July 9, 2024 • 53 mins
Litigation Nation hosts Jack Sanker and Danessa Watkins dive into the recent landmark verdict finding Trump guilty of 34 charges of falsifying business records. They also explore the nuances of the case, including the jury's decision, sentencing considerations, and the possibility of Trump running for president despite the conviction. Join our discussion on the legal implications, potential appeals, and the impact on the political landscape in the comments below.
Special thanks to summer intern Ava Rosenberg for her research contributions to this episode. Tune in for a thought-provoking discussion on the complexities of high-profile legal cases and the impact on our society.
- (00:00) - Intro
- (01:09) - What happens now with Trump's 34 Felony Convictions
- (53:11) - Outro
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jack Sanker (00:05):
Welcome to Litigation Nation. I'm your
host, Jack Sanker, along withDanessa Watkins. This is the
show we talk about some of themost important and interesting
legal stories the past couple ofweeks. Danessa, what do we got
today?
Danessa Watkins (00:17):
Well, Jack, as you know, immediately after the
May 30, 2024 decision came down,finding Trump guilty of 30 4
charges of falsifying businessrecords, I pretty much
immediately texted you and saidwe need to do a show on this.
Yep. It's just it brings up somany interesting legal issues, a
(00:39):
lot of unknowns. We're kind ofin uncharted territory here. So
I thought it would beinteresting to scour the for
what the legal scholars aresaying about this and, have our
own little discussion about whatwe think all this means.
Jack Sanker (00:54):
Fantastic. Well, let's get into it. All that and
more, folks. Here's what youneed to know.
Danessa Watkins (01:10):
Alright. So just recently, we had, 12 jurors
in New York, all independentpeople, depending on who you
ask, I guess. They charged Trumpas guilty of 34 charges of
falsifying business records,which is a felony in New York.
And this boils down to asituation in 2006 when Trump and
(01:34):
Stormy Daniels, who is a pornstar actress, engaged in
extramarital sex, which Trumpdenies to this day. And after
that, when Trump was running forthe presidency in 2016, his what
we call former fixer, MichaelCohen, he testified that Trump
(01:55):
approved a $130, 000 hush moneypayment to miss Daniels.
Cohen handled the paymenthimself and testified that Trump
approved a plan to reimburse himthrough monthly payments
disguised as legal work. So thisis the substance of the
falsification of businessdocuments, allegations, and the
(02:18):
Manhattan District Attorneydecided to elevate the case to a
felony on grounds that Trump wasconcealing an illegal campaign
contribution. So the jury cameback, finding mister Trump
guilty on all 34 charges, andthis was a historic outcome in
our jurisprudence. This is thefirst former or sitting
(02:39):
president to be tried andconvicted of a felony crime. Now
this actually surprised mebecause thinking back, we have
certainly had some, characters,I guess, holding the presidency,
but, and ethics expert, RobertGordon.
(03:04):
So when asked whether there hadbeen former presidents tried
convicted of a felony, heanswered a resounding no. We all
usually think of Richard Nixon,who was named as an unindicted
coconspirator by the grand juryinvestigating the Watergate
crimes, but he was actuallypardoned by his successor,
Gerald Ford. Thinking way back,we have Aaron Burr, who was
(03:27):
Jefferson's vice president thatmight have been charged for
killing Alexander Hamilton in aduel, but was not. He was
actually indicted for treasonfor allegedly conspiring to lead
a rebellion against therepublic, but was eventually
acquitted.
Jack Sanker (03:41):
Didn't know that.
Danessa Watkins (03:42):
I don't know. Then another instance that
probably comes to mind quicklyis Bill Clinton, who faced
possible charges of perjury andobstruction of justice for lying
about his affair with MonicaLewinsky, but he was never
actually charged. He was,however, disbarred in Arkansas.
So that is actually probably thehighest level of discipline that
(04:05):
any of our former presidentshave faced up until this point.
Now this brings up a lot ofunknowns.
I wanna, though, start firstwith what can we expect next out
of this case because I think,certainly, we know that the
defense team is going to beappealing. But before we get to
(04:26):
that point, there is still asentencing hearing, which is
currently scheduled for July 11,2024, which happens to be just
days before the Republican PartyNational Convention in
Milwaukee. So depending on howthe sentencing goes, Trump mayor
may not be able to attend thatevent. But the the crimes that
(04:46):
he is charged with, they eachcarry a max sentence of 4 years
in prison, and those would runconcurrently. So it's not like
he would get 4 years times 34.
They would all run at the sametime. But there's also no
minimum sentence. So this givesthe judge a lot of discretion.
He could issue a fine. He coulddo probation.
(05:08):
Trump could be confined in hishome, under supervision, or he
could actually be behind bars.So these these 34 charges are
all class e felonies in NewYork, which is the lowest tier.
The prosecutors have not yetdisclosed what they're going to
be asking for during sentencing,but the judge will be able to
(05:29):
take a lot of things intoconsideration. I guess pro Trump
is the fact that he is a firsttime convicted offender, that
this was a nonviolent whitecollar crime. He's 77 years old,
and we expect that he will bepresenting a number of character
letters from friends and familyto help guide the judge.
(05:51):
But on the other hand, the judgecould certainly consider the
fact that Trump had numerousviolations of the gag orders
during his trial.
Jack Sanker (05:58):
I think there were 10 contempt orders entered on
this case.
Danessa Watkins (06:02):
I believe so. I think he ends up didn't he get
fined for
Jack Sanker (06:05):
10, 000 he's lost? A lot of money relative to what
type of cases is, but there are10 contempt orders, and that is
proper for the judge to considerthat when sentencing.
Danessa Watkins (06:15):
Right. Right. So even if he is, though,
sentenced to incarceration, hecan ask the, the trial court
judge or the appeals court forbail pending appeal so that he
can stay out of custody while hechallenges his conviction. You
know, typically, those type ofhearings, they look at whether
(06:35):
someone is a flight risk, whichI think he's not, despite his
money. We know that he's runningfor the presidency.
So
Jack Sanker (06:42):
Where would he go?
Danessa Watkins (06:43):
Yeah. Exactly. Not Europe.
Jack Sanker (06:46):
Who would I I don't know. Yeah.
Danessa Watkins (06:49):
Argentina? Come in. Yeah. Maybe. So, you know,
we've got another month to seewhat happens at that sentencing
hearing.
And then after that is whenTrump's team can move for an
appeal. Now the appeal processcould take it it certainly will
take more than a year. It couldbe more than 2 years, actually,
(07:10):
depending on how far it goes up.He will appeal to the state
court, appellate court, but thiscould eventually go all the way
up to the US Supreme Court, justgiven the issues that are
involved here. So we havescoured the Internet looking for
everything everything from legalscholars to just, you know,
(07:31):
people off the streets, talkingabout what are the potential
issues for appeal here.
1 that came up most often wasthis issue of the extent of
Stormy Daniels' testimony. Soduring the trial trial at 2
separate occasions, the Trumpdefense team asked for a
mistrial because Daniel'stestimony was just going, I
(07:55):
guess, really into privateissues that maybe
Jack Sanker (07:58):
She was given a lot of sex details.
Danessa Watkins (07:59):
Yeah. That that really didn't have any bearing
on on the issues, but the judgedid allow it. You know, it's
definitely the fact that she wastalking about him having a
extramarital affair, not usingprotection.
Jack Sanker (08:14):
So, as I understand, the what happened
here and this would require apretty in-depth review of the
trial court transcript, which,you know, we don't have the time
to do. But as I understand, theTrump, defense team here made a
standing objection to, this typeof testimony at the outset,
probably in a motion of limineor something like that. The
(08:35):
judge reserved ruling, and thenStormy went up there and
testified, and they renewedtheir objection after the fact,
at which point the judge said,sorry. It's not a time in the
objection. You've waived.
So I don't the judgesubstantively ruled whether it
was missable admissible or ornot. It was a, timeliness
aspect, which, you know, forthose of you who are listening
(08:56):
that try cases, you all know,absent an agreement, at word
order to the other way to theopposite effect, you do have to
renew your objection every time.And that's, renew your objection
every time. And that's you know,that could be on the lawyers
here. I don't know.
Danessa Watkins (09:10):
Okay. That's interesting. Yeah. I hadn't I
hadn't heard about that 1.
Jack Sanker (09:15):
Because, by the way, if you review the the
actual testament that she'stalking about, I was like, how
on earth did this come in?
Danessa Watkins (09:20):
Mhmm.
Jack Sanker (09:20):
Because it's like, you you don't need to talk about
this stuff to convict him of adocuments charge.
Danessa Watkins (09:26):
Right. Right. And I think I and I didn't look
into this 1 too deeply, but Ithink there was other other
information that came in thatreally wasn't pertinent, like
his his other cases potentially,I think, with Gene Carroll.
Jack Sanker (09:42):
Yeah. I mean, a reoccurring theme of all of, the
Trump legal problems, and Idon't know these lawyers, and I
don't know and, I I mean, Idon't know anything about them,
and I'm but I'm basing it on thereputation of some of his other
represent of his otherrepresentation and other matters
is Trump hires the weirdestlawyers in America, that's just
(10:03):
been his MO for as long as he'sbeen on the scene. They're
usually quite weird and usuallyhave I'm sorry. But they are
just, so there's a lot of, like,things that happen during Trump
trials that don't happen if justa normal attorney was
representing him. Mhmm.
I don't know if that's the casehere, but that would be, par for
(10:26):
the course.
Danessa Watkins (10:27):
Like a creation of chaos situation? Yeah.
Jack Sanker (10:30):
I mean, you remember the guy with the
mustache and the the he lookedlike colonel Sanders? Like, it's
always some someone like that.Mhmm. I'm sorry. But anyways.
Danessa Watkins (10:41):
Just a way to throw things and, you know, just
maybe distract. It it could bethat those are slim pickings
when he comes down down topicking his We
Jack Sanker (10:49):
just he he keeps not paying them, and then his
last personal attorney is injail. So Right. Yes. He is
getting, like, the loony tunelawyers. Like, that's all he's
getting.
Anyways, go ahead.
Danessa Watkins (11:01):
Alright. Well, we'll see how that plays out at
the appeal level. But, alright.Other potential basis for
appeal, and this 1 probably hasmore teeth than others. There's
this issue about whether the theprosecutor was, was direct
(11:21):
enough about what charges he wasbringing and what Trump was
actually on trial for.
Jack Sanker (11:30):
Yes. So this is if if you mind if I jump in on
this, because you were talkingabout the decision, of the
prosecutors to charge Trump withfelonies. So, typically, as I
understand it, the, thisbusiness record falsification
charge or whatever is usually amisdemeanor.
Danessa Watkins (11:45):
Correct.
Jack Sanker (11:45):
But it gets it can be brought as felony charge if
the, prosecutors areestablishing that, the the
falsification of the documentswas done in an attempt to commit
or conceal a separate underlyingcrime. And here, as I understand
(12:06):
it, Trump was charged with thisfelony level falsifying business
records, charges of 34 counts ofit, because he falsified records
to conceal a separate violationof New York, election law which
prohibits conspiring to promotepolitical candidate, in this
case, Trump himself, throughunlawful means. So that is the
(12:29):
hush money paid to Daniels whichwas allegedly paid with campaign
contributions. So it it kind ofstacks here. Yep.
It's interesting though thatthat charge that this is, like
that the otherwise misdemeanorsare resting on, has not been
adjudicated. So it's, you know,it's a the jury had to basically
(12:51):
believe that he was guilty ofanother crime or likely to
guilty of another crime, beforethey could even get to, whether
he's guilty of these, like,felony counts and, you know,
unanimously, they did.
Danessa Watkins (13:04):
Right. So, yeah, to break it down a little
bit. So the I don't thinkthere's any case law on this
issue. So it it may be 1 of thefirst times where a state
prosecutor has invoked anuncharged federal crimes, this
election fraud, and there'squestions about whether that
should've removed the case evenfrom the state court to the
(13:26):
federal court level to beginwith, whether whether this court
even had jurisdiction over thematter. But, yes, it was
essentially asking the jury toassume something, but it also,
in doing that, didn't give thiswould be the argument.
