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Speaker 1: If you say something about an election, they want to

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Speaker 1: put you in jail for the rest of your life.

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Speaker 1: It's a disgrace. Donald Trump was quick to criticize Special

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Speaker 1: counsel Jack Smith after the former president revealed that he

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Speaker 1: got a letter informing him that he's a target of

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Speaker 1: the Justice Department's investigation into efforts to overturn the results

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Speaker 1: of the twenty twenty presidential election, a strong signal that

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Speaker 1: he's likely to be indicted by federal prosecutors once again.

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Speaker 1: New federal charges, on top of existing state and federal

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Speaker 1: counts in New York and Florida, and a separate election

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Speaker 1: interference investigation nearing conclusion in Georgia would add to the

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Speaker 1: list of legal problems for Trump as he pursues the

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Speaker 1: twenty twenty four Republican presidential nomination, something Trump made light

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Speaker 1: of at a raleigh in Iowa yesterday. That's why they're

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Speaker 1: looking at me every prosecute. If I fly over a

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Speaker 1: Democrat state, a blue state, I get a notice were

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Speaker 1: you to report to a grand jury. We got to

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Speaker 1: keep this. If they wanted to run against me, they

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Speaker 1: wouldn't have me under federal indictment. Joining me is Joshua Castenberg,

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Speaker 1: a professor at the University of New Mexico Law School

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Speaker 1: and a former judge and lawyer in the US Air Force.

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Speaker 1: So the target letter does it most likely mean that

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Speaker 1: Trump will be charged in connection with January sixth?

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Speaker 2: It does? Yeah, So, first of all, you know, he's

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Speaker 2: the only one who has allegedly gotten a target letter

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Speaker 2: that we know of. And secondly, we don't know the

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Speaker 2: details on the target letter, but it seems there are

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Speaker 2: some crimes that are obvious that would be on a

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Speaker 2: charge if the Justice Department were to go after him.

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Speaker 2: One of those is witness tampering and the other is

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Speaker 2: either an aiding and a betting type charge in regard

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Speaker 2: to the January sixth insurrection or being a part of

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Speaker 2: the conspiracy of the January sixth insurrection.

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Speaker 1: We know an awful lot about Trump's actions around January

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Speaker 1: sixth from the January sixth House Committee hearings, But do

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Speaker 1: federal prosecutors have a lot more than that?

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Speaker 2: I think they have a lot more. And the reason

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Speaker 2: why I say that is the Grand Jury has been

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Speaker 2: summoning individuals who were at least privy to conversations that

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Speaker 2: occurred in the White House or occurred in his inner circle,

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Speaker 2: occurred among his legal advisors maybe, although they may not

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Speaker 2: be as personal legal advisors. I mean people coming in

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Speaker 2: like Rudy Giuliani and giving, you know, the former president

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Speaker 2: their two cents worth on what he could do. We're

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Speaker 2: not privy to a lot of those conversations, and we're

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Speaker 2: not privy to the grand jury testimony at that point.

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Speaker 2: I think there are things that are obvious, you know,

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Speaker 2: and Trump's movements is in action and his action alike

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Speaker 2: on January the sixth, that's all within the public sphere

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Speaker 2: of knowledge, plus the January sixth Commissions finding, you know,

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Speaker 2: in the House of representative statements made by individuals. That

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Speaker 2: is also in the public sphere of knowledge. But we

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Speaker 2: just don't know whether or not the Department of Justice

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Speaker 2: has a smoking gun on either conspiracy or aiding in

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Speaker 2: a bedding, or obstruction of an official government process. What

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Speaker 2: we can surmise is that they have strong evidence of

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Speaker 2: any of those.

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Speaker 1: Yeah, so let's say obstructing an official proceeding, which is

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Speaker 1: a law that's been used to charge hundreds of ordinary

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Speaker 1: defendants in the January sixth cases. Does it matter that

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Speaker 1: he wasn't.

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Speaker 2: There, No, it doesn't matter that he wasn't there, if

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Speaker 2: he gave directions, if he encouraged individuals to stop that

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Speaker 2: official proceeding from happening or that function from happening, he

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Speaker 2: can be found guilty as a part of a conspiracy charge.

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Speaker 2: He could be found guilty alone without the conspiracy charge.

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Speaker 2: I'm not suggesting that he would be found guilty either way,

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Speaker 2: because we don't know what type of defense Till raise.

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Speaker 2: But there's enough to substantiate an indictment I believe on

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Speaker 2: either of those two. And this charge that we're talking

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Speaker 2: about does not require someone to move to overthrow the government,

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Speaker 2: doesn't require the prosecution to prove the elements of sedition.

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Speaker 2: It actually is a unique obstruction charge that what the

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Speaker 2: prosecution has to prove beyond a reasonable doubt is that

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Speaker 2: the actors in this case, mister Trump, either conspired to

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Speaker 2: or directed or were a part of a movement a

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Speaker 2: process to stop a government function from going forward. And frankly,

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Speaker 2: the certification of the elector's vote. I don't think that

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Speaker 2: there's a clearer case of what a government function is

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Speaker 2: than that.

