Will Voters Care If Trump Gets Indicted?

Publish Date: 2023/3/23

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Hey there, listeners. Just a reminder before we begin today, we have a live show coming up in New York City on April 19th. It's going to be at 7.30 at the Bell House in Brooklyn. And the place to get your tickets is 538.com slash live show. We've got a little less than a month until the show, and we're already two-thirds sold out. So if you've been waiting to get your tickets, now is the time to go get them because we're

I don't know, I think we probably will sell out and we don't want you to miss out. So that's 538.com/liveshow where you can get your tickets now. Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. All eyes have been on the Manhattan District Attorney's office this week to see if Donald Trump will become the first former American president to be indicted.

As we record on Thursday morning, it appears unlikely that any indictment will come this week. And the reality is that even if the grand jury were to indict, the charges wouldn't be unsealed until the defendant appears in court. So we're going to take this opportunity to talk about what we do and don't know about Trump's legal jeopardy and the possible political impact.

The investigation of an alleged hush money payment to Stormy Daniels is one of at least four ongoing investigations that touched the former president. There are also ongoing investigations in Fulton County, Georgia, over attempts to meddle with the results of the 2020 election, and the Department of Justice is investigating both the treatment of classified documents and the January 6th attack on the Capitol.

In fact, the case in New York that has been the focus of so much attention this week may well be the least serious and even the weakest case against Trump. So here with me to talk about the details and implications of all of this are senior politics reporter Amelia Thompson DeVoe. Welcome to the podcast. Thank you, Galen. And also here with us is senior elections analyst Nathaniel Rakich. Welcome to the pod.

Hey, Galen, how are you? I am doing pretty well. We thought at some point this week that this would be an emergency podcast reacting to an actual indictment, but it seems like things have gotten tied up with regards to the grand jury and the Manhattan DA's office. And so we're going to maybe take a broader look today at some of Trump's legal jeopardy, talk about where this all is in the process in Manhattan, but also some of the other cases, because I think

think the general consensus is that this may not even be the most potentially damaging case for Trump. But let's begin with Stormy Daniels. Amelia, what do we know about where the case stands right now and why we've sort of been in limbo this week?

So Manhattan prosecutors have been presenting the case to a grand jury since January, and they've heard from a number of witnesses. They've heard from Michael Cohen several times. Of course, he is one of the linchpins of what happened with Stormy Daniels, which for anyone who has not had a wonderful trip down memory lane to the 2016 election in the past few days, a reminder that, um,

Stormy Daniels had had an affair with Trump. Michael Cohen paid her off. Allegedly. Allegedly. Thank you, Galen. You know, we don't want to get sued here. I know. We don't want to get sued here. That would be terrible. Anyway, Michael Cohen paid off Stormy Daniels to keep her from talking about this alleged affair in the homestretch of the election. And then Trump reimbursed him and called it a legal expense for

When, in fact, that was a false recording of the expense. And this is a case that multiple prosecutors have looked into. Federal prosecutors have looked into it as well, as well as previous Manhattan prosecutors. So this is something that is like pretty well known, pretty well trodden ground.

But the case has been presented to the grand jury and the signal that we had that things were probably wrapping up and the grand jury was probably getting close to voting on the charges was that Trump himself was invited to testify earlier this month. He declined to testify, so he didn't appear before the grand jury.

But that's usually a sign that things are wrapping up, inviting the target to come and testify. And then, of course, there was the fact that Trump himself last weekend said that he was about to be arrested on Tuesday, which didn't happen. But that, I think, is the reason that people really started freaking out about this. And why were folks so sure that, you know, an indictment would actually result from prosecutors presenting the case to the grand jury? Yeah.

Well, I mean, I think it's just because the prosecutors have clearly been spending a lot of time on this. They've been putting a lot of focus and energy into the case. It sort of feels like why would the DA's office be...

putting so many of their resources into something where they didn't actually want to get an indictment. And grand juries usually vote to indict. You know, there's the old saying that a grand jury would indict a ham sandwich, which like, I don't know how a ham sandwich would do in this particular case if it had been the one to pay off Stormy Daniels. But it is not a stretch to think that if the Manhattan DA's office is spending this much time putting forward a case to a grand jury, that it would result in an indictment.

And it is the case that a grand jury only needs a majority vote, not a unanimous vote. So it's easier to get to yes. It's easier to get to yes. And it's just about like this is just about the whether to charge someone. So it's not saying he's guilty. It's just saying, OK, let's move forward to the next step if you can file charges against this person. So it's a pretty low bar. And when it comes to those potential charges, what is the legal theory that they have likely been presenting to the grand jury?

