort from the E. Jean Carroll proceedings, which is that like jurors really did say that like not everybody falls. Not everyone's reading political playbook like when they wake up in bed in the morning. Just drag me. And so I actually don't. Again, I think it's possible that you might have people who don't have super strong priors in about Trump. A lot of people do, but also, you know, even like a lot of Trump supporters may, you know,
when faced with the kind of gravity of these charges, actually sort of say like it does seem like the elements have been satisfied. So anyway, all this to say you had the Manhattan jury that was impaneled in the civil, you know, rape and defamation case brought by E. Jean Carroll. You had a mix of people, most of whom said they didn't consume a lot of news. And, you know, where this was a case that was really on the law, really very strong. And they found Trump liable in like, you know, a matter of hours, incredibly fast verdict. Now, again, that's,
Manhattan jury back to the earlier point that may not be predictive of the substantive outcome in Florida. But I think it's- And they did draw a distinction too, right? They said he was liable for defamation and abuse, but not rape. That's right. Yeah, no, that's right. And so you had this group of, I think,
relatively ideologically diverse individuals who coalesced around. And you're totally right. It was an interestingly split verdict where they did find that he was responsible, but they did find not as to the rape, which is a little bit of a puzzling statement.
verdict to sort of get your head around. But like, you know, maybe they were just really applying the law and sort of assessing the facts as they had been presented them and said, yes, the elements are satisfied with two, but not all of the claims that have been brought. So, I mean, maybe this is like sunny optimist me, but I think there's a decent chance that you could get a fair minded group, you know, kind of anywhere and let the prosecutors present these facts and let the chips fall where they may.
Yeah, I mean, I do because I think one of the arguments that's going to be made in public throughout this entire process has already been made. It will be made. It will be part of the atmosphere in which this jury, assuming this goes to trial, is deciding this case is like, look at Hillary Clinton, you know.
she was running for president. She used a private email server. There were 60,000 emails. She deleted 30,000. It came to be the case that there was classified documents and even top secret information within those classified documents that were on her private server. Ultimately, she wasn't charged. How could this be? Why would Trump be charged in this case, but not Clinton? And of course, folks will say,
Clinton fully complied, et cetera, et cetera. Trump will respond, yeah, but what about all those deleted emails, et cetera, et cetera. So, I mean, for people who just want to get to the bottom of what's
why wasn't Clinton charged? Why is Trump being charged in this case? What's the sort of clearest explanation? I mean, I think that Comey, when he announced that he wasn't charging Clinton, basically made clear that there just wasn't evidence of intent, right? Like that she had intentionally retained classified information, taken, retained, intentionally deleted material in order to conceal some unlawful activity. Like the law cares a great deal about your state of mind and
intent in particular. And the indictment, you know, the facts alleged in the indictment here in the Trump case make crystal clear that, again, these are allegations, but the allegations are that Trump absolutely knew he had taken the documents, he had taken them unlawfully, he concealed them. All of this was done deliberately and intentionally. And you just didn't have evidence of that in the Clinton case. And from a legal perspective, that is just a world of difference.
Going back to the jury for a second, how this all plays out is going to have a lot to do with how Judge Eileen Cannon wants it to play out. She'll be able to make a lot of small decisions surrounding juror selection, timeline, things like that. Can you just lay out how those could all come together to shape the next trial?
year plus of this? Yeah. Look, in theory, she has the power to do everything up to and including actually just throw the case out, right? Like she could end it. She could say, now the jury's supposed to decide the facts, but she could say, the law doesn't allow, you know, even if everything is exactly as you prosecutors say, there actually isn't a crime here or a set of crimes here. And she could actually dismiss the whole case. Not very likely having read this indictment and having read a lot of indictments, but nothing, you know, so that just gives a sense of how much
kind of power she has over these proceedings. But yes, I mean, she could set a status date in a week. She could set a status date in six months. You know what I mean? She could start things off really quickly or really slowly. And six months is probably far. And we should say, I don't think we've mentioned this, this court in Southern Florida actually has a reputation as one of these courts that sometimes people call like a rocket docket court. They actually do move things relatively quickly compared to other- Rocket docket court.
There's a name for everything. I know. So there's a few of them. But this – anyway, it's known to move things along expeditiously. So there actually is a statute that in theory is supposed to like require things to go to trial within 70 days, like 70 business days. So it's two months. Never, never happened. And mainly it's designed to protect defendants from having just to kind of suspend their life and be in limbo while they wait for a case brought against them to be brought to trial. So if the defendant who's protected by both the constitution and this statute –
is the one trying to drag things out. Like, the judge might be kind of willing to go along. So she could rule quickly. She could sit on motions for weeks or months. And, you know, at some point she will set a target trial date, presumably. And that could be, again, that could be next spring. It could be, you know, a year and a half from now. We just, it could be after the election. We just, we just don't know. So those are, I think we will get a sense of
of our disposition about all of this as soon as we actually see her on the bench beginning to make some rulings. Yeah, I think we've laid out some of it, but what's the range of outcomes here from basically throwing the case out all the way to prison? Yeah, I mean, if he is convicted on, you know, 37 counts here, you know,
He is fundraising with a claim that he could be facing 400 years, right? So he likes to sort of embiggen everything, including like the possible prison terms. And maybe that's right if you actually stack. So I think these Espionage Act charges have a max of 10 years. But even if you were convicted on all of them, very likely they would run concurrently at the same time as opposed to consecutively one after another. Right.
