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phrma.org/340B to learn

0:23

more. Donald

0:32

Trump is a convicted felon. It

0:35

took a jury of 12 just two days

0:37

to find the former president guilty on all

0:39

34 counts of falsifying business

0:41

records, brought against him by

0:44

the Manhattan district attorney, Alvin

0:46

Bragg. To help us understand

0:48

the verdict, I convened

0:50

Kyle Cheney, senior legal affairs

0:52

reporter and Ankush Karduri, senior

0:54

staff writer and columnist for

0:56

Politico magazine, who along

0:58

with the entire Politico legal affairs team

1:00

have provided superlative coverage of this trial

1:03

from the very beginning. I'm

1:05

Ryan Lizzo and this is Playbook Deep

1:08

Dive. All

1:20

right, so Kyle, you were inside

1:22

the courtroom today. Let's

1:25

start with you and just

1:28

set the scene for us as

1:30

the jury entered the room to

1:33

deliver this verdict. The moment really

1:35

started just before they came in because

1:37

everyone was packing up to go home for the day. We

1:40

were all convinced that, I mean, there

1:42

had been no word from the jury at all and the

1:45

judge, Juan Marchand, even said, we're

1:47

going home. We're going to send the jury home at 430B. They're

1:50

not going to have a decision today. He left to go

1:52

check on them and then he was gone

1:54

for a while and we

1:57

were all, what's taken so long? were

2:00

not going home today, there's a verdict. So

2:02

it was this kind of whiplash moment that

2:05

I think added to the suspense and the

2:07

drama of it, which was already high, of

2:09

course. But then

2:11

of course, you had the jury come out

2:13

and they confirmed they had reached their verdict.

2:15

Got it. Explain to people your vantage point

2:18

watching this unfold. Sure. So

2:21

I was in the overflow room of

2:23

the courthouse, which is where the majority

2:25

of the press corps is situated. There

2:28

are some people in the courtroom itself. But

2:30

in fact, I actually prefer the overflow room because you

2:33

have a screen where you can see Donald Trump's

2:35

face. You can't see the jurors. You can't see the

2:37

jury by design, but you can

2:39

see Donald Trump. And so the biggest thing is

2:41

what's his reaction to this going to be. And

2:46

so you don't again, you're not seeing

2:48

the jury, but you're hearing the judge address them and

2:50

say you've reached a verdict. They confirm that. And

2:53

then they just went through very business-like, orderly,

2:55

one by one, count one, guilty, count two,

2:57

guilty. And of course, the first one is

3:00

the moment. It doesn't really almost doesn't

3:02

matter what happened to the other 33 counts,

3:04

though they all turned out to be guilty.

3:06

But you get the first one, you say,

3:08

you're the convicted felon now. And that

3:12

is sort of the history

3:14

of that moment and the power of that moment

3:17

was immediate. And of course, you could feel it

3:19

in the courthouse because it was so tense. Wow.

3:22

The advantage of that room you were

3:24

in is that you have a line

3:27

onto Trump's reaction. What

3:29

was your what was your memory of of

3:32

how he reacted and anything else you saw

3:34

in the first seconds

3:36

after they said guilty? You know,

3:38

similar to the whiplash that we felt it

3:40

was actually what even added to that was

3:42

that Trump moments before the judge came back

3:45

into the verdict, he seemed in the best

3:47

spirits. We've seen him in all the entire

3:49

trial. He was laughing, talking, you know, very

3:52

animatedly with his lawyers, but seemed happy. And

3:54

I think because in that moment,

3:56

when they thought the jury was going home

3:58

for the day, he's starting to. maybe get

4:00

a little hope that they're not on

4:02

the same page. And

4:05

so the abrupt change

4:07

for him was also apparent

4:09

when he suddenly went

4:12

quiet and was not

4:15

having this happy animated conversation anymore and

4:17

he was realizing what was coming. And

4:21

then immediately after the first, he didn't have a

4:24

huge reaction. There was sort

4:26

of I think a bit of a wince. He

4:28

was staring intently at the jury as this

4:31

verdict was being read. So that

4:34

was the most notable thing was he just locked

4:36

on. And then after all 34

4:38

counts were read, he kind of looked straight ahead

4:42

and seemed to be sort of lost in a

4:44

moment of thought, maybe contemplating what had

4:46

just happened. And then the

4:48

judge asked each individual juror to confirm that they

4:50

agreed with the verdict. And so he looked back

4:52

over at them and watched each one of them

4:54

and they all said yes, we agree with that.

4:56

That's the correct verdict. So that was

4:58

kind of a powerful moment

5:01

too. Fascinating.