This is the interesting part because we just are not going to know until the charges get unsealed. There has been some speculation. The DA's office seems to be focusing on a New York law that prohibits the falsification of business records, which seems pretty straightforward. There was a record of this payoff and it was falsely recorded as a legal expense.

The problem is that that is a misdemeanor and it can only become a felony if the records are falsified in service of another crime. So the question is, if they want to charge Trump with a felony and not a misdemeanor, what is that other crime?

And it's possible it was a New York state election law. It is not clear what that law would be. And it's also possible that they might be saying that they were falsified in service of a federal campaign violation. But then there's a whole question about

whether New York prosecutors can even do that. So it's kind of potentially novel in a few different directions, assuming this is the direction that prosecutors are actually going to go in. And we don't know for sure at this point that they will. Yeah. So just for a little bit of context, the district attorney who's bringing this case is Alvin Bragg, who is the Manhattan district attorney. And so he obviously only has jurisdiction for state law. He's a state prosecutor, he's not a federal prosecutor. So there is this kind of interesting

crossover between, you know, well, if he tries to use a New York state election law, campaign finance law as the kind of underlying crime, like, does it apply because Trump was running for federal office, not for state office? And so, you know, there's kind of, there is a jumping over you have to do at some point that seems like it could be

you know, it could weaken the legal theory. But also maybe there's a lot we don't know, right, Amelia? It could be that there's some other crime that Alvin Bragg, the DA, has uncovered that and we're all just speculating here. Right, right. I mean, it could be that there's some other thing where there was this is like related to some other kind of fraud. And that's where he's going with it. But the election law piece does seem like if that's the avenue they're going down, I think it is safe to say at least that this is uncharted territory. And when you combine that with

the fact that we are also talking about uncharted territory with the first indictment of a former president, I think that does fairly raise the question of, is this the case you really want to go after Trump for, given the scope of his legal liability? Yeah, I mean, there's, again, we don't know what the potential charges are, but there are, as

as you've mentioned, several weaknesses in this case that also include potential weaknesses. We don't know yet. We really, and I, I really like, I understand the speculation. We all really want to know what's going to happen, but we genuinely don't know. We genuinely don't know. So far, you know, Trump's legal team has made it,

at least the argument in public, that this was not in fact a campaign expense, that this was just trying to make sure that Trump wasn't embarrassed in front of his family, that didn't actually have to do with the 2016 campaign, which would then mean that this, even if they could prove that this is falsifying a business expense,

it would still just be a misdemeanor. And that's a charge that you don't need a grand jury for. And also, I mean, the other thing to remember here that makes this case a little bit weird is that the star witness is Michael Cohen. And Michael Cohen is someone who has perjured himself. So he's really not going to be your ideal witness to hang a case on because he is someone where the defense can come in and say,

Like, this guy is a liar. Don't believe him. So then it will be up to the prosecutors to make the argument that while Michael Cohen has lied under oath in the past, he is not, in this case, lying. And that's not, I mean, that's not an insurmountable hurdle, but it does add another layer of potential difficulty. Yeah.

Right. So a couple of things will happen here if the sort of speculated charges do come down, which is one that Trump's legal team will just try to get this thrown out and say the actual felony part of this would refer to a federal crime and you don't have jurisdiction over federal crimes. So throw the case out. They were to actually get the case to go to trial. You know, they would they could make the argument that the second piece of this, that it was, you know, in service of

uh, an elections crime is false because it wasn't actually, didn't have to actually do with the campaign. You know, they're also going to have to, you know, find an impartial jury. Uh, we'll see. I don't know how that would happen. Where do you find those people in the city of New York? Who doesn't? Right. Yeah. Well, you know, in the polls, there's always that 1% who say they don't have an opinion. I always wonder if like,

English is those people's first language or if they're just messing with the pollster. Yeah. I think there is definitely a little strain of 1% to 2% of people who just kind of mindlessly click through an online poll or something like that or they're purposefully messing with things. So that is true from a polling perspective. I will say, though, I feel like they're probably – I mean, it'll be incredibly hard to find them, but I think there are probably people who are so politically apathetic

that they don't care or maybe they have conflicting feelings about Trump so they aren't necessarily biased one way or the other. But it is going to be very, very hard. Yeah, the standard isn't also to have no opinion about Trump. It'll be a question about whether you can render a fair judgment, which, yeah, I don't know. It's just an interesting question with someone who has the stature and political reputation of Trump. But we're nowhere near there.

Well, here's really getting into the politics now of this. There's an issue here because, of course, the response from Republicans, Trump himself, has been that this is politically motivated.