Didn't give Trump the dueprocess of timely receiving
(13:46):
notice of the crime that heallegedly intended to commit
because the prosecutors weren't,you know, so specific about it.
Jack Sanker (13:53):
That's been the spin afterwards, but, I mean,
it's in the pleadings. Like,it's it's, you know, the
citation to the New York statuteor whatever, like, it's it's
it's there. Well, I
Danessa Watkins (14:05):
think what the you've read that the definition
of that statute. I think thepart that is vague is the
unlawful means. So what were theunlawful means that he was using
in order to, you know, furtherthis crime.
Jack Sanker (14:20):
So here's here's the I actually have the, the
falsifying business records inthe first degree, felony statute
from state of New York here.Section, 175.10 of the, I guess,
penal code in New York.Falsifying business records in
the first degree, a person isguilty of falsifying business
(14:41):
records in the first degree whenhe commits the crime of
falsifying business records inthe second degree, and when his
intent to defraud includes anintent to commit another crime
or to aid or conceal thecommission thereof. Falsifying
business records in the firstdegree is a class e felony. So
you don't have to be guilty, bythe way, per the statute.
You don't have to be guilty ofanother crime. You have to have
(15:02):
intent to commit another crime.So that is a different that's a
different standard.
Danessa Watkins (15:07):
Okay. Yeah. That makes sense. The Wall
Street Journal, put out anarticle when was this? June 4th.
So right after after thesedecisions came down. But they
kinda described itinterestingly. So, quote, to
recap, the prosecution involved1, a misdemeanor elevated to a
felony based on an intent tocommit another crime. 2, an
(15:31):
indictment and trial that failedto specify or present evidence
establishing another crime thedefendant intended to commit.
And 3, a jury instruction thatthe other crime was 1 that
necessitated further proof ofunlawful means.
It's a Russian nesting dolltheory of criminality. The
charged crime hinged on theintent to commit another
(15:51):
unspecified crime, which in turnhinged on the actual commission
of yet another unspecifiedoffense. I mean, when you put it
that way
Jack Sanker (15:59):
Sure.
Danessa Watkins (15:59):
It's But I and, again, we we haven't, you know,
read all of the the trialhearing documents. We don't know
Jack Sanker (16:06):
Right.
Danessa Watkins (16:06):
You know, what the prosecutors said, how they
said it, what was disclosed tothe defense team.
Jack Sanker (16:11):
I fundamentally reject this premise that the
defense was caught completelyflat footed when it came to
closing arguments, and they hadno idea at all what was going
on. This is a case that is theywould have spent 100 of hours
preparing for. There would havebeen multiple pretrial
conferences. I just I understandthat that's kind of the
(16:33):
narrative. And this is settingaside, like, we're not gonna get
into, you know, whether this wasfair or not or whatever.
But I do think that this is,like, as the kids would call it,
cope. They're just making,people are making excuses here.
I mean, I I don't know. I I justreject the premise outright.
Yeah.
Danessa Watkins (16:49):
I don't know the term cope. They're coping.
It's Like a coping mechanism?Copium.
Jack Sanker (16:54):
Copium. You want kids. I don't know. You're just
making stuff up to You know whatI'm talking
Danessa Watkins (17:13):
Okay. Fair. Alright. So that that I think is
1 of the arguments that probablypeople have analyzed the most
from a legal standpoint. Mhmm.
But the let's see. Another 1that definitely goes to a lot of
issues of legality are theinstructions to the jury. So I
(17:35):
did look up exactly what theinstructions were, and the judge
said, quote, although you mustconclude unanimously that the
defendant conspired to promoteor prevent the election of any
person to a public office byunlawful means, you need not be
unanimous as to what thoseunlawful means were, unquote. So
(17:55):
the argument then on appealwould potentially be that in in
criminal court, you need to beconvicted unanimously of a
crime, and here, the instructionwas, you know, that the jury
didn't have to come to thatunanimous decision. Now this was
this comes from a Supreme Courtruling from 1991, Shadd versus
(18:17):
Arizona.
This was a murder case where itwas found to violate the due
process clause for a state toconvict someone under a charge
of crime, so generic that itcould be any combination of jury
findings of embezzlement,reckless driving, murder,
burglary, tax evasion, or evenjust littering, for example. You
(18:37):
know, when you have a jury thatcan find all these different
aspects of wrongdoing and thenissue a conviction potentially
based on different findings,that is considered a violation
of due process rights.
Jack Sanker (18:50):
Yeah. I wonder where this instruction came
from. And for those of youlistening, in most
jurisdictions, there's gonna bewhat what are called pattern
instructions. And the patterninstructions are, for the most
part, have been approved andvetted either by some, you know,
state affiliated baradministration or by the supreme
court and the state itself. Andand these are the jury
(19:11):
instructions that are gonna thatare going to be used 9 9% of the
time.
They're going to be, safe to usein the sense that you're not
gonna catch an appeal from it,and there's you're not really
gonna get many objections to it.They'll be tweaked, based on the
facts of the case 1 way or theother. So I I don't know where
this particular instruction camefrom if it was if there was a
pattern for it or not. But ifthere was, again, this is 1 of
(19:36):
those things where, like, peoplemay be making a bigger deal out
of it than it is. III don'tknow.
It's but if there's if this is apattern instruction and and
because there's so much scrutinyon this case, by the way, this
judge is gonna be catching anincredible amount of media
scrutiny. So is the jury. So arethe lawyers and prosecutors and
everyone else. If there was apattern instruction available, I
(19:57):
would bet my law license theyused it.
Danessa Watkins (19:59):
Right. But
Jack Sanker (20:00):
I don't know if there was for such a niche
charge. Mhmm. So yeah.
Danessa Watkins (20:06):
Yeah. Especially when the like you
said earlier that thisparticular, section of the code
in New York doesn't usually getused, as to to bring felony
charges.
Jack Sanker (20:16):
Right.
Danessa Watkins (20:18):
So we'll see what happens with that potential
argument. The last 1 I found,and I'm sure there's a ton, but,
1 that could be put forward, andI don't think it's going
anywhere, but, that the gagorder that restricted Trump's
public statements aboutwitnesses violated his rights. I
I mean Okay. Yeah. I I wouldn'tbe surprised if that got thrown
(20:41):
in in the end, but, I mean, youknow, that that's ridiculous.
Jack Sanker (20:45):
Yeah. Right. I just yeah.
Danessa Watkins (20:48):
Okay. So we will probably follow-up more on,
you know, whatever happens withthis appeal. But the questions
that I got texted by familymembers almost immediately were
the more fun ones. Like, canTrump run for president? Can he
(21:10):
vote?
What happens if he wins? So Iwanted to dig into this a little
bit because these areinteresting questions, and, like
I said at the beginning, kind ofuncharted waters. But some of
them, we actually do haveanswers for. So first, can he
run? Yes.
He can. The eligibilityrequirements for presidential
(21:32):
candidates are actually few innumber. You have to be 35 years
old, a natural born US citizen,and have lived in the US for at
least 14 years. So there are norules blocking candidates with
criminal records, and thisactually wouldn't Debs ran for
(21:57):
Debs ran for the Socialist Partyticket back in 1920, and he
garnered almost a 1000000 votes.At the time he ran, he was
actually serving a prisonsentence for speaking out
against America's involvement inWorld War 1, which at the time
violated the recently passedAct.
So mister Debs did not win, buthe was on the ballot and did
(22:19):
receive votes.
Jack Sanker (22:20):
And a 1, 000, 000 votes in 1920 is a lot.
Danessa Watkins (22:23):
I think it ended up being, like, 3%.
Jack Sanker (22:25):
That's a lot. Yeah.
Danessa Watkins (22:26):
So mhmm. So, yes, Trump can still be on the
ballot. But can he vote? Nowthis was kind of interesting
because it's it looks at bothwhere is Trump a resident and
where was he convicted. So underFlorida law, which is where
Trump legally resides, a personwith a felony conviction from
(22:48):
another state is ineligible tovote only if the conviction
would make the purse personineligible to vote in the state
where convicted.
So lucky for Trump, in New York,felons are allowed to vote so
long as they are not currentlyincarcerated. So unless he is
behind bars on election day,which by then, then, he will
(23:08):
have filed an appeal of an youknow, if there is a sentence
that puts him behind bars, thenthen he can vote. So
Jack Sanker (23:16):
Oh, well, at least he didn't lose that 1 vote.
Danessa Watkins (23:19):
Yep. I wonder if It may may be the decider.
Jack Sanker (23:22):
Who do you think he's gonna vote for?
Danessa Watkins (23:24):
Man. Oh, man. I don't know. I guess it depends
on what his sentence is.Alright.
Next 1. If elected, can hepardon himself? So this 1, in
this particular case, no.Presidents can issue pardons for
individuals who have committedfederal offenses, but this is a
(23:45):
state law offense. So the onlyperson that could issue a pardon
for him would be the governor ofNew York.
But, you know, given New York isa blue state, I think it would
be highly unlikely that, thegovernor would come to his aid
here. Right. But this does raiseinteresting questions for the
(24:06):
the other cases that are pendingagainst him right now.
Jack Sanker (24:09):
Like the federal, election case.
Danessa Watkins (24:12):
Yeah. So, he has 1 that is involving
mishandling of classifieddocuments. There's a Trump
appointed judge in Florida onthat case who has indefinitely
postponed the trial because hesaid they need to resolve
questions about evidence beforesetting a date. So that one's
not gonna move forward anytimesoon. But, yeah, yes, the
(24:35):
conspiring to overturn the 2020election, that is currently
delayed for an appeal that wasfiled by Trump's camp.
So, I don't think we'll seetrials in those matters anytime
soon, but it does leave thatopen question. If he was
convicted, could he issue hisown pardon?
Jack Sanker (24:57):
It would be weird if he could. Could. But, I mean,
ultimate, he could just resignwith 1 day left in his term and
then have the VP do it. Youknow? Uh-huh.
That's what Nixon did. Yeah. Imean, he didn't resign with 1
day left in his term, but, yeah,he could just do that. So Right.
For the federal charges.
If he if he wins election, heand his VP can can make the
(25:17):
federal charges go away, Ithink, is
Danessa Watkins (25:20):
Oh, I hadn't thought of that angle. Yeah.
Yeah. It's interesting.
Jack Sanker (25:22):
So it's so, by the way, the choice of his VP then
becomes very interesting.
Danessa Watkins (25:27):
Yeah.
Jack Sanker (25:27):
And that'll be I'm sure that'll be something that
is, like, talked about in leadup to the election. So he's
going to have to pick someonethat he can count on to pardon
him Mhmm. Which is, interestingcriteria.
Danessa Watkins (25:38):
Right. Which may not necessarily be the best
candidate.
Jack Sanker (25:42):
Well, I mean, do you think Mike Pence would have
pardoned him after January 6th?If if so if there was a if there
was a felony conviction afterthat?
Danessa Watkins (25:47):
I would say no.
Jack Sanker (25:48):
Exactly. So Trump's gonna be, like he's gonna be
looking for a VP here that islocked up to pardon. That'd be
very interesting.
Danessa Watkins (25:57):
Oh my goodness. Yeah. He's yeah. Sends out a
brochure, like, check yes or noand blah blah blah. And number 1
question, would you pardon me?
Jack Sanker (26:05):
Yeah. Yeah.
Danessa Watkins (26:06):
Oh my goodness. Okay. Well, there's that. He
also has that that case pendingin Georgia right now, where he's
being accused of criminallyconspiring to, I guess, what was
it, overturn? Or I think he wastrying to get the election
officials to do a recount oroverturn the Biden win.
Jack Sanker (26:27):
This was the case when he called the, election
official in Georgia whose whosename, escapes me right now, and
effectively told the guy, I needyou to find me
Danessa Watkins (26:39):
Find me votes. Right?