5:03

All right. Alakrish, let's talk about the

5:05

case itself. I

5:08

like having the two of you on because we're

5:10

probably going to be as politics free

5:13

as a conversation like this can

5:15

be because I personally just don't think

5:17

we know the political fallout here. So

5:19

I want to start with

5:22

this question. How did the prosecution win

5:24

this case? Gosh,

5:27

well, I mean, look, it looks like they

5:31

managed to win this case by persuading jurors

5:33

that Michael Cohen was credible enough on

5:36

the key elements of his testimony, including

5:39

descriptions of some key conversations that he had with

5:41

Trump for which there were no other witnesses. And

5:45

also by shoring up his testimony

5:47

by sort of beating home this

5:49

theme that he was being corroborated

5:51

by documents and other

5:54

witnesses, text messages,

5:58

financial records and things like that. And

6:00

that was mostly true. It wasn't entirely true

6:02

that his testimony could be fully corroborated by

6:05

other evidence in the case, but

6:07

a lot of it could. And I

6:10

think that that strategy looks like it paid off.

6:12

I don't think it's actually much of

6:14

a surprise. Well, it is a

6:16

surprise anytime you get a jury note. But

6:19

the fact that they asked about like circumstantial

6:21

evidence in particular, I thought was a good

6:24

sign for the prosecution because that kind of

6:26

was a key component of

6:28

their case, which is presenting this as

6:30

a story that just

6:34

made logical sense and logically led to

6:36

a conviction. I think that they had

6:38

a pretty fulsome and consistent narrative that

6:40

they sort of unspooled over the course

6:43

of the trial. It

6:45

had its gaps and weaknesses in my estimation, but

6:48

it does appear to be the case that the jurors

6:50

sort of accepted it. Kyle,

6:54

anything to add to that? Yeah,

6:58

I think in

7:01

addition, I think in the closing argument, they

7:04

did a good job of, yes, shoring

7:06

up Cohen's credibility, but also talking about

7:09

how it was kind of in

7:11

a weird way beside the point that there was so

7:13

much corroboration. There was so much corroborative evidence and documents

7:15

that they should focus on. And then as Ankish

7:18

pointed out, the inferences they could draw even just

7:20

from the stuff that was independent of Cohen that

7:25

they could reach a conviction and they could reach a

7:27

guilty verdict without needing

7:29

too much of Cohen. And

7:32

I thought whether you buy that or not, because

7:34

I actually think there were some aspects of the

7:36

case that only Cohen could speak to, it

7:40

was persuasive in the closing argument. And I think it

7:42

may have been effective with the jury. This

7:45

speaks to something to what both of

7:47

you just said. There was this moment

7:49

where the jurors asked Judge Mershan to

7:52

repeat his reign analogy. And

7:54

in hindsight,

7:57

these are things that are easier to understand.

8:00

hindsight, that seemed to

8:02

be a good clue

8:04

about where this was going. Either

8:07

of you want to explain what I'm talking

8:09

about and its significance in hindsight? Well,

8:13

I mean, the judge offered, I don't remember the

8:15

specifics, there are a variety of these very common

8:17

metaphors that judges use to

8:19

explain circumstantial evidence and inferences. Rain

8:24

is one. I don't know exactly how

8:26

to formulate it. I think it was basically like

8:28

if you wake up and you don't see rain

8:30

but you see people with umbrellas and it's wet

8:32

outside and they're wearing rain

8:34

gear, a fair

8:36

inference is that it rained overnight. Yeah, or like

8:38

you wake up and you see snow on the ground,

8:41

a fair inference is that it snowed overnight. There

8:43

are like a bunch of these. When

8:46

he started talking about circumstantial evidence, I looked to whoever

8:48

was sitting next to me and I said, oh, they're

8:50

going to do the snow analogy because I've heard you.

8:52

So this is common, okay. Yeah, it is very common.

8:56

So was it a good sign that the jury asked for

8:58

that to be repeated? So

9:04

this is a sign of what? That they

9:07

were trying to make those

9:09

inferences with the evidence that

9:11

didn't require the Michael Cohen

9:13

testimony? I mean, that's

9:15

what I drew from and look, we don't know how many

9:17

people have had the question, right? For all we know, it

9:20

was one juror who had the question and the

9:22

other juror who had the judge in the hopes that...

9:25

You don't have to be unanimous on the question that goes into the

9:27

judge. Correct. Correct.