But if you add in everything, the kind of legal analysis that I've read that seems sound is that we could be talking like 25 to 30 years, like on the outside, like at the high end, which is a lot of prison time when you're 76 years old or any age. So that at least in theory is possible. But of course, that wouldn't be the final word. There would, I'm sure, be an appeal and appeal.
very likely he wouldn't have to start serving a sentence until after the appellate court had ruled and potentially a Supreme Court ruling. So, you know, even if it happens fast and there's a conviction fast,
It's a lot of ifs, but even if that did happen, that wouldn't be the end of the legal proceedings either. So we're looking at a pretty long haul, even under the most accelerated version of these events. Trump is, of course, going to be dealing with this case while he's running for president. What does the law say about how a convicted felon can go about running for president or being president? And of course, he's not a convicted felon, but if that were to be the case. Yeah.
So the Constitution sets forth a few requirements to be president, right? You have to be a natural born citizen. You have to be 35. You have to have been a certain number of years a resident. And that's it. Like there's nothing about no criminal convictions or even like a free person not subject to, you know, a prison term. So, you know, it is absolutely possible within the, you know,
confines of the Constitution and federal statutes to run for president while under indictment, even potentially while convicted, even potentially while incarcerated. The challenges are logistical, right, not legal or constitutional. So look, I have to imagine that if it somehow came to pass he was convicted and actually started serving a sentence so he was incarcerated between now and November of 2024, which I absolutely do not expect to happen, but just since we're talking about possibilities –
I imagine that the judge, if it's judge canon still, and I presume it will be, there's been some talk of trying to get her to recuse. I don't know. We haven't heard any indication to that effect, but at least that's a thing that can happen. But I would imagine she would actually suspend his service of the sentence and let him finish the presidential campaign, not require him to actually be in prison. Judges have a lot of discretion and control over when somebody has to say start to serve a sentence, and they'll exercise discretion. If you have a pregnant defendant, let them give birth and then begin serving a sentence.
You know, so I don't know. This is not so dissimilar. So I think that the judge could actually say, and then, you know, once he's in, he could try to pardon himself. And so the whole thing goes away. Again, if he were to win. If not, I presume he would start serving after the loss. But I don't imagine a scenario in which he is literally running a presidential campaign from a federal prison. I don't think that's likely to happen. As we start to wrap up here, sort of putting this in context of –
why this is making history. It's a former president being federally charged and a leading presidential candidate also being charged. There's this concern that in democracies, you have to be very sensitive about prosecuting your political opponents. Of course, at the end of the day, this is
Joe Biden's Department of Justice. And so and Republicans are claiming that this is prosecutorial overreach, that this is not an impartial Department of Justice. We see Republican voters basically views of the FBI have even switched. So Democrats used to be more skeptical of the FBI. Now Republicans are more skeptical of the FBI.
And so I think we're going to hear from Republicans, you know, this is stuff of dictatorship. We heard from Trump's attorney today. This is stuff of dictatorships. This is stuff of banana republics and commentary along the lines of, you know, be careful the next time a Republican is president. You know, Democrats are going to find themselves prosecuted in similar cases. So how can we look at all of this and be sure that this is an impartial judgment?