Jack Sanker (26:40):
Find me the exact amount of votes I need to win,
please. Yeah. Yeah. And doesthat account or does that amount
to, you know, an attempt to fixthe election?
Danessa Watkins (26:50):
Right. Right. So, again, that is a that's
under state law, is myunderstanding. So Right. Even if
convicted there, that wouldn'tbe something that he or his vice
president, if he took over thereins or she took over the
reins, would be able to pardonhim for.
That would come down toGeorgia's governor. Alright. So
(27:14):
another question, if sentencedto incarceration, what happens
if he's elected president? Ithink from what I've read, most
people are in agreement thatTrump would likely receive a
stay on his custody sentencewhile in office to prevent
interference with his officialduties at present Oh my god.
(27:37):
Which I guess, you know, aremore important than.
Jack Sanker (27:39):
Can you imagine if he has to wear, like, an ankle
bracelet the entire for 4 years
Danessa Watkins (27:43):
Oh my gosh.
Jack Sanker (27:44):
And, like, he he's I
Danessa Watkins (27:45):
mean, I think he wouldn't would he be able to
leave the United States?
Jack Sanker (27:49):
I feel like there would be exceptions made that
would like, for the the benefitof keeping the government
functioning.
Danessa Watkins (27:56):
Right.
Jack Sanker (27:56):
You know? Yeah. You couldn't have, like, a parole
officer, like, showing up to theUN, you know, and being, like,
what do you hey. You've gottacome back or whatever.
Danessa Watkins (28:06):
I don't mean to laugh because it I mean, it's
ultimately very embarrassing.
Jack Sanker (28:11):
It's deeply funny. It's The more you think about
it, the more funny it becomes,actually. That's that's the
attitude I've taken.
Danessa Watkins (28:17):
I guess you have to. You You have to have a
sense of humor about thesethings, but, I'm just trying to
find the intelligent legalconversations we can have about
it because, I mean, why not turnthis into a, you know, crazy law
school essay at the end of thesemester?
Jack Sanker (28:34):
Oh my god. It's gonna be law school hypos
Danessa Watkins (28:36):
Yeah.
Jack Sanker (28:36):
For this for sure. The crim pro, finals for the
next, next semester are gonna be
Danessa Watkins (28:43):
Oh, yeah.
Jack Sanker (28:43):
All about this.
Danessa Watkins (28:44):
For sure.
Jack Sanker (28:45):
Criminal procedure. It's a class we all have to take
or most of us have to take toget graduate law school.
Danessa Watkins (28:49):
Yeah. Constitutional law is another 1.
Yeah. These these will prove tobe good essay questions. So all
you law students listening, Iwould say read up on your local
news and scholars and blogs andget your answers ready.
Alright. Now kinda more broadly.So what does this mean generally
(29:13):
for our political landscape and,you know, the the issues that
now the judiciary is ispotentially going to face. So on
the 1 hand, you know, thisverdict is definitely a powerful
demonstration that our country,that the rule of law is upheld
equally against all citizens. Sono American is above the law.
(29:35):
If, you know, even a former headof state can't escape facing the
music, then our judicialinstitutions are just
inequitable and operating asthey should. But on the other
hand, and we've already startedto see this play out in the
media, our judiciary isdefinitely facing 1 of the most
ferocious political attacks inits history. We have members of
(29:57):
the Republican Party andcertainly Trump himself that are
directly challenging thefairness of the ruling, calling
the progress rigged, and evenreferring to the judge the
devil. So, you know,historically, of course, our
system of justice has beenaccused of multiple fallacies.
(30:19):
The 1 that comes to mind mostreadily is systematic racism,
which, you know, at times hasbeen proven true and has led to
positive change.
Just a couple examples. We'vehad jurisdictions that have
started to look more closely at,like, routine police stops,
practices of local authorities,which has improved training and
(30:40):
and focused them on recognizingracial bias and profiling. We've
seen changes in our sentencingguidelines. You know, 1 example
would be the harsher sentencesthat were handed down for crack
versus cocaine based on, youknow, the the typical users of
those substances despite thefact that they were pretty much
(31:01):
identical. The substances, thatis, not the users.
We've seen, probably even tothis day, pretrial releases
being granted more often forwhite offenders. Plea bargains
being more frequently offered towhite offenders. Even use of the
death penalty. It still shows,you know, clear evidence of
(31:23):
racism, which I think a lot ofjurisdictions are trying to
address, but, you know, thenumbers don't lie. And this
isn't just in, southern states.
I found, well, it was 2012, so alittle bit dated now, but it was
a study of Delaware's practicesdone by the Cornell University
Law School, and it found, quote,black defendants who kill white
(31:46):
victims are 7 times as likely toreceive the death penalty as our
black defendants who kill blackvictims, end quote. So, you
know, it's it's definitely not anew issue having our judicial
system under attack as beingunfair, but this it just rings a
little different. You know? Nowwe have this white millionaire,
(32:07):
billionaire businessman, aformer president, charged and
convicted, and he's using hisplatform to call the system
unfair, biased, rigged. It itjust brings, you know, a
different, I don't know, angleon this
Jack Sanker (32:20):
You know problem. The I mean, ultimately, the the
discussion here is, like, wasthis a, like, quote, unquote
political prosecution? And I Ithink that that question sort of
I don't really know if that's ahelpful question to even ask
because to me, of course, itwas. Every prosecution of anyone
who's a public figure is in 1way or another a political
(32:41):
decision. And a lot of peopledon't know prosecutors have the
discretion of what charges tobring and whether not to bring
charges in the 1st place.
And that's just, like, up to theprosecutors. They can just kinda
go with what they feel like.There are folks that you would
be surprised aren't charged forthings all the time. And there
are folks who when you when youlook at the what the charges
(33:02):
have been brought against them,you're like, holy crap. This is
seems like overkill.
And that's up to the prosecutor.So, so, you know, if you're
gonna make that point that thiswas a politically motivated
prosecution, I would say yes andso what? That's every
prosecution that you could thinkof. You know? Like and by the
(33:24):
way, the second question is, isthat bad?
And I and I don't know. Youknow? III think I'll give you a
great example, that comes tomind. In Chicago a couple years
ago, probably everyone remembersthe, Juicy Smoliette incident.
This was the, TV actor who,faked a racist attack, here in
(33:45):
Chicago, I honestly, I think forattention, and in the process,
kind of slandered the the cityand the police officers.
And, the city spent a lot ofresources and a lot of time, and
there was there was all sorts ofup uproar about it and
everything else, and turned outto to be entirely fake. And the
(34:05):
city of Chicago went out andhired a, rather the typical,
state's attorneys, they went outand hired a private, attorney,
Daniel Webb, who is a legendarytrial lawyer here in the Chicago
area and made him specialprosecutor and probably paid him
$1, 000 an hour to absolutelythrow the book at Juicy
Smoliette and charge him witheverything under the sun and
(34:27):
destroy him at trial and put himin prison. And I say good.
That's that I think thateveryone was, like, good. You
know?
That's was that a politicalprosecution? Absolutely. Yeah.
Was it a was it good that thatit was a political prosecution?
Also, yes.
So that's a, and by the way, wedid cover that on episode 13 of
(34:49):
the show if anyone wants to goback. So that's a separate I
think people are just missingthe point there where they're
like, well, it was this waspolitical wish. I'm like, okay.
Maybe it was. But, like, shouldit should it not have been?
And what's the alternative?Because wouldn't it be, like, a
political decision not toprosecute under the
circumstances? I mean and and isthat good? Are are you when you
(35:12):
have someone who is inherentlypolitical, who is involved with
an alleged crime that is itselfpolitical, this is campaign
contributions we're talkingabout, and his personal
reputation, which is obviously apart of his political identity,
then, the decision can only be 1way or the other politically.
You're gonna politically favorthis or you're gonna
(35:33):
politically, disfavor it, andyou have to choose.
There is no like, well, we'rejust gonna follow the straight
and narrow, you know, rule oflaw because the discretionary
part of the charges is builtinto the system. So, so long as
there is discretion at theprosecutorial level, then the
decision will always bepolitical. And so III think that
discussion is even worth having.You know? You could just say,
(35:56):
yes.
This was a politicalprosecution, and I think that
was good, or I think it was bad.And and those are different
things.
Danessa Watkins (36:03):
Mhmm. Yeah. No. And you you do it it's good that
you explained because I don'tknow that everyone understands
that that how much discretionprosecutors have, how much
discretion judges have.
Jack Sanker (36:15):
Mhmm.
Danessa Watkins (36:15):
So the idea that a party put this pressure
on a prosecutor, put thispressure on a judge, put this
pressure on a jury. I mean, it'sjust no. That's not how it
works. You know, Biden didn'tcause this to happen. Right.
Jack Sanker (36:32):
I mean, these are like, let's not mince words
here. Like, these are, you know,folks that got elected in in New
York. They're probablyregistered Democrats. Like, who
are we kidding? Of course, youknow, they probably are.
I'm sure the judge probably istoo because that's how you get
elected in in New York or anyplace that's majority democrat.
Like, that's just geography. Youknow? That That that that
(36:54):
shouldn't be news to anyone whopays attention.
Danessa Watkins (36:57):
Right. But the, yeah, but the concern would be
trying to say that because, youknow, they vote vote a certain
way that on the bench, they'regoing to decide things a certain
way or in making, you know,decisions on what charges to
bring that they're gonna make. II think to me, that's where the
concern comes in that. Now we'restarting to paint this picture
(37:17):
that our branches are meshingand there is no independence in
the judiciary. And we alreadyhave, you know, how many stories
have we covered just in a shortperiod of time about issues with
public opinion about ourjudicial process, and this is
just, I think, causing morealienation.
Jack Sanker (37:36):
Yeah. To me, again, it's just, like, it's not new
that judges or prosecutors arepeople with political opinions
and biases and things like that.That's not news to me. And I
think, to anyone who is shockedby that, it's like you haven't
been paying attention toeverything else. And we talk a
lot about on the show about thesupreme court, for example.
And, you know, on 1 hand, we sayall the time that we think that
(38:01):
there's quite a bit ofpolitical, negotiation happening
among the 9 justices, when theycome together and, you know,
ultimately decide something. So,of course, it's happening at the
district court level as well.But, like, that's that is the
process, and it has always beenthe process for, you know, the
entirety of the existence of therepublic. So, you know yeah. I
(38:23):
mean, maybe I'm being overlycynical because this is my job.
Danessa Watkins (38:29):
This is who you are.
Jack Sanker (38:30):
And maybe as our producer Kevin pointed out,
there's a a perception versusreality gap and what how the
judiciary likes to describeitself, of course, is impartial
arbiters of, you know, truth andjustice. Justice Roberts'
example of an umpire callingballs and strikes. But if you,
you know, really wanna get sortof of, my viewpoint is that I I
(38:53):
just don't buy that. So and Iand I never really have. And
once you do that, it's quitefreeing, actually.
So, now you can just approachthe world as it is and, you
know, don't
Danessa Watkins (39:03):
you don't have to get upset about it. Okay. So
I'm in a different side of thisthis discussion. I my concerns
here are definitely that, wehave people who are trying to
weaponize the judicial system,and my concern is that the
(39:24):
public will think that they havemore power to do that than they
do. I think we need to give somecredit to our prosecutors and
give some credit to our judgesin the fact they take their job
seriously and they uphold theirethical duties.
I mean, like you said, said,this this judge knew all eyes
were on him. This prosecutorknew all eyes were on their
(39:46):
office. I mean, they evenreading these articles about the
issues that could come up onappeal, I think you're right. I
think they kind of embellished alittle bit because there's no
way that they made these graveerrors knowing that the world
was watching.
Jack Sanker (40:02):
Yeah. I'm not saying there's no appellate
issues here. Don't get me wrong.But, like, I doubt that it's,
like, a routine obvious thingthat, you know, that they're
gonna get tripped up on here.It's probably gonna be something
quite nuanced.