9:30

So, but yeah, I did think it was a good

9:32

sign for them. Obviously in hindsight, it's easy

9:34

to say that. So I don't

9:36

really want to oversell it, but it did seem to

9:39

be like a positive indicator. Well, but the point you

9:41

make, Ankush, is interesting too because I think there

9:43

was so much psychoanalysis of the jurors and

9:45

every little, every word of the question is

9:47

what does this mean? And you saw a

9:49

lot of the pro-Trump people saying, oh, that

9:51

question is good for Trump because it means

9:54

someone is confused about the

9:56

instructions or maybe not buying that

9:58

they can make these inferences. So therefore,

10:00

the other jurors said, hey, let's give the instruction

10:02

again to try to convince this person that they

10:04

can. Yeah, it's a holdout. And

10:07

so, you know, in hindsight,

10:09

I think that analysis is correct. But in the moment,

10:12

we're saying is that because someone's saying they can't make

10:14

the inference and therefore is holding out or what? Maybe

10:16

that was true. Maybe there were a couple jurors who

10:18

said, I'm a little uncomfortable about that. And they said,

10:20

we'll show you. We'll read the instruction again, and you'll

10:22

see that you can do it. All

10:25

right, August, this is a subject that's near and dear

10:28

to your heart, I believe. The

10:31

flip side is, how did the defense blow this?

10:35

All right. I

10:38

mean, I think that, again, like

10:40

hindsight is 20-20. So I don't want

10:42

to oversell this because lawyers, this is

10:44

actually like a very similar to like

10:47

the end of a political campaign, right, where everybody

10:49

sort of retroactively decides like that the winner was

10:52

a genius the whole time, the loser was destined

10:54

to lose the whole time. Totally.

10:57

Same thing kind of happens in a trial, too. I

10:59

don't want to oversell it, but I do think like

11:01

even in the moment as the pretrial proceedings and the

11:03

trial proceedings unfolded, there were just some

11:06

very conspicuous missteps.

11:09

In the run up to the trial, I mean, they

11:12

just could not stop talking in their court

11:14

filings about how they thought that Donald Trump

11:16

was being persecuted by the Democrats and the

11:18

Biden administration, this, that, and the other. That

11:21

was for public consumption, obviously. But

11:24

it went to the judge, too, and it

11:26

made all of their briefs weaker and

11:28

easier to kind of set to the side.

11:31

And also,

11:34

this was a complicated case with lots of intricate

11:37

sort of pieces that provided

11:41

some novel legal issues. I never felt

11:43

like the briefs actually did

11:46

a particularly effective job, the defense's

11:48

briefs, a particularly effective job of

11:51

explaining just how much there

11:53

was in the way of sort of new prosecutorial

11:56

sort of imagination here,

11:58

if you will, not to suggest that there was it was

12:00

inappropriate or anything. But a lot of

12:02

this was untested in the architecture of

12:04

the legal case. Then as we

12:06

got to the trial, you know, I did a whole

12:09

column on this. I mean, it was just a completely

12:11

idiotic for Todd Blanche, Trump's lead counsel to deny

12:13

that Trump had had a sexual encounter with Stormy

12:15

Daniels. I mean, they were just asking to get

12:17

beaten over the head with her testimony. That's exactly

12:20

what happened. Throughout, you know, there

12:22

were also these cross examinations of every single

12:24

witness. Again, this is a very Trumpian strategy,

12:26

right? You just have to like, you know,

12:28

attack everything, don't, you know,

12:31

deny everything. And, you

12:33

know, the early witnesses, we'll take

12:35

someone like Keith Davidson, who

12:37

was Stormy Daniels lawyer, he barely had any contact

12:40

with, I mean, he had no contact with Trump.