And when you look at this case and you see, OK, if the expected legal theory is actually what they try to pursue, it's never been done before. You know, a former president has never been indicted. It's going to be hard. Some of the other cases seem like it would be easier to make the case that it's not politically motivated.

This case, it might seem difficult because past prosecutors have looked at this, decided not to bring it up. The legal theory seems complicated and like questionable. So like for folks who say this seems politically motivated, like what's the answer?

Well, I mean, I think this is always a challenge when you're talking about elected prosecutors, because they are political actors in a way that, say, federal prosecutors are not. And so this is a choice that we've made in our legal system to have someone like the Manhattan DA have a political affiliation and...

You know, make choices about the cases to pursue based on that affiliation. I mean, we've had this whole movement of progressive prosecutors who have run on the platform of I am not going to charge certain crimes the way my predecessors did, or I will go after certain crimes in a way that my predecessors didn't.

So I think there is always an element of politics in what someone like the New York City or the Manhattan DA is going to do. And people probably just don't usually think about that because we're used to thinking about prosecutors as being this kind of neutral figures who just...

go for the cases where they're right. You know, it's also the case that prosecutors make decisions based on the cases they think they can win. And so, you know, if you went out and asked people on the street whether they thought the prosecutor should pursue charges in a particular case, the way that they think about it is going to be different than the strategic thinking of a prosecutor who wants to be really sure that when they get to trial, they are going to come out with the verdict that they want.

That being said, I do think this is one where it's going to be a little bit easier for Trump and Republicans to make the argument that,

there are political motivations here. I mean, I think people are already, a lot of people are already there. I found a Reuters Ipsos poll that was conducted earlier this week that found that most Americans have heard about the investigation. It's 88% and 54%, say, the indictment of Donald Trump on criminal charges is politically motivated. So, you know, that's slightly more than half. A lot of people are already there. And I think it's just about, you know, if they're going to pursue this case,

They're going to have to make a really robust case to the American people that this is a situation where it was justified to try to put a former president on trial. Yeah. Nathaniel, you have been looking at the polling on how Americans are thinking about the different investigations that touch former President Trump.

Do we have any information about how this has evolved in the time that this has become more prominent in the news? Because I've seen conflicted polling, like a majority in that poll say that it's politically motivated. But I've also seen other polls that show like, you know, a plurality saying that he should be charged if he did actually pay hush money. So I don't it's hard for me to know what to think.

I mean, in the same poll, it's like 85% of all Americans say that if Donald Trump broke the law, he should stand trial. So clearly the way this question is worded matters a lot. But you should elaborate, Nathaniel. Yeah, no, question wording matters a lot. Obviously, we see this with polls. Yeah, exactly. We see this with polls on all sorts of subjects.

But, I mean, I don't think these ideas are necessarily contradictory, right? You can think that it's politically motivated but still think that he can be charged or convicted. But, yeah, Galen, I think the poll that you were referring to is from YouGov and The Economist. And that found that Americans think Trump should face criminal charges for the hush money payments of 46% to 34%.

So, yeah, so I think a lot of this is going to come down along kind of normal Trump approval, disapproval lines. In terms of an evolution –

You have seen that at least recently you've seen more Republicans kind of responding to like I think I forget who conducted this poll. I'm sorry to the pollster for not citing you. But there was a place that found that a majority of Republicans thought that doing what Trump did without naming Trump was illegal, that like, you know, using the money to cover this up.

was illegal. But but back in 2018, that number was quite low. And that kind of seems to reflect the fact that like in 2018, when like this was like being talked about a lot, people were treated into their partisan corners. Republicans knew this was a question about Trump, even if they weren't specifically asking about Trump. And so they said, no, that's perfectly fine. But now, you know, kind of this just kind of exploded onto the scene. Right. I think it was Saturday that Trump claimed that he was going to be arrested. And so the

polling that we have, I think most of the polling that we have is from before that, or maybe it just hasn't penetrated, although I guess the Reuters episodes poll, people have been hearing about it. But I wouldn't be surprised if you see the number of Republicans who think that this is, you know, a witch hunt or, you know, think that this specific crime is not like actionable drop back down to where it was in 2018 when this was more in the in the

kind of atmosphere. Yeah, Nathaniel, I think you're talking about actually also a YouGov economist poll that showed last week 73% of Republicans said that exchanging money for silence on an issue that could affect the election is a crime. Back in August of 2018, that number was 37%. So it's like doubled basically since August 2018. However, this week, the poll went back out in the field and

And that number fell from the 73% of Republicans who said that it's a crime last week to now 60% who say it's a crime this week. So that's just putting some specific numbers to what you suggested seems to be the case. And just to give the overall picture, 70% of Americans, when you put away the crosstabs for partisanship, 70% of Americans say that paying hush money on an issue that could affect an election is a crime.