judicial process playing out. This is the way that things are supposed to work. Yeah. I mean, I think that's an important question from the perspective of kind of, you know, the norms of a constitutional democracy and the rule of law. So I think that just constantly sort of checking in to be sure that we are not concerned about partisanship playing any kind of role in this prosecution is actually really important. I mean, the things that I think are important sort of countervailing values to this
norm that we ordinarily do not prosecute political opponents in this country. And that, of course, is right. But there are lots of examples of high-ranking political officials who have been prosecuted, sometimes by prosecutors of their own party and sometimes of the other party, where they've engaged in egregious misconduct. So I'm from Illinois, like most of our former governors have been prosecuted and sentenced for various kinds of offenses. So we have prosecuted
senators, members of Congress, federal judges, governors, mayors, high-ranking military officials, cabinet secretaries, two vice presidents, right? So both Aaron Burr and Spiro Agnew, although Agnew kind of resigned at the very moment that the charge happened. So you can sort of quibble about whether he was charged as vice president, but he was charged basically functionally as vice president. So it's actually like we have seen this and it has not, I don't think, caused
like a cycle of retribution and payback. Rather, I think it's actually been really important to preservation of rule of law values because I think while it is dangerous to be in the habit of prosecuting political adversaries or opponents, it's also really important that the rule of law demands sort of the application of the same set of rules and norms to high-ranking officials as
apply to everyone else. And we have seen lots of other people who aren't former presidents who engaged in far less egregious acts of document retention and obstruction than those alleged in this indictment be prosecuted and sometimes convicted. And sometimes, often we'll be allowed to plead to a lesser offense and sometimes not even serve any prisoners would have a Sandy Berger, a former national security advisor to President Clinton, who took
classified documents and ended up pleading to some lesser charge and, you know, paying a fine and serving some community service. So I think that being mindful of the kind of positions that high ranking officials occupy and candidates, as you say, like he's not just a former president, he's a candidate. And so I think it is appropriate to be kind of mindful of that in structuring these proceedings. And of course, every accommodation has been made. He will have Secret Service protection for life, whatever happens with the 2024 election. And so that means that
The details of these court appearances look really different for Donald Trump than they do for anyone else. And all that is actually really important. But I don't I think it takes that argument way too far to suggest that all of that, the fact that he gets some he is entitled to some some unique kind of treatment because of his
office, that that insulates him in an absolute way from potential legal liability and even criminal liability if he actually engaged in the conduct alleged in this indictment. Yeah. And speaking of those lesser charges, is there any expectation that a plea deal would be offered or that it would be taken? I mean, I kind of almost feel stupid asking this question because I couldn't.
kind of assume that Donald Trump would not want to admit guilt under any circumstance. But since we're covering this entire case, literally A to Z, you're truly like a...
constitutional open book. Is there any law that you're not familiar with? Yes, tons. Since we're covering it all, I mean, I guess it's worth asking. Yeah. I mean, I think that ordinarily there would be a plea offer from the special counsel's team. And I also think that you're right, the chances of Trump taking one are less than zero. But I think that they'll be, I think that they would be offered. And, you know, they're like
Even is there are mechanisms where you can take a plea, it's called an Alford plea, and not actually admit guilt. So maybe something like that might be offered. But regardless, it will look like, and I think for that reason, Trump would be totally unwilling to do it. Like there's an admission of guilt there, and that's not something that
Trump really, I think, seems capable of doing right, admitting wrongdoing in any fashion. And so I find, yeah, I would say less than zero. But yeah, I would expect that an offer would be made because I think that this team is trying to do things exactly by the books and under any ordinary circumstances, like a plea offer would be made. All right. Well, I've run out of the questions that I have to ask and you have, you have,
Certainly satisfied my curiosity on many different aspects of this case. But I just want to ask you before you go, what questions do you have? Like, what are you curious about, either from like a nerdy legal perspective or from a how is our country going to process this perspective as things play out?
Yeah, I mean, his legal representation is a fascinating question to me. I mean, it is, you know, it is a very, very, like, high-status job, typically, to be a former president's lawyer. And that's, you know, lawyers like high-status stuff. It's, like, very high-profile. You can opt that hourly rate, right? Exactly. And so normally I...
Normally, there would be just a ton of people who would be really interested in taking on this representation. And it is striking to me that it seems as though he's having a hard time finding legal representation. So I'm going to be really curious who he manages to secure as a legal team. And I think that understandably, I think it's increasingly difficult, in particular with some of the conduct vis-a-vis his attorneys that's on display in the indictment. It might be kind of hard to convince people, as attractive as it is,
to come on board because you're actually like taking on some legal risk yourself, at least based on, again, the allegations in the indictment. I will also see how they make versions of this Presidential Records Act or this inherent declassification authority kind of arguments. I mean, sort of fundamentally and deeply, I think that Donald Trump actually doesn't think that the laws apply to the president. And that's, you know, Richard Nixon didn't either, right? The president does it. It's not against the law. And so I actually think that
you're sort of seeing that's actually the kind of the core of some of these arguments, even though again they take on slightly different form. So how those arguments actually get made in court as opposed to in the political sphere and how they're received by Judge Cannon and just the kind of the sort of dialogue between the arguments made politically and what happens in court and whether the special counsel's office brings things that
that Trump says on the campaign trail into court where they think it would be helpful to their case if he sort of says, yeah, I did this, but I had the right as a president. Well, the admission, yeah, I did this is not helpful to his legal defense. So I'm going to be interested in the kind of interplay between those two. So his lawyers are going to be like, OK, here's some things that you should not say on the campaign trail. And then he'll definitely say those things. And so what the court is going to do with them, I think, is the open question. Yeah.
All right. Well, we will see. But for now, thank you so much. I really appreciate you joining today. Sure. Thanks for having me. Kate Shaw is a law professor at the Cardozo School of Law. She's also an ABC News legal contributor and co-host of the Strict Scrutiny podcast. My name is Galen Druk. Tony Chow is in the control room and also on video editing. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet us with any questions or comments.
If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening and we will see you soon.