12:43

His dealings were all through Michael Cohen. So,

12:45

you know, the cross of him could have been,

12:47

you know, how many times you talked at all

12:49

Trump, okay, thanks

12:51

for some variation on that. You

12:54

know, instead, it was

12:57

like this whole thing about how he's a sleaze

12:59

merchant, and potentially extorted Trump

13:02

and all that. And it was like, you know,

13:04

that may be good for sort of the political

13:06

theater, but it is not the way to

13:08

defend a white collar case, which usually requires some

13:10

very strategic judgments about what to contest and what

13:13

not to contest. And

13:15

then we get to the cross of Michael Cohen, which

13:18

I think was always sort of the main

13:20

event in this case. And,

13:22

you know, Cohen has just so

13:24

much, I've never seen a government

13:27

witness in any serious criminal

13:29

prosecution with as much material for a

13:31

defense lawyer to work with as Michael

13:33

Cohen. Really, like, I

13:35

mean, like, you know, the

13:37

people talk about, you know, Sammy the

13:40

bull Gravano, putting away God, he was

13:42

a murderer, like worse

13:44

than that kind of criminal? I

13:47

mean, like in white collar cases, to be honest. I mean, Okay, got

13:49

it. Got it. Murder is the way like, sent to that

13:51

to the side. Fair

13:54

enough. Fair enough. Fair enough. Okay. But

13:58

he's lied to so many, So many

14:00

people, he's lied to every branch of the

14:02

federal government. He's lied to

14:04

his banks, he lied to the IRS. On

14:07

the stand he called the judge who's, federal

14:09

judge who's deceased, who sends him corrupt as

14:12

well as the Southern District prosecutors. Claimed

14:15

he'd been railroaded. He hadn't really done the things he did, but

14:17

maybe also he did do some of the things he did. Anyway,

14:20

he was, he just provided

14:22

an extraordinary amount of fodder for a defense witness,

14:26

for a defense lawyer. And, you know,

14:28

obviously he's had reams of material in the form

14:30

of podcasts and television interviews that could have been

14:32

used to cross him and kind of that was

14:35

at least the podcast stuff. But the cross itself,

14:37

I mean on paper, I thought

14:39

Blanche actually did a good job of like

14:41

kind of extracting some key points and particularly,

14:43

I mean, there's no denying whatever the result

14:45

was the cross on the call to Keith

14:48

Schiller and the revelation that it may have

14:50

been about a 14 year old kid harassing

14:52

Michael Cohen, rather than Michael

14:54

Cohen apprising Donald Trump about Story of the Daniels.

14:56

That is an excellent cross examination moment, despite the

14:58

fact that they lost the case. But

15:03

you see, he pulled out that material.

15:06

But you know, and I heard this from

15:08

people who were in the in the courtroom,

15:10

not political colleagues, I'm not going to read any of

15:13

them out. But I heard this

15:15

from multiple people that it was not landing because Blanche

15:17

was all over the place. He

15:20

didn't moderate his tone very well. You

15:22

can see this on paper, too, but it

15:24

jumped around temporarily, like in time, and even

15:27

thematically. And you have to pick one if

15:29

you want jurors to follow what you're doing

15:32

across examination either needs to move thematically

15:34

or temporally or some combination thereof. So

15:37

then, you know, we get to the closing arguments. And

15:39

you know, the column I did prior

15:42

to the closing,

15:44

as I said correctly, in my view, or at least

15:46

that's what I truly believe that this case could actually come

15:49

down to the closing arguments, because

15:51

had the defense really

15:54

rearrange all the material from Cohen's

15:56

cross and sort of jettison some

15:58

of their silly mistakes. like denying

16:00

the encounter with Stormy Daniels, they

16:02

could have put together a very, very good

16:05

closing. And then the closing, you know, I

16:09

hate to beat down on the losing party here,

16:11

but the closing was bad. It

16:13

was really bad. It

16:16

just re-hashed everything

16:18

that had come out on cross. And

16:20

like then at the full kind

16:22

of arsenal of material that you could have

16:24

deployed against someone or against Michael Cohen at

16:26

the close of a trial, again, having a

16:28

week to prepare after the close of evidence,

16:31

that just did not come through. And

16:34

I'll say like the scuttlebutt such as it

16:36

is, I'll just give it to you. It's

16:38

been going around among the legal analysts and

16:40

commentators for the last week or two. I

16:45

think the closing sort of solidified that Todd

16:47

Blanche did not do his best work on

16:49

this case, and that

16:51

another set of lawyers plausibly could have gotten

16:53

Trump off. The

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learn more.