I want to take a step back for a second. We have suggested that it is significant that a former president could be charged for a crime, could be indicted.

How significant? Like, what does that mean? Because it's never happened before. But like, okay, we're seven years into this perma-Trump news cycle and a lot of things have happened that didn't happen in American history during that time. So, okay, yes, it's historic. But also, what are the actual implications? I mean...

Well, I am an elections analyst. So obviously, I think it would affect the 2024 election. Trump is an active candidate for president after all. And it seems, you know, this is going to be a thing, regardless of whether it actually hurts or helps him. Obviously, like, I think this is a different story than if you had had Barack Obama, who obviously is is ineligible to run again for president. If he had been indicted, that would be obviously like,

you know, momentous and there would be a lot of attention paid to it, but it would be kind of siloed off from the current electoral path slash future that we're on. Right. And that's not the case here, which makes it particularly explosive potentially. Just to ask a specific question about elections, some of the potential charges facing Trump, there's been the suggestion that if actually convicted,

the person convicted of those crimes would not actually be able to hold public office, federal office at least. Is that your understanding as well? Are those provisions debatable? And also, I think we should ask, just because I think the public is curious, how does being under investigation or actually even being indicted affect your ability to run for office?

So, I mean, I can take the piece about being barred from holding office in the future. So what we're talking about there are different investigations into Trump that are happening at the federal level under the auspices of the special counsel investigation.

It was kicked off last November, continuing some investigations that had been happening under DOJ, and then a special counsel was appointed once Trump announced that he was running for reelection to handle those. And so a couple of those issues

There is either within the law or within the Constitution a provision that suggests that it would bar, if convicted, it would bar the person from holding office again. In one of those cases, it is not clear if that part of the statute is constitutional. And in the other case...

A two thirds vote of Congress could overrule it. Seems pretty unlikely in the current Congress, but you know, and that case is that would have to do with if Trump were charged and convicted of insurrection, which would have to do with his conduct with regard to the January 6th.

riot and that would be a pretty difficult case to get him convicted on. So I think while there is the possibility that he could be barred from holding federal office in the future, I would not say that is likely.

Yeah. And then just to address another question that I get a lot, people often ask, like, can Trump still run for president from jail? Assuming it gets to jail, which also seems pretty unlikely to me. But the answer is yes. We have had presidential candidates run from jail before. Eugene V. Debs, the socialist candidate for president in 1920. Joe Exotic is running from jail right now. I was going to say this very minute. I know. Never forget the Tiger King, Nathaniel.

That's true. Eugene V. Debs and the Tiger King. Name a more iconic duo. But no, but obviously the logistics of it would be challenging, right? Trump wouldn't be able to hold rallies, you know, and so it would be a different type of campaign from what we have seen previously, to put it mildly. But legally, there is no restriction on it.

But Galen, to kind of go to the broader question of how this will matter politically, I think that's obviously a big question that a lot of people, including me, have.

I start out from a place of great uncertainty. I think, you know, that won't shock anybody who is a listener of the FiveThirtyEight Politics podcast because we have never had an ex-president, an active presidential candidate indicted before. We just don't have a good precedent for what's going to happen. You can make the argument that it would hurt him. You can make the argument that it would help him. You can make the argument that it would not matter.

Well, I guess those are all the arguments then. So let me just say this then, Nathaniel, which is that I think the most common take that I've heard is that it helps him in the primary and hurts him in the general, the idea being that Nathaniel

viewing Trump as a victim and the target of a politically motivated judicial system. Like, I'm not saying that that's the case, but that that would be the view of Republican primary voters would create some sort of rally effect for Trump. But then in actual general, when you have independents voting and people who are just less independent

motivated bipartisan instincts and loyalties to Trump that actually having somebody who is potentially under investigation for in four different cases is not actually attractive like even if you might be inclined to be supportive of some of Trump's policies so if I made you choose a take like would you accept that conventional wisdom or would you more try to poke holes in it

I mean, I think I expect skepticism of it. I think that the arguments for that are make sense. I think certainly like in the primary, I doubt that it will hurt him. And in the general, I doubt that it will help him. So in the sense that that's the opposite, the scenario you lined out is the opposite of that. It makes sense. But I would personally tend more toward the it won't matter, I think, in both scenarios.

Like, OK, so the argument that it would help Trump in the primary right is that like it's not dissimilar to like a rally around the flag effect where I think it's less that like people would like be like, you know, Trump needs our support right now. But I think it would be more that his opponents would be put in a difficult position.