Danessa Watkins (40:12):
Oh, for sure. Because, I mean, yeah, this is
this is a, you know, uniqueissue. You need
Jack Sanker (40:19):
And another thing to to consider here is, like,
the, you know, the the judges inNew York and the prosecutors in
New York and I don't actuallyknow if the judges in New York
are,
are elected or appointed. Andhere in Illinois, we have both,
but they're, they're oftenelected. So, like, there's a
(40:47):
well, ask yourself whichconstituents are these
prosecutors and judgesresponsible to? The people of
New York City who by and largeI'm sorry, New York State
rather, who by and large hateTrump. So so they did do what
they're supposed to do.
Do you know what I mean? Like,if there is if there's room for
if there's margin in to makethese discretionary calls, it
would not be ridiculous for themto sit down and say, boy, what
(41:09):
would the people who I have beenelected to represent want me to
do? And, like, on margin, theywould say go after him. You
know? Right?
Like, am I wrong about that?
Danessa Watkins (41:20):
I don't think you're wrong about it. I just
I'm always hesitant to that'ssuch an easy argument to make,
and I'm sure it's gonna be madeon appeal. And it's already
being made in the public, youknow, sphere that he didn't get
a fair shake because he was inNew York state court. I Which is
yeah. They're simplifying theissue.
Jack Sanker (41:39):
Yeah. I I get it. I I but I I also think it's, like
I don't know. It's I thinkpeople were are dancing around
this issue in a way that just, Ithink, misses the forest from
the trees, which is if he wastechnically guilty of these
things and seems I mean and Idon't know. I don't have
independent, you know,estimation of whether he was or
(42:00):
not, but the jury says he was.
And I I do have a lot of faithin the a jury's like, like, the
argument seems to be, well, hemight have been technically
guilty of these things, but thecharges should've never been
(42:22):
brought because, you know,that's just uncouth or that's
that's sort of a, that's AAAbridge too far for our system or
whatever. And my point is, don'tbe technically guilty of
felonies, and then go to a venuewhere most people hate you.
Mhmm. And don't do the feloniesin that venue.
Danessa Watkins (42:40):
Mhmm.
Jack Sanker (42:40):
I don't know. Like, it's not it is simple but yeah.
I I don't know. What what do youwant me to
Danessa Watkins (42:47):
So I wasn't gonna let you go into
Jack Sanker (42:49):
Sorry.
Danessa Watkins (42:50):
No. No. No. No. I wasn't gonna let you go into
the some of the things you read,but now it seems like it's
directly on point where you saidyou read opinion from This was
not
Jack Sanker (43:00):
in the New York Times. They do these amazing,
focus groups. It's Frank Luntzwho's, like, the legendary
republican pollster. I thinkhe's the 1 who did the 1 most
recently, the 1st week of, after1st week of June, I believe,
right after the, verdict cameout, and it was just a and it's
the undecideds. And theundecideds are that they get for
these things are incrediblebecause they are undecideds,
(43:22):
like, in the sense that theyhaven't decided whether they're
gonna even look up who'srunning.
So they're blank slate. And sothe opinions that you get out of
those focus groups are amazing.1 in particular really, jumped
out to me is just, like, so farin left field, but so, funny.
(43:43):
And and these are the people whowho, by the way, this is, like,
probably representative of,like, 65% of of registered
voters. Right?
You know, if you listen to thispodcast, you are not in this
group, for example. But the,there was an individual who, who
said something along the linesof, yes. I think it was
politically motivated. Yes. Ithink it was unfair.
(44:04):
Yes. It was a witch hunt.However, he's supposed to be the
president and he's how on earthdid he get caught paying a $130,
000 to a porn star that, like,is that's demonstrative of his
inability to to run thiscountry. You know? You should be
able to handle a little bribe toa porn star, if you're gonna be
(44:25):
president.
Like, it's a it's kind of and,that's kind of been balancing
around my head for the pastweek. I'm just, like, that's
actually a pretty astuteobservation, considering all the
things white collar criminalscan get away with Right. In this
country, especially rich ones,especially probably presidents.
Danessa Watkins (44:45):
So
Jack Sanker (44:46):
I don't know. Unforced error? Like, didn't
they didn't have to get caught.Mhmm. You know?
There's no and I think thatthis, this, kind of, you know,
Joe Everyman on the focus groupis published in New York Times
really hits the nail on thehead. Like, dude, what are you
doing?
Danessa Watkins (45:01):
Yeah.
Jack Sanker (45:01):
It's so easy to get away with stuff in that
position.
Danessa Watkins (45:03):
Yep.
Jack Sanker (45:06):
Oh, boy.
Danessa Watkins (45:06):
Oh, okay. New York New York City civil judges
are elected to 10 year terms.
Jack Sanker (45:12):
Elected. There's some elected, some appointed.
Danessa Watkins (45:14):
Oh, some are appointed?
Jack Sanker (45:15):
Okay. Yeah. So they have a democratic, small d
democratic, that they'resupposed to, in 1 capacity or
another, represent. So decidewhether or not you think that
happened here.
Danessa Watkins (45:35):
So I before we wrap this up, I do wanna give a
shout out to Ava Rosenberg. Sheis a summer intern here at
Amundson Davis. She's a studentat the School of Journalism and
Mass Communication at Universityof Wisconsin Madison, and she
helped do a lot of our researchfor this podcast. So we were
(45:57):
just taking a quick break andchatting about what we've been
talking about, and she broughtup an interesting point. Ava?
Ava Rosenberg (46:05):
Yeah. Obviously, I don't have all the facts on
this case, and I've only heardabout it recently.
Jack Sanker (46:11):
Neither are we. So We.
Ava Rosenberg (46:14):
OJ Simpson passing away, and I wasn't alive
during the trial, but, I'm I'menjoying learning about it and
reading it. But I was thinkingabout when Jack brought up,
like, celebrities being broughtto trial and the courts and how
it's, like, political and youcan't change that. And that's
(46:34):
how it is, and you have toaccept it about if it's
political to charge OJ Simpson.And, obviously, it was, like, a
different case. Case.
Like, murder is a very differentcharge than, a felony,
falsifying business recordscharge. But what I read about
the case, people, definitelyracialized it and kinda made it
a point that he shouldn't getconvicted because he is, like, a
(46:58):
role model to the blackcommunity, and, like, there were
very few at the time and insports. But what does that say
about our judiciary system? Andeven if that, like, that's only
1 of the arguments that wasbrought to the media, obviously.
Like, the jury made their ownopinions on the facts of the
case, but how that relates tobringing Trump to the stand and,
like, what that says about ourjudiciary.
Danessa Watkins (47:20):
Right. And you also raised the point about what
would you know, what did thepeople of California want out of
the OJ Simpson trial, which Ithink is an interesting question
too.
Jack Sanker (47:29):
Well, I think I think the OJ Simpson trial can
also be understood as, like, thethe LAPD trial. You know? And
then in in a lot of ways, theLAPD was on trial during that.
And, like, it's I'm not I'm notan expert. I'm not an OJ Simpson
versus the people of Californiascholar, but, there was quite a
(47:51):
bit of, you know, improper,policing and and overt racism
that was uncovered and,discussed at trial in front of
the jury.
So not that that's exactly whathappened here, but, yeah, the
venue matters, and, like, thepeople that are in your jury
pool matter, and your reputationmatters. And that's that should
(48:12):
not shock anyone, is my opinion.I think if people need to, like,
consider what the alternativewould be here. And with respect
to the Trump case, like, heagain, we're gonna operate on
the assumption that he'stechnically guilty of what he
was charged with because that'swhat the jury said. And I have
no reason to discount that atthis point.
(48:33):
If if you're technically guiltyof it, then your argument boils
down to, but I should've no. Ishould not have been charged
because of XYZ. Like, my becauseI
Danessa Watkins (48:41):
Usually, constitutional due process
rights were violated is is
Jack Sanker (48:45):
yeah. And if that's the case, I hope that the the
commission gets thrown out. Youknow? If if this was a if if
Trump's constitutional rightswere violated, then I then I
hope that the appellate court orI think it's the superior court
of New York I'm not sure how
Danessa Watkins (49:00):
The yeah. I think that I don't know. They
label their courts differently.
Jack Sanker (49:03):
Yeah. Yeah. Yeah. And then I hope that, you know,
that's addressed and andwhatever. And I hope that he
gets the same amount of justicein that regard as process
justice, as anyone inherentlyand by 200 plus years inherently
and by 200 plus years oftradition, by statutory law,
(49:27):
like, builds into the system thediscretion of the people
involved in it.
It's not an algorithm. You know?And so if the prosecutors and
the judges have, you know, a 20%margin in which they can kind of
go with their gut, then youcan't be mad that they, like,
looked at the vibe and went withtheir gut here, and they find
you, as a defendant repulsiveor, you know, or a good person
(49:55):
that we should cut some slackto. Like, that's that and that,
of course, leads itself to a lotof biases.
Danessa Watkins (50:00):
Like, you mentioned racial
Jack Sanker (50:00):
biases, of course. That 20%, percent, you know,
discretion or 30% discretion,whatever you wanna call it, is
gonna skew hard, towards, overprosecuting minorities. And if
someone has, you know, aninherent racial animus. But that
again, that's, like, that is thesystem that everyone has had and
(50:21):
including Trump. So I'd I'dthat's what bothers me most is
this idea that he's beingtreated any differently than
someone who was, you know,brought in off the street with
with a routine charge.
I I don't see that at all. Ithink it's in fact, the
complaint here is that he wasn'ttreated differently. Mhmm. And
that's, you know, cry harder.Well, I'm actually glad you
brought that around because Ithought you were going a
different way
Danessa Watkins (50:38):
with that. But yes. No. A 100%. And I agree
with you.
If if there were different waywith that. But yes. No. A 100%.
And I agree with you.
If if there were, you know, ifhe didn't have his due process
rights, if there are findings tothat effect at the appellate
court level, the supreme courtlevel, whatever it is, then,
yes, absolutely. Like, give himthe rights that he's owed. But,
yeah, at the end of the day, Imean, yeah, this is the system
(51:05):
we have. And, you know, thankyou 12 jurors for your service
because I would be shaking, youknow, sitting in their seats
trying to make this decision.And the fact that they came down
the way that they did, knowingthat Trump had already violated
all these gag orders and was youknow, like, they you know, their
safety's at risk.
Their family's safety's at risk,and they still did their job.
(51:27):
And so
Jack Sanker (51:29):
Yeah. I mean, you I think it boils down to if you
spend, like, the last roughly 6or 8 years, like, antagonizing a
certain subsection of thepopulation directly, like,
coastal liberals, for example,which, you know, we're not
coastal liberals, but we're inChicago. We're, you know, urban,
whatever. But if, like, getsyour whole personality for the
last 10 years is justantagonizing those folks at the,
(51:50):
you know, international level aspresident, it just whatever.
Like, don't be surprised whenthey have the opportunity to get
you back within the margins thatthey do.
You know? I just I wouldn't Iwouldn't do it that way if I
were him. That's just me.
Danessa Watkins (52:04):
You would commit your crimes in a in a red
state?
Jack Sanker (52:07):
I would I would I would not never commit a crime,
but if I did,
Danessa Watkins (52:12):
I would get I would get away with it. You
heard it here, folks. Be asmarter criminal is the Yeah.
The wrap up of this show. Nowthis was super interesting.
You know, there are definitelystill some open questions about
what's gonna happen. I don'tthink we'll know for a while. We
(52:35):
need to see what the sentencesare. We need to see what the
appeals look like. We need tosee what happens with these
other trials that are not gonnago probably before the November
24 election, but, you know,could bring up some interesting
legal issues, depending on howthose wind up.
So, yeah, again, this is notsupposed to be a politically
(52:57):
motivated leaning 1 way oranother. We are just trying to
bring every angle of ouranalysis to a highly political
case, and it's interesting. SoYeah. Alright. Well, that is our
show for today.