17:35

I want to ask Kyle

17:38

about the complicated jury instructions

17:40

that confused everyone earlier

17:43

this week and gave

17:46

the jurors this sort of multiple options

17:52

that people on the right

17:54

found in puriating. Could

17:57

you just explain that for us, Kyle? Sure, and

17:59

there was a lot of mis- information about it about them

18:01

too and what they really meant but

18:05

it is complicated and I think

18:07

is a fair criticism of this

18:09

case overall that and that they relied

18:11

on this on this law

18:14

that has so many layers and is somewhat

18:16

untested in the way that it was used

18:18

against Trump that that that will

18:20

be a matter on appeal and I'm sure there may

18:22

be a serious appeal but the prosecutors had to show

18:25

that Trump falsified the business

18:27

records in order to in

18:31

the commission of another crime it's almost

18:33

like inception is like a few different

18:35

layers of things

18:37

they had to show and the burden of proof

18:40

on each is different got

18:42

it that so you know he broke New

18:44

York election law but by one of these

18:46

three methods right there's a kind of a

18:48

menu of ways in which they the jury

18:50

could have found that he attempted to do

18:52

that or intended to do that

18:54

and one of the jurors did not have to

18:57

agree on which method and that's

18:59

what became the firestorm on the right was

19:01

you know because everyone is very familiar with

19:03

the concept of jury unanimity to convict someone

19:05

of a criminal offense and take away potentially

19:08

take away their liberty if you need this

19:10

unanimity it's got to be overwhelming and

19:13

that's true and the judge is very

19:15

clear you need to unanimously agree that

19:17

he falsified records you need to unanimously

19:19

agree that he violated New York State

19:21

campaign finance law what you don't need

19:23

to unanimously agree on is how he

19:26

attempted to violate New York State campaign

19:28

finance law there are several different ways

19:30

the prosecutors offered to show that that

19:32

that Trump attempted to do or intended

19:34

to do that got

19:36

it at the end of all this judge

19:38

one more Sean has he set

19:41

sentencing for July 11th which

19:44

inconveniently is the day before my 50th

19:46

birthday when I'm supposed to be on

19:48

vacation but perhaps more importantly for

19:51

a lot of people that's four days before

19:53

the Republican National Convention starts in Milwaukee let's

19:57

distill down everything we know

20:00

about sentencing and

20:02

what the sort of range of

20:04

options are here. Ankhush,

20:07

do you want to start with that? I mean,

20:09

the things that I, you know, tell me if

20:11

I'm wrong about this, but the

20:15

conventional wisdom I see among the

20:17

legal analysts is on one side,

20:19

oh, it's a

20:21

Class E felony in New York, that's

20:23

minor, most of the time there's no

20:25

jail time. On the flip side,

20:29

Trump was found to be in

20:31

contempt of court 10 times during this trial.

20:35

He was found guilty on all 34 counts. It

20:38

doesn't seem like he's likely to show much

20:41

remorse and that that weighs more

20:43

towards the side of a stronger

20:45

sentencing. What's your view of all

20:47

this? I think that is correct.

20:50

I mean, so first of all, the maximum sentence

20:53

on a charge that he's been charged, he's

20:55

been convicted of four years per count, they're

20:57

not going to stack. So I

20:59

would think the judge would be looking at in terms of like

21:02

the max thinking about this as a maximum four

21:04

year term of imprisonment. Not four times 34. Right

21:07

now. But

21:10

the, you know, for a first time offender in

21:13

New York where white collar defendants are pretty treated

21:15

pretty well by sentencing judges,

21:18

and you know, Trump has a

21:20

history of serving as

21:22

US president, which is nothing by

21:24

any means. Yeah, he would

21:26

have a very good case for probation in the ordinary

21:28

course. Or

21:32

potentially getting up to some combination of

21:34

probation and fines or something like that. But

21:37

to me at least, the factor that I

21:40

think, like is the wild card here, is

21:42

his own behavior during the trial and I'm

21:44

sure we're going to see more of it

21:46

after. I mean, he... And

21:48

we saw it immediately after the verdict. Yeah,

21:50

I mean he used every single day to

21:53

rail against the judge

21:55

and the case in, and that's all well

21:57

and good, fine, rail away, but it was

21:59

extremely dishonest. claiming that the case

22:01

had been orchestrated by the Biden White House,

22:03

that was his political enemies coming after him.

22:06

And that undermines

22:08

the New York criminal justice system.

22:11

And it undermines the integrity of the proceedings. And I'm

22:13

sure there are plenty of people who are happy for

22:15

that to have happened, but I guarantee you the judge

22:17

was not happy for that to have happened. And one

22:19

of the things he's supposed to do is to guard

22:21

the integrity of the legal system, the court proceedings. It's

22:24

a remote respect for the law. So

22:26

I don't know what he'll do, obviously,

22:29

in terms of actually rendering a

22:31

sentence. But if I were him,

22:33

that part of it would be give me a

22:35

very serious pause because I would be

22:37

thinking, you know, it's

22:39

all well and good that he's convicted on

22:41

this. We don't usually give people prison time.

22:43

That's very, very significant and important. But how

22:45

can we let someone just treat

22:48

the justice system this way? I

22:50

literally cannot think of a precursor

22:53

for the way in which Trump behaved. We'd

22:55

have to go to mobsters, I guess. But

22:57

even then, they don't get

22:59

every day to speak to the national media

23:01

and have their words broadcast throughout the country.

23:03

And that's what Trump did. They

23:06

often listen to their lawyers. Kyle, what do

23:08

you think? Is Trump going to jail? One

23:11

factor here, too, is over the next few

23:13

weeks, we're going to see a bunch

23:15

of filing submissions, including from the DA

23:17

recommending a sentence. And Trump will actually have

23:20

to sit for a probation interview with

23:22

a probation official who

23:24

will also contribute to those, you

23:27

know, potential recommended sentence, which

23:29

I'm trying to fathom the probation

23:31

officer who gets picked for that job.

23:33

Wait, okay. So slow down here. Explain

23:35

this. Okay. So the trials over, the

23:38

verdicts in immediately after they set the

23:40

sentencing date, what happens between here

23:42

and July 11th? So

23:45

Trump's team and the prosecutors will

23:47

each submit a proposed sentencing recommendation.

23:49

I'm not as familiar with the

23:52

intricacies of the New York state process.