And if they felt that they needed to defend him or at least not attack him and kind of go silent on it, that kind of helps him implicitly because during a rally around the flag effect, a lot of what happens is that the political opposition goes silent because it's kind of uncouth to attack the president during a war or something like that.

And I think that you could see that kind of thing happening here. You also have the fact that like Republicans like already overwhelmingly believe that that this is a politically motivated, that this is a witch hunt. I think in the Reuters episode poll that Amelia cited earlier, it's something like 80 percent. Yeah, 80 percent of Republicans think that the charges are politically motivated, like

you know, I could see it not really like moving the dial. More generally, like I think people have made up their minds on Trump. You also have other polls like from YouGov that found that most Americans already think that Donald Trump committed a crime. And so like, I think people have baked in this idea that

Trump has committed a crime if you are, you know, if you are a Democrat or an independent, that this is politically motivated witch hunt if you're a Republican. And so it probably doesn't change your mind one way or the other. For the general election, though, you had you do have the argument that like we have studied empirically that scandals hurt candidates. The issue is that Trump is already kind of, you know, if if he had been running in our in for Senate or something like that, he would get the stamp scandal tag in our database. He would have done that even in 2016. Yeah.

Um, so like, it's not clear, like what additional impact an indictment has. Uh, so again, in kind of the same way, like, you know, does this hurt, you know, like if he isn't into, well, I guess at this point, if he's not indicted after all this reporting, that would almost read like an exoneration. Um, but like, if this hadn't happened, you know,

then i'm not sure it would be any different from him getting indicted here i think another wild card though and this is something that um was raised in the slack chat that we had on the site the other day is that like this is just one case and it's by this democratic prosecutor it's easy as amelia said to paint it as politically motivated if trump gets indicted you know two three four times

like that starts to weigh on you. And like, I think that is like, it's already unprecedented for an ex president to be indicted. It'd be super duper unprecedented for an ex president to be indicted four times. And like, that's the kind of thing that like, I think even for a lot, not all, but a lot of current Trump supporters looking at that, seeing how weighed down he would be by those, you know, those trials and, and allegations like that,

You could see some people being like this isn't worth the drama and we should move on and and I'll let you see it You also see in a lot of polls that Trump supporters don't mind Ron DeSantis like Trump has been attacking DeSantis But like generally speaking they're both popular with you know with most Republicans and so it wouldn't be a huge stretch for them to be like Trump I love you. You have you know, you are a great president, but at this point we need to go with the next guy in the line. I

Yeah, I agree with Nathaniel that I think a lot depends on what happens next, including how strong this case turns out to be, which, you know, again, like we don't know what he would be charged for. Thinking about the impact, it is kind of...

kind of a stress test for our justice system as well. I mean, we are not a country that has seen a lot of high profile trials of politicians, period. You know, we've been talking about comparisons for this, obviously not even former presidents, but governors, members of Congress, there just aren't that many cases to point to. And, you know,

You can think about this a couple different ways. You know, you can think about it as we are... We do live in a country where we believe that no one is above the law and that if a former president breaks the law, that person should be held accountable, the same as everyone else. But also...

In other countries and in other contexts, there have been concerns about the legal system being used to go after people politically and that unfair prosecutions for political reasons are a thing that have happened in other places at other times. And so, you know, I think that concern, while obviously your own political bent at this point is probably going to determine a lot about how you see this particular case happening.

More broadly, we are seeing a test of our justice system to fairly try someone who is

most people do think has probably committed illegal acts, but is also one of the most prominent, well-known controversial people in the country and an incredibly powerful political symbol. And so if that person goes on trial, I think it will have pretty serious ramifications potentially for the way that Americans see the justice system as a whole. And that's a big deal.

Yeah. All right. Well, we've talked mostly about this Manhattan DA's case so far. So let's move on and talk about some of the other circumstances in which Trump faces legal jeopardy.

Okay, let's move from Manhattan down to Fulton County, Georgia, where prosecutor Fannie Willis is investigating potential meddling into the 2020 election. Folks have almost certainly heard of this case before. You know, it involves a phone call from former President Trump or then President Trump to Secretary of State Brad Raffensperger at the time, imploring him to find a number of votes that could potentially flip the verdict in Georgia.

Amelia, where does the case stand there? And what specific legal jeopardies could Trump be facing? So we still don't know what charges, if any, will come out of this case. The last big update happened in February when Fulton County Superior Judge Robert McBurney ordered the partial release of a special grand jury report in the case.