Remember to like us, follow us,subscribe on Apple, Spotify,
(53:22):
YouTube, wherever you get yourpodcasts. As a reminder, we're
coming out with new shows everyother week, so look for us on
every other Tuesday. Again,shout out to Ava Rosenberg for
helping us on this show andgiving her insights as well as
her, amazing legal researchskills. That's all we have for
(53:42):
now. We'll see you next time.
Welcome to Litigation Nation. I'm your
host, Jack Sanker, along withDanessa Watkins. This is the
show we talk about some of themost important and interesting
legal stories the past couple ofweeks. Danessa, what do we got
today?
Danessa Watkins (00:17):
Well, Jack, as you know, immediately after the
May 30, 2024 decision came down,finding Trump guilty of 30 4
charges of falsifying businessrecords, I pretty much
immediately texted you and saidwe need to do a show on this.
Yep. It's just it brings up somany interesting legal issues, a
(00:39):
lot of unknowns. We're kind ofin uncharted territory here. So
I thought it would beinteresting to scour the for
what the legal scholars aresaying about this and, have our
own little discussion about whatwe think all this means.
Jack Sanker (00:54):
Fantastic. Well, let's get into it. All that and
more, folks. Here's what youneed to know.
Danessa Watkins (01:10):
Alright. So just recently, we had, 12 jurors
in New York, all independentpeople, depending on who you
ask, I guess. They charged Trumpas guilty of 34 charges of
falsifying business records,which is a felony in New York.
And this boils down to asituation in 2006 when Trump and
(01:34):
Stormy Daniels, who is a pornstar actress, engaged in
extramarital sex, which Trumpdenies to this day. And after
that, when Trump was running forthe presidency in 2016, his what
we call former fixer, MichaelCohen, he testified that Trump
(01:55):
approved a $130, 000 hush moneypayment to miss Daniels.
Cohen handled the paymenthimself and testified that Trump
approved a plan to reimburse himthrough monthly payments
disguised as legal work. So thisis the substance of the
falsification of businessdocuments, allegations, and the
(02:18):
Manhattan District Attorneydecided to elevate the case to a
felony on grounds that Trump wasconcealing an illegal campaign
contribution. So the jury cameback, finding mister Trump
guilty on all 34 charges, andthis was a historic outcome in
our jurisprudence. This is thefirst former or sitting
(02:39):
president to be tried andconvicted of a felony crime. Now
this actually surprised mebecause thinking back, we have
certainly had some, characters,I guess, holding the presidency,
but, and ethics expert, RobertGordon.
(03:04):
So when asked whether there hadbeen former presidents tried
convicted of a felony, heanswered a resounding no. We all
usually think of Richard Nixon,who was named as an unindicted
coconspirator by the grand juryinvestigating the Watergate
crimes, but he was actuallypardoned by his successor,
Gerald Ford. Thinking way back,we have Aaron Burr, who was
(03:27):
Jefferson's vice president thatmight have been charged for
killing Alexander Hamilton in aduel, but was not. He was
actually indicted for treasonfor allegedly conspiring to lead
a rebellion against therepublic, but was eventually
acquitted.
Jack Sanker (03:41):
Didn't know that.
Danessa Watkins (03:42):
I don't know. Then another instance that
probably comes to mind quicklyis Bill Clinton, who faced
possible charges of perjury andobstruction of justice for lying
about his affair with MonicaLewinsky, but he was never
actually charged. He was,however, disbarred in Arkansas.
So that is actually probably thehighest level of discipline that
(04:05):
any of our former presidentshave faced up until this point.
Now this brings up a lot ofunknowns.
I wanna, though, start firstwith what can we expect next out
of this case because I think,certainly, we know that the
defense team is going to beappealing. But before we get to
(04:26):
that point, there is still asentencing hearing, which is
currently scheduled for July 11,2024, which happens to be just
days before the Republican PartyNational Convention in
Milwaukee. So depending on howthe sentencing goes, Trump mayor
may not be able to attend thatevent. But the the crimes that
(04:46):
he is charged with, they eachcarry a max sentence of 4 years
in prison, and those would runconcurrently. So it's not like
he would get 4 years times 34.
They would all run at the sametime. But there's also no
minimum sentence. So this givesthe judge a lot of discretion.
He could issue a fine. He coulddo probation.
(05:08):
Trump could be confined in hishome, under supervision, or he
could actually be behind bars.So these these 34 charges are
all class e felonies in NewYork, which is the lowest tier.
The prosecutors have not yetdisclosed what they're going to
be asking for during sentencing,but the judge will be able to
(05:29):
take a lot of things intoconsideration. I guess pro Trump
is the fact that he is a firsttime convicted offender, that
this was a nonviolent whitecollar crime. He's 77 years old,
and we expect that he will bepresenting a number of character
letters from friends and familyto help guide the judge.
(05:51):
But on the other hand, the judgecould certainly consider the
fact that Trump had numerousviolations of the gag orders
during his trial.
Jack Sanker (05:58):
I think there were 10 contempt orders entered on
this case.
Danessa Watkins (06:02):
I believe so. I think he ends up didn't he get
fined for
Jack Sanker (06:05):
10, 000 he's lost? A lot of money relative to what
type of cases is, but there are10 contempt orders, and that is
proper for the judge to considerthat when sentencing.
Danessa Watkins (06:15):
Right. Right. So even if he is, though,
sentenced to incarceration, hecan ask the, the trial court
judge or the appeals court forbail pending appeal so that he
can stay out of custody while hechallenges his conviction. You
know, typically, those type ofhearings, they look at whether
(06:35):
someone is a flight risk, whichI think he's not, despite his
money. We know that he's runningfor the presidency.
So
Jack Sanker (06:42):
Where would he go?
Danessa Watkins (06:43):
Yeah. Exactly. Not Europe.
Jack Sanker (06:46):
Who would I I don't know. Yeah.
Danessa Watkins (06:49):
Argentina? Come in. Yeah. Maybe. So, you know,
we've got another month to seewhat happens at that sentencing
hearing.
And then after that is whenTrump's team can move for an
appeal. Now the appeal processcould take it it certainly will
take more than a year. It couldbe more than 2 years, actually,
(07:10):
depending on how far it goes up.He will appeal to the state
court, appellate court, but thiscould eventually go all the way
up to the US Supreme Court, justgiven the issues that are
involved here. So we havescoured the Internet looking for
everything everything from legalscholars to just, you know,
(07:31):
people off the streets, talkingabout what are the potential
issues for appeal here.
1 that came up most often wasthis issue of the extent of
Stormy Daniels' testimony. Soduring the trial trial at 2
separate occasions, the Trumpdefense team asked for a
mistrial because Daniel'stestimony was just going, I
(07:55):
guess, really into privateissues that maybe
Jack Sanker (07:58):
She was given a lot of sex details.
Danessa Watkins (07:59):
Yeah. That that really didn't have any bearing
on on the issues, but the judgedid allow it. You know, it's
definitely the fact that she wastalking about him having a
extramarital affair, not usingprotection.
Jack Sanker (08:14):
So, as I understand, the what happened
here and this would require apretty in-depth review of the
trial court transcript, which,you know, we don't have the time
to do. But as I understand, theTrump, defense team here made a
standing objection to, this typeof testimony at the outset,
probably in a motion of limineor something like that. The
(08:35):
judge reserved ruling, and thenStormy went up there and
testified, and they renewedtheir objection after the fact,
at which point the judge said,sorry. It's not a time in the
objection. You've waived.
So I don't the judgesubstantively ruled whether it
was missable admissible or ornot. It was a, timeliness
aspect, which, you know, forthose of you who are listening
(08:56):
that try cases, you all know,absent an agreement, at word
order to the other way to theopposite effect, you do have to
renew your objection every time.And that's, renew your objection
every time. And that's you know,that could be on the lawyers
here. I don't know.
Danessa Watkins (09:10):
Okay. That's interesting. Yeah. I hadn't I
hadn't heard about that 1.
Jack Sanker (09:15):
Because, by the way, if you review the the
actual testament that she'stalking about, I was like, how
on earth did this come in?
Danessa Watkins (09:20):
Mhmm.
Jack Sanker (09:20):
Because it's like, you you don't need to talk about
this stuff to convict him of adocuments charge.
Danessa Watkins (09:26):
Right. Right. And I think I and I didn't look
into this 1 too deeply, but Ithink there was other other
information that came in thatreally wasn't pertinent, like
his his other cases potentially,I think, with Gene Carroll.
Jack Sanker (09:42):
Yeah. I mean, a reoccurring theme of all of, the
Trump legal problems, and Idon't know these lawyers, and I
don't know and, I I mean, Idon't know anything about them,
and I'm but I'm basing it on thereputation of some of his other
represent of his otherrepresentation and other matters
is Trump hires the weirdestlawyers in America, that's just
(10:03):
been his MO for as long as he'sbeen on the scene. They're
usually quite weird and usuallyhave I'm sorry. But they are
just, so there's a lot of, like,things that happen during Trump
trials that don't happen if justa normal attorney was
representing him. Mhmm.
I don't know if that's the casehere, but that would be, par for
(10:26):
the course.
Danessa Watkins (10:27):
Like a creation of chaos situation? Yeah.
Jack Sanker (10:30):
I mean, you remember the guy with the
mustache and the the he lookedlike colonel Sanders? Like, it's
always some someone like that.Mhmm. I'm sorry. But anyways.
Danessa Watkins (10:41):
Just a way to throw things and, you know, just
maybe distract. It it could bethat those are slim pickings
when he comes down down topicking his We
Jack Sanker (10:49):
just he he keeps not paying them, and then his
last personal attorney is injail. So Right. Yes. He is
getting, like, the loony tunelawyers. Like, that's all he's
getting.
Anyways, go ahead.
Danessa Watkins (11:01):
Alright. Well, we'll see how that plays out at
the appeal level. But, alright.Other potential basis for
appeal, and this 1 probably hasmore teeth than others. There's
this issue about whether the theprosecutor was, was direct
(11:21):
enough about what charges he wasbringing and what Trump was
actually on trial for.
Jack Sanker (11:30):
Yes. So this is if if you mind if I jump in on
this, because you were talkingabout the decision, of the
prosecutors to charge Trump withfelonies. So, typically, as I
understand it, the, thisbusiness record falsification
charge or whatever is usually amisdemeanor.
Danessa Watkins (11:45):
Correct.
Jack Sanker (11:45):
But it gets it can be brought as felony charge if
the, prosecutors areestablishing that, the the
falsification of the documentswas done in an attempt to commit
or conceal a separate underlyingcrime. And here, as I understand
(12:06):
it, Trump was charged with thisfelony level falsifying business
records, charges of 34 counts ofit, because he falsified records
to conceal a separate violationof New York, election law which
prohibits conspiring to promotepolitical candidate, in this
case, Trump himself, throughunlawful means. So that is the
(12:29):
hush money paid to Daniels whichwas allegedly paid with campaign
contributions. So it it kind ofstacks here. Yep.
It's interesting though thatthat charge that this is, like
that the otherwise misdemeanorsare resting on, has not been
adjudicated. So it's, you know,it's a the jury had to basically
(12:51):
believe that he was guilty ofanother crime or likely to
guilty of another crime, beforethey could even get to, whether
he's guilty of these, like,felony counts and, you know,
unanimously, they did.
Danessa Watkins (13:04):
Right. So, yeah, to break it down a little
bit. So the I don't thinkthere's any case law on this
issue. So it it may be 1 of thefirst times where a state
prosecutor has invoked anuncharged federal crimes, this
election fraud, and there'squestions about whether that
should've removed the case evenfrom the state court to the
(13:26):
federal court level to beginwith, whether whether this court
even had jurisdiction over thematter. But, yes, it was
essentially asking the jury toassume something, but it also,
in doing that, didn't give thiswould be the argument.
Didn't give Trump the dueprocess of timely receiving
(13:46):
notice of the crime that heallegedly intended to commit
because the prosecutors weren't,you know, so specific about it.