23:54

I know, at least on the federal level, that they each

23:57

sort of submit and then in the probation department

23:59

also submit. miss its own recommendation. Marchon

24:02

did talk about Trump sitting for

24:04

a probation interview, which

24:07

makes me think it'll be somewhat akin to

24:09

that. Wow. This just goes to

24:11

show you how unsuited this process is for

24:13

dealing with this kind of crime and

24:18

defendant. Because, I

24:20

mean, just imagine the probation officer

24:22

who's got this schedule. And

24:26

again, we'll see these filings get traded. Trump's

24:28

going to have to go down to

24:30

Florida for other hearings in his

24:32

criminal case there. And he's got

24:34

the Republican convention four

24:38

days after his sentencing. And he'll actually

24:40

receive the nomination six days or so

24:42

later, which is sort of a remarkable

24:47

juxtaposition that he'll be sentenced

24:50

potentially to prison before he's

24:52

the official GOP nominee. It's

24:56

sort of hard to even process. After

24:58

he is sentenced on July 11th, and my

25:01

understanding is he could file a motion to

25:04

extend that date. So we'll have to

25:06

watch to see what happens with that.

25:09

So Ankarsh, the appeals can

25:11

start after sentencing. What

25:13

does that process look like? And

25:16

is it likely that if he is

25:18

sentenced, even if it's just community service

25:20

or home confinement, whatever it is, is

25:22

it very likely that that would be

25:25

suspended during an appeal or is that

25:27

an open question? So

25:29

the process is, it would

25:32

follow a fairly standard process of just

25:34

briefing through first the appellate division, which

25:36

is the intermediate court in

25:38

New York, and then potentially up through the Court

25:40

of Appeals. And it would

25:43

be briefs and potentially oral arguments at

25:45

the judge's discretion. Although I'd

25:47

imagine on this, there would be

25:49

oral arguments. In terms

25:51

of whether or not he would be allowed

25:54

to sort of suspend his sentence, so to

25:56

speak, pending appeal, I'm

25:59

sure he will ask. I do not know if it will

26:01

be granted. I do think he

26:03

would have a pretty good argument

26:05

under the circumstances simply because there

26:07

are some novel legal issues here

26:10

and that tends to be the best argument

26:12

for defendants to stay out pending appeal just

26:14

to say like you don't quite know

26:16

how this is going to resolve itself and particularly when the

26:18

sentence might be shorter, significantly

26:21

shorter than the time it would take for the appeal

26:23

to run. Meaning

26:25

like if the guy would be sentenced like two or

26:27

three months and we're talking about a years-long appeals process,

26:30

the sentence could be served by the time

26:32

the appeal is over. So which is not

26:34

a great situation. So that

26:38

I think he'll have a pretty good argument in this case but I don't

26:40

know how it'll unfold. Kyle, what do

26:43

you think the best avenues

26:45

for an appeal are and on Coach

26:47

Phil Thurgood to jump in as

26:49

well? There are a couple and

26:51

I think one is what we talked about earlier which

26:53

is that they're going to challenge this idea that the

26:56

unlawful means that the jury could

26:59

choose from that menu of choices

27:01

to decide how Trump violated campaign

27:03

finance law was not unanimous. They'll

27:06

say that that's a violation of Supreme Court

27:08

precedent. Ankerch

27:10

may have a better grasp on whether that's

27:12

even plausible but

27:16

I think that's talking point 1A for

27:18

them on appeal. Then I think

27:20

there's also some question about some of the testimony that

27:22

came in from Stormy Daniels and whether it was prejudicial

27:26

in the sense that it wasn't related to

27:28

the actual crime

27:32

itself, the charges themselves. Even

27:35

the judge got upset at a couple points

27:37

when the prosecutors kept eliciting testimony from her

27:39

that was really salacious. It's not

27:42

sort of fortuitous for Trump that the High

27:46

Court in New York ruled that Harvey

27:49

Weinstein, his

27:51

conviction, usually

27:54

be retried in part because his trial was

27:56

prejudiced by similar evidence coming in that shouldn't

27:58

have come in that may have been. been

28:00

inflammatory and prejudiced the jury. I don't

28:02

think these are analogous cases in any

28:05

respect, but Trump's people are very well

28:07

aware of that ruling and might point

28:09

to it to say, her Stormy Daniels

28:11

testimony was so prejudicial, he should get a new

28:13

trial at least. Yeah,

28:15

I guess I agree with Kyle.

28:17

It does seem to be some of

28:19

the avenues that they're pursuing. They

28:21

don't sound terribly promising to me,

28:24

those particular two. And I'll take up

28:26

one at a time. The structure

28:29

of the decision making that the jury did here,

28:31

sort of, is he guilty of this

28:34

offense and providing

28:36

multiple means by which you could reach that conclusion

28:38

without the jurors having to agree on, which means

28:40

it is extremely common in

28:43

criminal cases, in particular, conspiracy cases.