And the grand jury had been convened basically to assist Willis. So they were not there to make charging decisions. It will be Willis and her team that make the charging decisions with a different grand jury. But this grand jury was sort of there to kind of put together a report based on the testimony they heard about what they would recommend. The report revealed that they had recommended some indictments, but not who.

who they recommended be indicted or for what. And the foreperson of the jury went out and made some comments to the media that famously, yes, very famously, went out and said things like, you're not going to be shocked. It's not rocket science, which is,

Deeply unhelpful to me because I don't think I could be shocked by anything that happens in this case. I don't know. I'm curious what people would be shocked by. I don't know what she was thinking there. But now there's been some additional reporting that Willis and her team are considering racketeering and conspiracy charges.

for people who were involved in this investigation. The grand jury report also said that they think at least one person lied under oath, so potentially charges for that.

Willis is well known in legal circles for aggressively pursuing racketeering cases. So it's very possible that that is an avenue she could go down. But the big unanswered question there is even if we do see charges along those lines, will Trump be one of the people who is charged or will we be talking about lower level Trump allies like Rudy Giuliani and John Eastman? Because basically it's sort of like, you know, how much of a kingpin, uh,

do the prosecutors think Trump was? How central was he to this effort to meddle with Biden's victory in Georgia? And we just don't know at this point what they think they have the evidence to pursue charges for.

Okay.

So, well, and they are connected also in that Trump was trying to I mean, part of the allegations here is that they were trying to convene an alternate set of electors from Georgia. So it is I mean, it is all kind of connected.

Although, obviously, we're talking about violations of state law versus federal law. Right. So as far as the Department of Justice is concerned in terms of pursuing an investigation of January 6th, a lot of people have been involved. A lot of people have been charged. A lot of people have been convicted. People have ended up in jail, had to pay fines, et cetera, et cetera. But where does this all stand when it comes to Trump himself? Yeah.

The big question is what kinds of ramifications, if any, will Trump face legal ramifications? And people probably remember that there was a House committee investigating all of this for 18 months that concluded its investigation late last year. And they

had they issued a report that had four criminal referrals for Trump, which is basically them saying to the Justice Department, we think you should charge Trump on these four counts. The Justice Department does not have to listen to Congress. Congress does not have the power to pursue criminal charges. So this is more the committee having done this work saying this is our spin on it. And also, we're going to give you all this evidence that we think supports these charges.

Department of Justice had separately been investigating, obviously, the whole scope of the January 6th insurrection, as you mentioned, Galen, but also Trump's role in it. And that was happening before Jack Smith, the special counsel, was appointed. But he was brought on board because basically they wanted an additional layer of insulation there.

once Trump became an official presidential nominee. Um, and so now this probe is in his hands along with another one that we can talk about. It appears he's moving quickly. Um, he is, he's been issuing subpoenas to Mike Pence, um, Jared Kushner, Ivanka Trump. Um, but you know,

Folks who remember Galen's and my fun chats about the last special counsel investigation will remember for good or bad that a lot of this is just us saying we have no idea what they're doing over there. It's all secret. You mentioned earlier that you expect it's unlikely that Trump would be charged for insurrection. Why is it unlikely? And what are potential likelier charges?

There are a few potential charges the congressional committee pointed to and that sort of legal experts have also weighed in on whether Trump could be charged for. One is obstruction of an official proceeding. This is something that has been used to charge a lot of the January 6th defendants and

And it's currently that question about whether the charge was applied correctly is pending at the appellate level. There's also a potential charge of conspiracy to defraud the United States, conspiracy to make a false statement, and then insurrection. The insurrection piece is that

No one else has been charged with insurrection. So that's a sign that prosecutors generally think this is a difficult case to make. And generally, I mean, the committee thinks that Trump's actions meet this standard. But I think in general, the Department of Justice is going to be pretty careful about what they charge Trump with, if anything. And they're

going to, you know, really want to be able to stick the landing. And I think insurrection, because it carries the potential of not being able to hold federal office in the future, is one that is, it's a charge that's particularly risky. And obviously, you know, the Department of Justice is not limited by what Congress suggested that the Congressional House Committee, I should be clear, this is all Democrats, Republicans, Republicans,

Plus Adam Kinzinger and Liz Cheney. Right, right. Yes, yes. Most Republicans. Not on board. Yeah, but like the Department of Justice can do what they want based on the evidence. So just because this House committee is saying this is what we do and some of us are lawyers or this is what we think you should do and some of us are lawyers, go for it. That's not necessarily what we're going to see. All right, Nathaniel, this is a whole different can of worms compared to alleged hush money payments to a porn star. Yeah.

Do Americans view it as such? Like, do they do they view the implications, the severity of Trump's involvement? You know, obviously, we don't know if there will be any charges, but Americans already know a lot about what Trump did on January 6th and have, you know, plenty of them have probably heard the phone call that he made to Brad Raffensperger. So what do Americans think?