Jack Sanker (13:53):
That's been the spin afterwards, but, I mean,
it's in the pleadings. Like,it's it's, you know, the
citation to the New York statuteor whatever, like, it's it's
it's there. Well, I
Danessa Watkins (14:05):
think what the you've read that the definition
of that statute. I think thepart that is vague is the
unlawful means. So what were theunlawful means that he was using
in order to, you know, furtherthis crime.
Jack Sanker (14:20):
So here's here's the I actually have the, the
falsifying business records inthe first degree, felony statute
from state of New York here.Section, 175.10 of the, I guess,
penal code in New York.Falsifying business records in
the first degree, a person isguilty of falsifying business
(14:41):
records in the first degree whenhe commits the crime of
falsifying business records inthe second degree, and when his
intent to defraud includes anintent to commit another crime
or to aid or conceal thecommission thereof. Falsifying
business records in the firstdegree is a class e felony. So
you don't have to be guilty, bythe way, per the statute.
You don't have to be guilty ofanother crime. You have to have
(15:02):
intent to commit another crime.So that is a different that's a
different standard.
Danessa Watkins (15:07):
Okay. Yeah. That makes sense. The Wall
Street Journal, put out anarticle when was this? June 4th.
So right after after thesedecisions came down. But they
kinda described itinterestingly. So, quote, to
recap, the prosecution involved1, a misdemeanor elevated to a
felony based on an intent tocommit another crime. 2, an
(15:31):
indictment and trial that failedto specify or present evidence
establishing another crime thedefendant intended to commit.
And 3, a jury instruction thatthe other crime was 1 that
necessitated further proof ofunlawful means.
It's a Russian nesting dolltheory of criminality. The
charged crime hinged on theintent to commit another
(15:51):
unspecified crime, which in turnhinged on the actual commission
of yet another unspecifiedoffense. I mean, when you put it
that way
Jack Sanker (15:59):
Sure.
Danessa Watkins (15:59):
It's But I and, again, we we haven't, you know,
read all of the the trialhearing documents. We don't know
Jack Sanker (16:06):
Right.
Danessa Watkins (16:06):
You know, what the prosecutors said, how they
said it, what was disclosed tothe defense team.
Jack Sanker (16:11):
I fundamentally reject this premise that the
defense was caught completelyflat footed when it came to
closing arguments, and they hadno idea at all what was going
on. This is a case that is theywould have spent 100 of hours
preparing for. There would havebeen multiple pretrial
conferences. I just I understandthat that's kind of the
(16:33):
narrative. And this is settingaside, like, we're not gonna get
into, you know, whether this wasfair or not or whatever.
But I do think that this is,like, as the kids would call it,
cope. They're just making,people are making excuses here.
I mean, I I don't know. I I justreject the premise outright.
Yeah.
Danessa Watkins (16:49):
I don't know the term cope. They're coping.
It's Like a coping mechanism?Copium.
Jack Sanker (16:54):
Copium. You want kids. I don't know. You're just
making stuff up to You know whatI'm talking
Danessa Watkins (17:13):
Okay. Fair. Alright. So that that I think is
1 of the arguments that probablypeople have analyzed the most
from a legal standpoint. Mhmm.
But the let's see. Another 1that definitely goes to a lot of
issues of legality are theinstructions to the jury. So I
(17:35):
did look up exactly what theinstructions were, and the judge
said, quote, although you mustconclude unanimously that the
defendant conspired to promoteor prevent the election of any
person to a public office byunlawful means, you need not be
unanimous as to what thoseunlawful means were, unquote. So
(17:55):
the argument then on appealwould potentially be that in in
criminal court, you need to beconvicted unanimously of a
crime, and here, the instructionwas, you know, that the jury
didn't have to come to thatunanimous decision. Now this was
this comes from a Supreme Courtruling from 1991, Shadd versus
(18:17):
Arizona.
This was a murder case where itwas found to violate the due
process clause for a state toconvict someone under a charge
of crime, so generic that itcould be any combination of jury
findings of embezzlement,reckless driving, murder,
burglary, tax evasion, or evenjust littering, for example. You
(18:37):
know, when you have a jury thatcan find all these different
aspects of wrongdoing and thenissue a conviction potentially
based on different findings,that is considered a violation
of due process rights.
Jack Sanker (18:50):
Yeah. I wonder where this instruction came
from. And for those of youlistening, in most
jurisdictions, there's gonna bewhat what are called pattern
instructions. And the patterninstructions are, for the most
part, have been approved andvetted either by some, you know,
state affiliated baradministration or by the supreme
court and the state itself. Andand these are the jury
(19:11):
instructions that are gonna thatare going to be used 9 9% of the
time.
They're going to be, safe to usein the sense that you're not
gonna catch an appeal from it,and there's you're not really
gonna get many objections to it.They'll be tweaked, based on the
facts of the case 1 way or theother. So I I don't know where
this particular instruction camefrom if it was if there was a
pattern for it or not. But ifthere was, again, this is 1 of
(19:36):
those things where, like, peoplemay be making a bigger deal out
of it than it is. III don'tknow.
It's but if there's if this is apattern instruction and and
because there's so much scrutinyon this case, by the way, this
judge is gonna be catching anincredible amount of media
scrutiny. So is the jury. So arethe lawyers and prosecutors and
everyone else. If there was apattern instruction available, I
(19:57):
would bet my law license theyused it.
Danessa Watkins (19:59):
Right. But
Jack Sanker (20:00):
I don't know if there was for such a niche
charge. Mhmm. So yeah.
Danessa Watkins (20:06):
Yeah. Especially when the like you
said earlier that thisparticular, section of the code
in New York doesn't usually getused, as to to bring felony
charges.
Jack Sanker (20:16):
Right.
Danessa Watkins (20:18):
So we'll see what happens with that potential
argument. The last 1 I found,and I'm sure there's a ton, but,
1 that could be put forward, andI don't think it's going
anywhere, but, that the gagorder that restricted Trump's
public statements aboutwitnesses violated his rights. I
I mean Okay. Yeah. I I wouldn'tbe surprised if that got thrown
(20:41):
in in the end, but, I mean, youknow, that that's ridiculous.
Jack Sanker (20:45):
Yeah. Right. I just yeah.
Danessa Watkins (20:48):
Okay. So we will probably follow-up more on,
you know, whatever happens withthis appeal. But the questions
that I got texted by familymembers almost immediately were
the more fun ones. Like, canTrump run for president? Can he
(21:10):
vote?
What happens if he wins? So Iwanted to dig into this a little
bit because these areinteresting questions, and, like
I said at the beginning, kind ofuncharted waters. But some of
them, we actually do haveanswers for. So first, can he
run? Yes.
He can. The eligibilityrequirements for presidential
(21:32):
candidates are actually few innumber. You have to be 35 years
old, a natural born US citizen,and have lived in the US for at
least 14 years. So there are norules blocking candidates with
criminal records, and thisactually wouldn't Debs ran for
(21:57):
Debs ran for the Socialist Partyticket back in 1920, and he
garnered almost a 1000000 votes.At the time he ran, he was
actually serving a prisonsentence for speaking out
against America's involvement inWorld War 1, which at the time
violated the recently passedAct.
So mister Debs did not win, buthe was on the ballot and did
(22:19):
receive votes.
Jack Sanker (22:20):
And a 1, 000, 000 votes in 1920 is a lot.
Danessa Watkins (22:23):
I think it ended up being, like, 3%.
Jack Sanker (22:25):
That's a lot. Yeah.
Danessa Watkins (22:26):
So mhmm. So, yes, Trump can still be on the
ballot. But can he vote? Nowthis was kind of interesting
because it's it looks at bothwhere is Trump a resident and
where was he convicted. So underFlorida law, which is where
Trump legally resides, a personwith a felony conviction from
(22:48):
another state is ineligible tovote only if the conviction
would make the purse personineligible to vote in the state
where convicted.
So lucky for Trump, in New York,felons are allowed to vote so
long as they are not currentlyincarcerated. So unless he is
behind bars on election day,which by then, then, he will
(23:08):
have filed an appeal of an youknow, if there is a sentence
that puts him behind bars, thenthen he can vote. So
Jack Sanker (23:16):
Oh, well, at least he didn't lose that 1 vote.
Danessa Watkins (23:19):
Yep. I wonder if It may may be the decider.
Jack Sanker (23:22):
Who do you think he's gonna vote for?
Danessa Watkins (23:24):
Man. Oh, man. I don't know. I guess it depends
on what his sentence is.Alright.
Next 1. If elected, can hepardon himself? So this 1, in
this particular case, no.Presidents can issue pardons for
individuals who have committedfederal offenses, but this is a
(23:45):
state law offense. So the onlyperson that could issue a pardon
for him would be the governor ofNew York.
But, you know, given New York isa blue state, I think it would
be highly unlikely that, thegovernor would come to his aid
here. Right. But this does raiseinteresting questions for the
(24:06):
the other cases that are pendingagainst him right now.
Jack Sanker (24:09):
Like the federal, election case.
Danessa Watkins (24:12):
Yeah. So, he has 1 that is involving
mishandling of classifieddocuments. There's a Trump
appointed judge in Florida onthat case who has indefinitely
postponed the trial because hesaid they need to resolve
questions about evidence beforesetting a date. So that one's
not gonna move forward anytimesoon. But, yeah, yes, the
(24:35):
conspiring to overturn the 2020election, that is currently
delayed for an appeal that wasfiled by Trump's camp.
So, I don't think we'll seetrials in those matters anytime
soon, but it does leave thatopen question. If he was
convicted, could he issue hisown pardon?
Jack Sanker (24:57):
It would be weird if he could. Could. But, I mean,
ultimate, he could just resignwith 1 day left in his term and
then have the VP do it. Youknow? Uh-huh.
That's what Nixon did. Yeah. Imean, he didn't resign with 1
day left in his term, but, yeah,he could just do that. So Right.
For the federal charges.
If he if he wins election, heand his VP can can make the
(25:17):
federal charges go away, Ithink, is
Danessa Watkins (25:20):
Oh, I hadn't thought of that angle. Yeah.
Yeah. It's interesting.
Jack Sanker (25:22):
So it's so, by the way, the choice of his VP then
becomes very interesting.
Danessa Watkins (25:27):
Yeah.
Jack Sanker (25:27):
And that'll be I'm sure that'll be something that
is, like, talked about in leadup to the election. So he's
going to have to pick someonethat he can count on to pardon
him Mhmm. Which is, interestingcriteria.
Danessa Watkins (25:38):
Right. Which may not necessarily be the best
candidate.
Jack Sanker (25:42):
Well, I mean, do you think Mike Pence would have
pardoned him after January 6th?If if so if there was a if there
was a felony conviction afterthat?
Danessa Watkins (25:47):
I would say no.
Jack Sanker (25:48):
Exactly. So Trump's gonna be, like he's gonna be
looking for a VP here that islocked up to pardon. That'd be
very interesting.
Danessa Watkins (25:57):
Oh my goodness. Yeah. He's yeah. Sends out a
brochure, like, check yes or noand blah blah blah. And number 1
question, would you pardon me?
Jack Sanker (26:05):
Yeah. Yeah.
Danessa Watkins (26:06):
Oh my goodness. Okay. Well, there's that. He
also has that that case pendingin Georgia right now, where he's
being accused of criminallyconspiring to, I guess, what was
it, overturn? Or I think he wastrying to get the election
officials to do a recount oroverturn the Biden win.
Jack Sanker (26:27):
This was the case when he called the, election
official in Georgia whose whosename, escapes me right now, and
effectively told the guy, I needyou to find me
Danessa Watkins (26:39):
Find me votes. Right?
Jack Sanker (26:40):
Find me the exact amount of votes I need to win,
please. Yeah. Yeah. And doesthat account or does that amount
to, you know, an attempt to fixthe election?
Danessa Watkins (26:50):
Right. Right. So, again, that is a that's
under state law, is myunderstanding. So Right. Even if
convicted there, that wouldn'tbe something that he or his vice
president, if he took over thereins or she took over the
reins, would be able to pardonhim for.