28:46

Because oftentimes the charges are just going

28:49

to be the conspiracy, the prosecutors will

28:51

allege multiple manner and means, meaning the

28:53

ways in which the conspiracy was

28:56

effectuated, or potentially multiple overt acts, depending

28:58

on what part of

29:01

the charge we're talking about. And

29:03

the jurors don't have to agree on those things either.

29:06

They just have to, each one of them just has to agree, you

29:08

know, there was a manner and means that was used to pursue

29:10

the conspiracy. They don't have to agree on which one. So I

29:14

would be surprised if that had legs

29:18

legally, but, you know, New York courts can surprise

29:20

from time to time. I

29:22

do understand why Trump and his supporters

29:24

have tried to mislead the public into

29:27

thinking that this is unusual because it

29:29

sounds counterintuitive, but it's in fact, quite

29:31

common in the criminal system. As

29:34

for the analogy to

29:36

the Weinstein case, I completely agree with

29:38

Kyle, there are significant differences. I mean, the

29:40

most obvious one, which I think just

29:42

as the whole ballgame to me, at least,

29:45

is that the Weinstein conviction

29:48

was overturned because there was testimony

29:50

from witness, women

29:53

accusing Weinstein of misconduct that

29:55

had not been charged in the case, meaning

29:58

it was extrinsic to the charge. that have

30:00

actually been brought. In this

30:02

case, we're not talking about a

30:04

totally different witness being allowed to testify about

30:06

some other event. We're talking about a single

30:09

witness potentially offering some extraneous details,

30:12

which is very different in

30:14

kind. The issues

30:16

that I think actually might have

30:19

some legs are the issues surrounding

30:21

the interaction between New York and

30:23

federal law. Like, let's

30:26

say that, for instance, as Kyle

30:28

mentioned, the crime that elevated

30:30

this from a misdemeanor to a felony was this New

30:32

York state law that prohibits promoting

30:34

the election of someone through unlawful means.

30:37

The unlawful means included potential

30:40

violations of federal campaign and finance

30:42

law. Is that a

30:44

permissible object of a New York

30:47

criminal statute of that nature? Can that

30:49

object of that statute be

30:51

a federal offense? Or does that sort of

30:54

overlap with federal jurisdiction in the area

30:57

and campaign finance law more generally?

31:00

That is an actual intricate issue that

31:02

I don't think is particularly well resolved

31:05

in New York courts. Also, this question

31:07

of like, what does it mean to

31:09

have the intent to commit another crime

31:11

that was hotly contested in

31:13

the run through the jury instructions? And

31:17

that there too, actually, this was acknowledged explicitly

31:19

during the charging conference is an area where

31:21

there was really not much guidance for

31:24

the parties to work with in terms of figuring how

31:26

to instruct the jury. And that can

31:28

be an area of vulnerability

31:30

on appeal as a result. All right,

31:34

gentlemen, my last question here is that now

31:36

that Donald Trump is a

31:38

convicted felon, what are

31:40

all the ways in which

31:43

being a convicted felon will

31:45

affect his life? And I

31:47

mean, from his ability to vote

31:50

to any other kind of restrictions

31:52

like that, to what

31:54

it might mean for the other

31:56

three cases that are still ongoing,

31:59

although as Kyle wrote

32:01

today and has written previously, are

32:03

unlikely to get resolved before the

32:06

election. What's

32:08

about asking you the political question that we're all

32:10

gonna be debating over the next few weeks in

32:12

terms of what this means for the election, but

32:14

what does it mean to be a convicted felon

32:17

for him? Kyle, you wanna start? Good

32:21

question. I think being a convicted felon for Trump is

32:23

gonna mean something different than it would for most people

32:25

in the world. I don't know what a lot of

32:27

things are. It's

32:30

gonna mean he's gonna raise a lot of money. Right, exactly.

32:32

I got a text message while we're on this

32:35

podcast so I'm a political prisoner, donate here. And

32:40

I think they'll make hay out of this for

32:42

a while, in part because

32:44

what we just talked about, there's a good chance

32:46

this sentence will be suspended pending appeal. And

32:50

he may not feel a real consequence from this

32:52

for quite a while. That

32:55

said, he's not gonna be the typical

32:57

convicted felon who has too many restrictions

32:59

on his travel or his movements. I'm

33:03

very curious how they factor in, because

33:05

the court system is not supposed to factor in

33:07

the political side of things, whether they account for

33:09

the fact that he'll be in the home stretch

33:11

of a campaign when his sentence is supposed to

33:14

be effectuated and

33:16

that actually trying to sentence him to prison in that

33:18

moment might have bigger repercussions than

33:20

just putting someone in jail. August.