Yeah, I mean, electorally or politically, it may not be that different. Seriously? Yeah.

I mean, well, it's all it all comes down to how you feel about Trump. Right. So we've got a Marist College PBS poll with NPR from last summer that said this was like kind of the height of the January 6th investigation. And Americans said 50 percent to 45 percent that Trump should be charged with crimes in relation to that.

And then you have a Quinnipiac poll from August, shortly after the Mar-a-Lago raid by the FBI. And they asked whether Americans thought that Trump should be prosecuted on the handling of classified documents.

Americans said 50% to 41% that yes, he should. So, you know, you're seeing a lot of these same numbers that we've saw for four years when he was in office about like his approval rating is like around 40 and his disapproval is like around like 50, 55.

When you compare that to the one that we cited earlier, the YouGov Economist poll about this, the hush money payments, there were – it's kind of a similar proportion. It was 46% to 34%, but there were more undecideds. It's hard to know whether that is just kind of the methodology of the poll, right? Some pollsters will push undecideds more than others or whether that's because –

They're not as sure about this, the Stormy Daniels case. But I think, you know, it's basically Americans are going to come down as, you know, if they are predisposed to like Donald Trump, they are going to say, no, don't don't charge him rather. And if they're predisposed to dislike him, then they'll say, yeah, go for it.

Yeah, I mean, I guess I sort of understand in a way how people's minds could be overloaded by all of this and it could just become a do I like Trump, do I not like Trump equation. You know, I think I hadn't been following the details of a lot of this stuff until I was forced to this week because we were going to talk about it. Is that sort of what's going on? Because it feels like each one of these questions

If I learned about it in my high school history class would be significant and would be, there would be like a chapter on it or whatever. And maybe 20 years from now, that will be the case. But yeah,

Right. Exactly. Taking, taking yourself out of the context of the current political environment, I think changes everything, right? Like I think maybe you would see, you know, differences there when people, you know, if, if people were looking back on this and they knew what happened and, you know, like I'm sure Trump will still be a polarizing figure in, in 20 years, but, um,

Um, you know, hindsight, you know, I mean, look at George W. Bush, opinions of him have, have changed significantly. And that was about 20 years ago. And he was very polarizing at the time back when we thought that's what polarization was. But, uh, yeah, I, I think that, uh,

That that is like the fact that he is an active presidential candidate. Again, like there are people who like are currently like have like Trump 2024 signs on their lawn. Like that is so important. And like you, you cannot divorce this from the politics and from your kind of partisan affiliation. Again, I think.

I think the federal investigations really matter because even though if Trump is charged with a federal crime, he will argue it is politically motivated. There has been a special counsel appointed. These are not prosecutors who are elected by voters. And I think in general,

federal crimes are considered to be more serious by some people. You know, like federal and state crimes are serious, don't violate either of them. But being put on trial at a federal level for some of the things that Trump could be charged with

I think there is a genuinely open question about how people would respond if Trump were in a courtroom and there was a criminal proceeding happening. I think that would be really different for people to absorb than something like the January 6th hearings, which at this point,

We're all really used to congressional hearings about Trump. I mean, we went through two impeachments and there was the whole January 6th committee. And it's just, you know, I think like there is very much a sense of those being a political performance and they are a political performance. And we never got to a point with the Mueller investigation while Trump was president where

where this got tested out. So I think it's very much an open question. But again, you know, it's a big political risk for the Department of Justice to take because going after when you are like, ultimately, the person who is responsible for that charging decision is the person Merrick Garland, who was appointed by President Joe Biden,

And President Joe Biden is probably going to be running for president again. So it's all wrapped up in politics. And I think it will, it is, it is, I genuinely do not know how much prosecutors would be able to make that proceeding seem non-political to the point where it might change people's minds. I think it's possible in a way that something like the impeachment didn't.

But we just don't know. Yeah. To your point, Amelia, the one poll that I've seen that kind of goes against what I said about things kind of breaking down along Trump approved disapprove lines is that Reuters Ipsos poll about whether things are politically motivated. You would maybe expect that, you know, people would say roughly 50 40 that it is not.