That would come down toGeorgia's governor. Alright. So
(27:14):
another question, if sentencedto incarceration, what happens
if he's elected president? Ithink from what I've read, most
people are in agreement thatTrump would likely receive a
stay on his custody sentencewhile in office to prevent
interference with his officialduties at present Oh my god.
(27:37):
Which I guess, you know, aremore important than.
Jack Sanker (27:39):
Can you imagine if he has to wear, like, an ankle
bracelet the entire for 4 years
Danessa Watkins (27:43):
Oh my gosh.
Jack Sanker (27:44):
And, like, he he's I
Danessa Watkins (27:45):
mean, I think he wouldn't would he be able to
leave the United States?
Jack Sanker (27:49):
I feel like there would be exceptions made that
would like, for the the benefitof keeping the government
functioning.
Danessa Watkins (27:56):
Right.
Jack Sanker (27:56):
You know? Yeah. You couldn't have, like, a parole
officer, like, showing up to theUN, you know, and being, like,
what do you hey. You've gottacome back or whatever.
Danessa Watkins (28:06):
I don't mean to laugh because it I mean, it's
ultimately very embarrassing.
Jack Sanker (28:11):
It's deeply funny. It's The more you think about
it, the more funny it becomes,actually. That's that's the
attitude I've taken.
Danessa Watkins (28:17):
I guess you have to. You You have to have a
sense of humor about thesethings, but, I'm just trying to
find the intelligent legalconversations we can have about
it because, I mean, why not turnthis into a, you know, crazy law
school essay at the end of thesemester?
Jack Sanker (28:34):
Oh my god. It's gonna be law school hypos
Danessa Watkins (28:36):
Yeah.
Jack Sanker (28:36):
For this for sure. The crim pro, finals for the
next, next semester are gonna be
Danessa Watkins (28:43):
Oh, yeah.
Jack Sanker (28:43):
All about this.
Danessa Watkins (28:44):
For sure.
Jack Sanker (28:45):
Criminal procedure. It's a class we all have to take
or most of us have to take toget graduate law school.
Danessa Watkins (28:49):
Yeah. Constitutional law is another 1.
Yeah. These these will prove tobe good essay questions. So all
you law students listening, Iwould say read up on your local
news and scholars and blogs andget your answers ready.
Alright. Now kinda more broadly.So what does this mean generally
(29:13):
for our political landscape and,you know, the the issues that
now the judiciary is ispotentially going to face. So on
the 1 hand, you know, thisverdict is definitely a powerful
demonstration that our country,that the rule of law is upheld
equally against all citizens. Sono American is above the law.
(29:35):
If, you know, even a former headof state can't escape facing the
music, then our judicialinstitutions are just
inequitable and operating asthey should. But on the other
hand, and we've already startedto see this play out in the
media, our judiciary isdefinitely facing 1 of the most
ferocious political attacks inits history. We have members of
(29:57):
the Republican Party andcertainly Trump himself that are
directly challenging thefairness of the ruling, calling
the progress rigged, and evenreferring to the judge the
devil. So, you know,historically, of course, our
system of justice has beenaccused of multiple fallacies.
(30:19):
The 1 that comes to mind mostreadily is systematic racism,
which, you know, at times hasbeen proven true and has led to
positive change.
Just a couple examples. We'vehad jurisdictions that have
started to look more closely at,like, routine police stops,
practices of local authorities,which has improved training and
(30:40):
and focused them on recognizingracial bias and profiling. We've
seen changes in our sentencingguidelines. You know, 1 example
would be the harsher sentencesthat were handed down for crack
versus cocaine based on, youknow, the the typical users of
those substances despite thefact that they were pretty much
(31:01):
identical. The substances, thatis, not the users.
We've seen, probably even tothis day, pretrial releases
being granted more often forwhite offenders. Plea bargains
being more frequently offered towhite offenders. Even use of the
death penalty. It still shows,you know, clear evidence of
(31:23):
racism, which I think a lot ofjurisdictions are trying to
address, but, you know, thenumbers don't lie. And this
isn't just in, southern states.
I found, well, it was 2012, so alittle bit dated now, but it was
a study of Delaware's practicesdone by the Cornell University
Law School, and it found, quote,black defendants who kill white
(31:46):
victims are 7 times as likely toreceive the death penalty as our
black defendants who kill blackvictims, end quote. So, you
know, it's it's definitely not anew issue having our judicial
system under attack as beingunfair, but this it just rings a
little different. You know? Nowwe have this white millionaire,
(32:07):
billionaire businessman, aformer president, charged and
convicted, and he's using hisplatform to call the system
unfair, biased, rigged. It itjust brings, you know, a
different, I don't know, angleon this
Jack Sanker (32:20):
You know problem. The I mean, ultimately, the the
discussion here is, like, wasthis a, like, quote, unquote
political prosecution? And I Ithink that that question sort of
I don't really know if that's ahelpful question to even ask
because to me, of course, itwas. Every prosecution of anyone
who's a public figure is in 1way or another a political
(32:41):
decision. And a lot of peopledon't know prosecutors have the
discretion of what charges tobring and whether not to bring
charges in the 1st place.
And that's just, like, up to theprosecutors. They can just kinda
go with what they feel like.There are folks that you would
be surprised aren't charged forthings all the time. And there
are folks who when you when youlook at the what the charges
(33:02):
have been brought against them,you're like, holy crap. This is
seems like overkill.
And that's up to the prosecutor.So, so, you know, if you're
gonna make that point that thiswas a politically motivated
prosecution, I would say yes andso what? That's every
prosecution that you could thinkof. You know? Like and by the
(33:24):
way, the second question is, isthat bad?
And I and I don't know. Youknow? III think I'll give you a
great example, that comes tomind. In Chicago a couple years
ago, probably everyone remembersthe, Juicy Smoliette incident.
This was the, TV actor who,faked a racist attack, here in
(33:45):
Chicago, I honestly, I think forattention, and in the process,
kind of slandered the the cityand the police officers.
And, the city spent a lot ofresources and a lot of time, and
there was there was all sorts ofup uproar about it and
everything else, and turned outto to be entirely fake. And the
(34:05):
city of Chicago went out andhired a, rather the typical,
state's attorneys, they went outand hired a private, attorney,
Daniel Webb, who is a legendarytrial lawyer here in the Chicago
area and made him specialprosecutor and probably paid him
$1, 000 an hour to absolutelythrow the book at Juicy
Smoliette and charge him witheverything under the sun and
(34:27):
destroy him at trial and put himin prison. And I say good.
That's that I think thateveryone was, like, good. You
know?
That's was that a politicalprosecution? Absolutely. Yeah.
Was it a was it good that thatit was a political prosecution?
Also, yes.
So that's a, and by the way, wedid cover that on episode 13 of
(34:49):
the show if anyone wants to goback. So that's a separate I
think people are just missingthe point there where they're
like, well, it was this waspolitical wish. I'm like, okay.
Maybe it was. But, like, shouldit should it not have been?
And what's the alternative?Because wouldn't it be, like, a
political decision not toprosecute under the
circumstances? I mean and and isthat good? Are are you when you
(35:12):
have someone who is inherentlypolitical, who is involved with
an alleged crime that is itselfpolitical, this is campaign
contributions we're talkingabout, and his personal
reputation, which is obviously apart of his political identity,
then, the decision can only be 1way or the other politically.
You're gonna politically favorthis or you're gonna
(35:33):
politically, disfavor it, andyou have to choose.
There is no like, well, we'rejust gonna follow the straight
and narrow, you know, rule oflaw because the discretionary
part of the charges is builtinto the system. So, so long as
there is discretion at theprosecutorial level, then the
decision will always bepolitical. And so III think that
discussion is even worth having.You know? You could just say,
(35:56):
yes.
This was a politicalprosecution, and I think that
was good, or I think it was bad.And and those are different
things.
Danessa Watkins (36:03):
Mhmm. Yeah. No. And you you do it it's good that
you explained because I don'tknow that everyone understands
that that how much discretionprosecutors have, how much
discretion judges have.
Jack Sanker (36:15):
Mhmm.
Danessa Watkins (36:15):
So the idea that a party put this pressure
on a prosecutor, put thispressure on a judge, put this
pressure on a jury. I mean, it'sjust no. That's not how it
works. You know, Biden didn'tcause this to happen. Right.
Jack Sanker (36:32):
I mean, these are like, let's not mince words
here. Like, these are, you know,folks that got elected in in New
York. They're probablyregistered Democrats. Like, who
are we kidding? Of course, youknow, they probably are.
I'm sure the judge probably istoo because that's how you get
elected in in New York or anyplace that's majority democrat.
Like, that's just geography. Youknow? That That that that
(36:54):
shouldn't be news to anyone whopays attention.
Danessa Watkins (36:57):
Right. But the, yeah, but the concern would be
trying to say that because, youknow, they vote vote a certain
way that on the bench, they'regoing to decide things a certain
way or in making, you know,decisions on what charges to
bring that they're gonna make. II think to me, that's where the
concern comes in that. Now we'restarting to paint this picture
(37:17):
that our branches are meshingand there is no independence in
the judiciary. And we alreadyhave, you know, how many stories
have we covered just in a shortperiod of time about issues with
public opinion about ourjudicial process, and this is
just, I think, causing morealienation.
Jack Sanker (37:36):
Yeah. To me, again, it's just, like, it's not new
that judges or prosecutors arepeople with political opinions
and biases and things like that.That's not news to me. And I
think, to anyone who is shockedby that, it's like you haven't
been paying attention toeverything else. And we talk a
lot about on the show about thesupreme court, for example.
And, you know, on 1 hand, we sayall the time that we think that
(38:01):
there's quite a bit ofpolitical, negotiation happening
among the 9 justices, when theycome together and, you know,
ultimately decide something. So,of course, it's happening at the
district court level as well.But, like, that's that is the
process, and it has always beenthe process for, you know, the
entirety of the existence of therepublic. So, you know yeah. I
(38:23):
mean, maybe I'm being overlycynical because this is my job.
Danessa Watkins (38:29):
This is who you are.
Jack Sanker (38:30):
And maybe as our producer Kevin pointed out,
there's a a perception versusreality gap and what how the
judiciary likes to describeitself, of course, is impartial
arbiters of, you know, truth andjustice. Justice Roberts'
example of an umpire callingballs and strikes. But if you,
you know, really wanna get sortof of, my viewpoint is that I I
(38:53):
just don't buy that. So and Iand I never really have. And
once you do that, it's quitefreeing, actually.
So, now you can just approachthe world as it is and, you
know, don't
Danessa Watkins (39:03):
you don't have to get upset about it. Okay. So
I'm in a different side of thisthis discussion. I my concerns
here are definitely that, wehave people who are trying to
weaponize the judicial system,and my concern is that the
(39:24):
public will think that they havemore power to do that than they
do. I think we need to give somecredit to our prosecutors and
give some credit to our judgesin the fact they take their job
seriously and they uphold theirethical duties.
I mean, like you said, said,this this judge knew all eyes
were on him. This prosecutorknew all eyes were on their
(39:46):
office. I mean, they evenreading these articles about the
issues that could come up onappeal, I think you're right. I
think they kind of embellished alittle bit because there's no
way that they made these graveerrors knowing that the world
was watching.
Jack Sanker (40:02):
Yeah. I'm not saying there's no appellate
issues here. Don't get me wrong.But, like, I doubt that it's,
like, a routine obvious thingthat, you know, that they're
gonna get tripped up on here.It's probably gonna be something
quite nuanced.
Danessa Watkins (40:12):
Oh, for sure. Because, I mean, yeah, this is
this is a, you know, uniqueissue. You need
Jack Sanker (40:19):
And another thing to to consider here is, like,
the, you know, the the judges inNew York and the prosecutors in
New York and I don't actuallyknow if the judges in New York
are,
are elected or appointed. Andhere in Illinois, we have both,
but they're, they're oftenelected. So, like, there's a
(40:47):
well, ask yourself whichconstituents are these
prosecutors and judgesresponsible to? The people of
New York City who by and largeI'm sorry, New York State
rather, who by and large hateTrump. So so they did do what
they're supposed to do.