33:24

Yeah, I mean, I totally agree with

33:26

Kyle. I mean, look,

33:28

in the ordinary course, there might

33:31

be some collateral effects in terms of

33:33

his ability to vote in Florida. I

33:36

know that there's a story that we have up

33:38

on that subject on the site. And

33:42

other than that, right, what does it mean to be

33:44

a felon? Well, it's usually harder to get a job

33:46

if you're looking for a job, but he's not gonna

33:48

have that problem. It's supposed

33:50

to be a huge stigma. And

33:53

an embarrassing thing, but we'll

33:55

see if that is the

33:58

case. certainly he's

34:01

not going to present himself as someone, the

34:03

only thing he's suffered some actual

34:06

stigma. So, and

34:08

I agree with Kyle, I wouldn't expect much in

34:10

the way of like any types of restrictions on

34:12

his movements or anything like that, or

34:16

any sort of particularly onerous conditions

34:18

on him, but we'll

34:20

see. I mean, it may be that if

34:22

the judge decides to sentence him to some

34:25

form of probation that he does impose or

34:27

attempt to impose some constraints along those lines

34:29

in order to sort of make it a

34:32

little bit more burdensome than just probation

34:35

might ordinarily be, but

34:37

the practical effects, I

34:40

don't, I agree with Kyle, I don't

34:42

think those are going to materialize at

34:44

least the worst ones just

34:47

yet, and not until the appeals

34:49

process plays out. And like if

34:51

he's in office, when that happens, then

34:54

I don't think there will be

34:56

any effect. I think it goes away. I was just going

34:58

to make that point that I think, there's

35:01

a constitutional argument that constraints put on him

35:03

by a state court would

35:06

be unconstitutional while he's president. He has duties

35:08

to the country that require him to

35:11

be uninhibited and unshackled from certain restrictions

35:13

that probation might impose, and they would

35:15

supersede anything to state, any interest the

35:17

state might have in effectuating

35:19

its sentence immediately. In Georgia,

35:21

Trump said, if he's elected,

35:24

the trials there should be postponed till 2029. I

35:28

think they'd make a similar argument for the effectuation of a sentence in

35:30

New York. Yeah, and I

35:32

would say, I know a lot of people

35:34

to fantasize about, I

35:36

don't mean that pejoratively, but sincerely, fantasize about

35:38

like, oh, could he be president from prison?

35:42

That would be bad for the country, right?

35:44

Whatever one thinks about Donald Trump, like

35:47

him or dislike him, his

35:49

worst impulses would just get worse if

35:52

he had to do it to serve as a

35:54

president from prison. So I think that is not going

35:56

to happen. It doesn't seem like

35:58

a good thing. Exactly, it would be bad for all of us. Yeah, he

36:00

would have to declare like what gang he joined.

36:05

I mean, I just thought it just, you know, the president

36:07

has to conduct foreign policy. That means going around and meeting

36:09

world leaders. You can't do that. I was

36:11

going to say, where are they going to set up a situation

36:13

room there, like down the

36:15

hall in Rikers or something. So

36:18

I just think that's practically inconceivable. And

36:21

the legal argument that Kyle sketched out is, I think, the

36:23

one that would be the principal one. Yeah.

36:27

So not completely out of the realm of

36:29

possibility that the Supreme Court has to think

36:32

through an issue like this at

36:34

some point in the near future. Yeah,

36:36

no, I mean, that's a good point, actually. It's

36:39

impossible that Trump tries to go from, if

36:41

he keeps losing on appeal, we'll see, but

36:43

tries to take it from the New York State court system

36:45

after losing at the court of appeals, even to the Supreme

36:47

Court. I mean, there's a lot

36:49

of string left to play here. And of course, you know, we're

36:51

not dwelling on the politics here, but, you know, November is really

36:53

going to be crucial in terms of whether

36:56

and to what extent this process really plays

36:58

out to its natural conclusion. Kyle,

37:01

thank you so much for helping us

37:04

break all this down and for all

37:06

your coverage of the trial. Hope

37:08

you guys get a little bit of rest this weekend.

37:10

Thanks. Thanks so much.

37:19

And that's our show. Our producer is Kara Taver.

37:21

Our senior producer is Alex Heaney. I'm

37:23

Ryan Lizzo, host and executive producer of Deep

37:25

Dive. Our music is by the

37:27

mysterious Breakmaster Cylinder. Tell us what

37:29

you think about the show or who you'd like

37:32

to hear on Deep Dive. You can email me

37:34

at rlizzo at politico.com. And

37:36

please subscribe to Playbook Deep Dive wherever you

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get your podcasts. Thank you so much for

37:40

listening. Thank

37:49

you. Thank

38:07

you.