But in fact, a majority of Americans think that it is. And I would be curious to see those numbers for like a potential January 6th or classified documents, you know, indictment. I would expect that they would probably be lower because of that. Like, you know, the fact that it's like a...

the special counsel, but probably not a ton, right? Like, I think that really what it comes down to is that we're talking about things at the margin, right? Like, I do think that a majority of people will, their opinion of this, of all these cases, will be formed by their partisan affiliation. There are probably, there are definitely some people who are kind of

willing to look at it on a case by case basis. And, you know, and maybe that's like 10% of people in the middle or something like that. But it's like once with like polls and stuff like it's hard to gain that level of precision. So let's let's say for the sake of argument that there are 4% of people out there who like genuinely would support, you know, Trump's, you know, like being convicted on

you know for january 6th and think that that was completely like the correct use of the law whereas the manhattan stormy daniels thing was is overreaching by democrats or whatever

Like you can't – a poll, it won't be able to tell us that that 4% exists because that's going to be within like a margin of error. But a 4% swing in – I don't think – well, a 4% swing in a general election would obviously be huge because elections are extremely tight these days. I don't think there's much of anything that can swing an election by 4 percentage points, at least not a single factor given how polarized things are. But let's say 1%.

in an electoral context. It can be significant, but it is really hard to measure. So we've mentioned it a couple times, but before we begin to wrap up here, Amelia, where do things stand in the Department of Justice's investigation of Trump's handling of classified documents?

Yeah, so this is obviously what we've been talking about with the FBI raid on Mar-a-Lago last summer. They raided Trump's home in Florida, recovered a number of classified documents. Prosecutors then argued in court filings that Trump's lawyers had tried to conceal documents from investigators in the lead up.

This part of the investigation is still very much ongoing. Um, special counsel, Jack Smith subpoenaed a bunch of Mar-a-Lago staff to testify in front of the grand jury. So, you know, this is something where, and, and they just, this is actually big news. Um,

a Trump lawyer is going to be compelled to testify over claims of attorney-client privilege. This just was announced by an appeals court, so that's a fairly big deal. And this is one of the ones where a charge Trump could face is concealment or destruction of official documents, and that

does include a ban on holding federal office as part of the statute, but legal experts are not sure if that's constitutional. So it's a pretty high stakes charge, but it's not sure. Like even if Trump were charged and convicted, I'm not sure if that part of it would end up sticking. And the hairy part of Trump's lawyer being compelled to testify, right, is that

If Trump told his lawyer to conceal those documents or to lie to the Department of Justice or whatever, I guess the lawyer would either have to plead the fifth or be upfront about exactly what deliberations took place over how to handle those documents that the FBI eventually seized. Yeah, I mean, we'll have to see how it plays out. But, you know, Smith's team seems to think that Trump was very active in all of this and they want to talk to his lawyers about it. I think this one...

is interesting politically because Nathaniel noted this in our chat earlier this week. You know, a raid actually happened in this. Like, I think we've gotten the closest to something like a criminal proceeding last summer when the FBI went into Mar-a-Lago and came out with a bunch of classified documents.

Trump's favorability ratings barely budged. And then there's the fact that there is another special counsel investigation into Biden's handling of classified documents from when he was vice president. We've talked about this on the site, probably on the podcast too, that like there are some pretty significant differences, at least that we know of right now between these two cases, including how cooperative Trump and Biden were in

identifying and returning the classified documents. And that is legally really important. So it is totally plausible that these investigations will end up having pretty different conclusions. But in terms of political equivalency, Trump can point and say, hey, look, the other guy's been accused of doing this too. Like,

not such a big deal. So I think, you know, this is this is an area where the Department of Justice seems to be going pretty hard against Trump. But I'm not sure how much of an impact this charge in this side of the federal investigation would make versus the January 6 side. All right. Well, we've covered a lot of ground.

We've come to some probably familiar conclusions. One, that Americans are split over how they think about Trump. There is a majority or at least a plurality that is skeptical or dissatisfied. But more immediately in a Republican primary, Trump's still got a lot of support. But also, most importantly, things are uncertain. We don't know what will happen next. We don't know if charges will actually come down. We don't know how they will affect public opinion.

So listeners, I guess that means you just have to keep listening. I know. You're stuck with us. Sorry, guys. Guys, are we going to get a successor to Muller Talk? This is like my hair. Like several hairs went gray as you said that, Nathaniel.

Well, we were trying to come up with a name before we pressed record on the podcast this morning, and we weren't really able to. So listeners, if you have any thoughts, please weigh in as we follow these four different cases. I think one of them was indictment hour. So I know you guys can do better than that. You sent us better ideas. Charge us, chatter. Save us. Save us from ourselves, listeners.

Well, with that, thank you, Amelia and Nathaniel. Thanks, Galen. Thanks, Galen. My name is Galen Druk. Tony Chow is in the control room and on video editing. 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 review in the Apple Podcast Store or wherever you listen to your podcasts, or you can tell someone about the show. Thanks for listening, and we will see you soon. ♪

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