Do you know what I mean? Like,if there is if there's room for
if there's margin in to makethese discretionary calls, it
would not be ridiculous for themto sit down and say, boy, what
(41:09):
would the people who I have beenelected to represent want me to
do? And, like, on margin, theywould say go after him. You
know? Right?
Like, am I wrong about that?
Danessa Watkins (41:20):
I don't think you're wrong about it. I just
I'm always hesitant to that'ssuch an easy argument to make,
and I'm sure it's gonna be madeon appeal. And it's already
being made in the public, youknow, sphere that he didn't get
a fair shake because he was inNew York state court. I Which is
yeah. They're simplifying theissue.
Jack Sanker (41:39):
Yeah. I I get it. I I but I I also think it's, like
I don't know. It's I thinkpeople were are dancing around
this issue in a way that just, Ithink, misses the forest from
the trees, which is if he wastechnically guilty of these
things and seems I mean and Idon't know. I don't have
independent, you know,estimation of whether he was or
(42:00):
not, but the jury says he was.
And I I do have a lot of faithin the a jury's like, like, the
argument seems to be, well, hemight have been technically
guilty of these things, but thecharges should've never been
(42:22):
brought because, you know,that's just uncouth or that's
that's sort of a, that's AAAbridge too far for our system or
whatever. And my point is, don'tbe technically guilty of
felonies, and then go to a venuewhere most people hate you.
Mhmm. And don't do the feloniesin that venue.
Danessa Watkins (42:40):
Mhmm.
Jack Sanker (42:40):
I don't know. Like, it's not it is simple but yeah.
I I don't know. What what do youwant me to
Danessa Watkins (42:47):
So I wasn't gonna let you go into
Jack Sanker (42:49):
Sorry.
Danessa Watkins (42:50):
No. No. No. No. I wasn't gonna let you go into
the some of the things you read,but now it seems like it's
directly on point where you saidyou read opinion from This was
not
Jack Sanker (43:00):
in the New York Times. They do these amazing,
focus groups. It's Frank Luntzwho's, like, the legendary
republican pollster. I thinkhe's the 1 who did the 1 most
recently, the 1st week of, after1st week of June, I believe,
right after the, verdict cameout, and it was just a and it's
the undecideds. And theundecideds are that they get for
these things are incrediblebecause they are undecideds,
(43:22):
like, in the sense that theyhaven't decided whether they're
gonna even look up who'srunning.
So they're blank slate. And sothe opinions that you get out of
those focus groups are amazing.1 in particular really, jumped
out to me is just, like, so farin left field, but so, funny.
(43:43):
And and these are the people whowho, by the way, this is, like,
probably representative of,like, 65% of of registered
voters. Right?
You know, if you listen to thispodcast, you are not in this
group, for example. But the,there was an individual who, who
said something along the linesof, yes. I think it was
politically motivated. Yes. Ithink it was unfair.
(44:04):
Yes. It was a witch hunt.However, he's supposed to be the
president and he's how on earthdid he get caught paying a $130,
000 to a porn star that, like,is that's demonstrative of his
inability to to run thiscountry. You know? You should be
able to handle a little bribe toa porn star, if you're gonna be
(44:25):
president.
Like, it's a it's kind of and,that's kind of been balancing
around my head for the pastweek. I'm just, like, that's
actually a pretty astuteobservation, considering all the
things white collar criminalscan get away with Right. In this
country, especially rich ones,especially probably presidents.
Danessa Watkins (44:45):
So
Jack Sanker (44:46):
I don't know. Unforced error? Like, didn't
they didn't have to get caught.Mhmm. You know?
There's no and I think thatthis, this, kind of, you know,
Joe Everyman on the focus groupis published in New York Times
really hits the nail on thehead. Like, dude, what are you
doing?
Danessa Watkins (45:01):
Yeah.
Jack Sanker (45:01):
It's so easy to get away with stuff in that
position.
Danessa Watkins (45:03):
Yep.
Jack Sanker (45:06):
Oh, boy.
Danessa Watkins (45:06):
Oh, okay. New York New York City civil judges
are elected to 10 year terms.
Jack Sanker (45:12):
Elected. There's some elected, some appointed.
Danessa Watkins (45:14):
Oh, some are appointed?
Jack Sanker (45:15):
Okay. Yeah. So they have a democratic, small d
democratic, that they'resupposed to, in 1 capacity or
another, represent. So decidewhether or not you think that
happened here.
Danessa Watkins (45:35):
So I before we wrap this up, I do wanna give a
shout out to Ava Rosenberg. Sheis a summer intern here at
Amundson Davis. She's a studentat the School of Journalism and
Mass Communication at Universityof Wisconsin Madison, and she
helped do a lot of our researchfor this podcast. So we were
(45:57):
just taking a quick break andchatting about what we've been
talking about, and she broughtup an interesting point. Ava?
Ava Rosenberg (46:05):
Yeah. Obviously, I don't have all the facts on
this case, and I've only heardabout it recently.
Jack Sanker (46:11):
Neither are we. So We.
Ava Rosenberg (46:14):
OJ Simpson passing away, and I wasn't alive
during the trial, but, I'm I'menjoying learning about it and
reading it. But I was thinkingabout when Jack brought up,
like, celebrities being broughtto trial and the courts and how
it's, like, political and youcan't change that. And that's
(46:34):
how it is, and you have toaccept it about if it's
political to charge OJ Simpson.And, obviously, it was, like, a
different case. Case.
Like, murder is a very differentcharge than, a felony,
falsifying business recordscharge. But what I read about
the case, people, definitelyracialized it and kinda made it
a point that he shouldn't getconvicted because he is, like, a
(46:58):
role model to the blackcommunity, and, like, there were
very few at the time and insports. But what does that say
about our judiciary system? Andeven if that, like, that's only
1 of the arguments that wasbrought to the media, obviously.
Like, the jury made their ownopinions on the facts of the
case, but how that relates tobringing Trump to the stand and,
like, what that says about ourjudiciary.
Danessa Watkins (47:20):
Right. And you also raised the point about what
would you know, what did thepeople of California want out of
the OJ Simpson trial, which Ithink is an interesting question
too.
Jack Sanker (47:29):
Well, I think I think the OJ Simpson trial can
also be understood as, like, thethe LAPD trial. You know? And
then in in a lot of ways, theLAPD was on trial during that.
And, like, it's I'm not I'm notan expert. I'm not an OJ Simpson
versus the people of Californiascholar, but, there was quite a
(47:51):
bit of, you know, improper,policing and and overt racism
that was uncovered and,discussed at trial in front of
the jury.
So not that that's exactly whathappened here, but, yeah, the
venue matters, and, like, thepeople that are in your jury
pool matter, and your reputationmatters. And that's that should
(48:12):
not shock anyone, is my opinion.I think if people need to, like,
consider what the alternativewould be here. And with respect
to the Trump case, like, heagain, we're gonna operate on
the assumption that he'stechnically guilty of what he
was charged with because that'swhat the jury said. And I have
no reason to discount that atthis point.
(48:33):
If if you're technically guiltyof it, then your argument boils
down to, but I should've no. Ishould not have been charged
because of XYZ. Like, my becauseI
Danessa Watkins (48:41):
Usually, constitutional due process
rights were violated is is
Jack Sanker (48:45):
yeah. And if that's the case, I hope that the the
commission gets thrown out. Youknow? If if this was a if if
Trump's constitutional rightswere violated, then I then I
hope that the appellate court orI think it's the superior court
of New York I'm not sure how
Danessa Watkins (49:00):
The yeah. I think that I don't know. They
label their courts differently.
Jack Sanker (49:03):
Yeah. Yeah. Yeah. And then I hope that, you know,
that's addressed and andwhatever. And I hope that he
gets the same amount of justicein that regard as process
justice, as anyone inherentlyand by 200 plus years inherently
and by 200 plus years oftradition, by statutory law,
(49:27):
like, builds into the system thediscretion of the people
involved in it.
It's not an algorithm. You know?And so if the prosecutors and
the judges have, you know, a 20%margin in which they can kind of
go with their gut, then youcan't be mad that they, like,
looked at the vibe and went withtheir gut here, and they find
you, as a defendant repulsiveor, you know, or a good person
(49:55):
that we should cut some slackto. Like, that's that and that,
of course, leads itself to a lotof biases.
Danessa Watkins (50:00):
Like, you mentioned racial
Jack Sanker (50:00):
biases, of course. That 20%, percent, you know,
discretion or 30% discretion,whatever you wanna call it, is
gonna skew hard, towards, overprosecuting minorities. And if
someone has, you know, aninherent racial animus. But that
again, that's, like, that is thesystem that everyone has had and
(50:21):
including Trump. So I'd I'dthat's what bothers me most is
this idea that he's beingtreated any differently than
someone who was, you know,brought in off the street with
with a routine charge.
I I don't see that at all. Ithink it's in fact, the
complaint here is that he wasn'ttreated differently. Mhmm. And
that's, you know, cry harder.Well, I'm actually glad you
brought that around because Ithought you were going a
different way
Danessa Watkins (50:38):
with that. But yes. No. A 100%. And I agree
with you.
If if there were different waywith that. But yes. No. A 100%.
And I agree with you.
If if there were, you know, ifhe didn't have his due process
rights, if there are findings tothat effect at the appellate
court level, the supreme courtlevel, whatever it is, then,
yes, absolutely. Like, give himthe rights that he's owed. But,
yeah, at the end of the day, Imean, yeah, this is the system
(51:05):
we have. And, you know, thankyou 12 jurors for your service
because I would be shaking, youknow, sitting in their seats
trying to make this decision.And the fact that they came down
the way that they did, knowingthat Trump had already violated
all these gag orders and was youknow, like, they you know, their
safety's at risk.
Their family's safety's at risk,and they still did their job.
(51:27):
And so
Jack Sanker (51:29):
Yeah. I mean, you I think it boils down to if you
spend, like, the last roughly 6or 8 years, like, antagonizing a
certain subsection of thepopulation directly, like,
coastal liberals, for example,which, you know, we're not
coastal liberals, but we're inChicago. We're, you know, urban,
whatever. But if, like, getsyour whole personality for the
last 10 years is justantagonizing those folks at the,
(51:50):
you know, international level aspresident, it just whatever.
Like, don't be surprised whenthey have the opportunity to get
you back within the margins thatthey do.
You know? I just I wouldn't Iwouldn't do it that way if I
were him. That's just me.
Danessa Watkins (52:04):
You would commit your crimes in a in a red
state?
Jack Sanker (52:07):
I would I would I would not never commit a crime,
but if I did,
Danessa Watkins (52:12):
I would get I would get away with it. You
heard it here, folks. Be asmarter criminal is the Yeah.
The wrap up of this show. Nowthis was super interesting.
You know, there are definitelystill some open questions about
what's gonna happen. I don'tthink we'll know for a while. We
(52:35):
need to see what the sentencesare. We need to see what the
appeals look like. We need tosee what happens with these
other trials that are not gonnago probably before the November
24 election, but, you know,could bring up some interesting
legal issues, depending on howthose wind up.
So, yeah, again, this is notsupposed to be a politically
(52:57):
motivated leaning 1 way oranother. We are just trying to
bring every angle of ouranalysis to a highly political
case, and it's interesting. SoYeah. Alright. Well, that is our
show for today.
Remember to like us, follow us,subscribe on Apple, Spotify,
(53:22):
YouTube, wherever you get yourpodcasts. As a reminder, we're
coming out with new shows everyother week, so look for us on
every other Tuesday. Again,shout out to Ava Rosenberg for
helping us on this show andgiving her insights as well as
her, amazing legal researchskills. That's all we have for
(53:42):
now. We'll see you next time.
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