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Speaker 1: So a lot of times when you hear Trump talk,

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Speaker 1: for example at the rally on January sixth, he says

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Speaker 1: something that seems inflammatory, and then he says something that

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Speaker 1: sort of backtracks. He doesn't use emails, so there's nothing

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Speaker 1: in writing. Is it going to be difficult for prosecutors

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Speaker 1: to establish his intent?

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Speaker 2: Well, so the words alone that he used is going

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Speaker 2: to be a strong part of the proof his inaction

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Speaker 2: and stopping the event from happening. You know, here you

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Speaker 2: have the commander in chief of the United States military.

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Speaker 2: Not a single National Guard troop was called up by

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Speaker 2: the lighthouse or by the Secretary of the Army or

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Speaker 2: Secretary of Defense, which falls under him. So he had

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Speaker 2: law enforcement tools. I'm not suggesting the regular military note

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Speaker 2: I said national Guard. So the regular law enforcement tools

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Speaker 2: that were available to him at a drop of a

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Speaker 2: hat to call in he didn't do. So that's evidence

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Speaker 2: of his intent. Additionally, all of those individuals who were

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Speaker 2: working on behalf of him, that were trying to stop

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Speaker 2: the election and through frivolous lawsuits, through public speeches, all

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Speaker 2: of those, you know, the inner circle of his followers

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Speaker 2: that begins to appear like a conspiracy, and their rules

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Speaker 2: of evidence, which might, depending on how the facts of

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Speaker 2: this case playoff, would allow their conduct to come in

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Speaker 2: to prove his intent to stop this government function.

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Speaker 1: Let's talk about the possibility of a charge on witness tampering.

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Speaker 2: Well, if you're a defendant and you know that there's

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Speaker 2: an individual who is likely going to be called to

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Speaker 2: testify in a grand jury or testify in a trial

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Speaker 2: against you, and you reach out and talk to them

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Speaker 2: and you try to convince them not to testify or

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Speaker 2: that you're in the right. You know, you're making subtle

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Speaker 2: promises or hints to promises, or just trying to use

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Speaker 2: the weight of your power to convince them to alter

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Speaker 2: their testimony in your favor. That substruction of justice. And

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Speaker 2: you know, usually defense counsel advised their clients, and this

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Speaker 2: includes clients and organized crime. Let me do the talking

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Speaker 2: for you, because when you reach out and you call

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Speaker 2: individuals and start talking to them about conversations that you

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Speaker 2: had and trying to shape their memory of a conversation

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Speaker 2: or an action that you had, you're falling into the

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Speaker 2: dangerous territory of obstruction of justice. And I'm not suggesting

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Speaker 2: that mister Trump listens to his attorneys. You know, they

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Speaker 2: seem to come and go at an alarming rate. You know,

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Speaker 2: that's another concern. But the government has what i'd call

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Speaker 2: a prima facia case on witness tampering, on this type

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Speaker 2: of obstruction of justice mentality. It doesn't mean that will

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Speaker 2: be convicted. He's presumed to be innocent under the law.

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Speaker 2: But they have a prima facia case, which means that

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Speaker 2: to me that it would substantiate, you know, an indictment

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Speaker 2: against him.

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Speaker 1: Do you believe that Jack Smith would need a lot

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Speaker 1: more than a prima facient case to indict Trump.

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Speaker 2: I don't think so. And you know, you're going to hear,

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Speaker 2: particularly from Republicans in the House, about how this is

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Speaker 2: a political trial. And let's remember Jack Smith as a Republican.

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Speaker 2: Christopher Ray, the director of an FBI which the Republicans

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Speaker 2: in the House have targeted for politicizing the FBI, was

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Speaker 2: a Republican and a member of the Federalist Society. These

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Speaker 2: two public servants, who are simply doing their job and

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Speaker 2: they've departed from politics, have concluded that the former president

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Speaker 2: or others in this circle have committed significant crimes against

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Speaker 2: the United States, sometimes crimes of a constitutional nature. And

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Speaker 2: so I think that without knowing Jack Smith or the

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Speaker 2: others personally, I think from their conduct. They're approaching this

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Speaker 2: in the same manner that they would approach a case

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Speaker 2: committed by another United States citizen. But I don't think

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Speaker 2: that they're giving Trump any special favors. They may be

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Speaker 2: more cautious because they're an uncharted territory in dealing with

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Speaker 2: a former president, but I don't think they're working to

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Speaker 2: prove beyond a shadow of a doubt before presenting to

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Speaker 2: a grand jury. To do that would be an abrogation

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Speaker 2: of their responsibility as a prosecutor.

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Speaker 1: Reporters have been reaching out to the various people around

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Speaker 1: Trump to see whether any of them have gotten target letters,

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Speaker 1: and so far none of them have or have not

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Speaker 1: revealed that they've gotten target letters. Right, What does that

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Speaker 1: mean as far as conspiracy charges are concerned.

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Speaker 2: Well, you know, this is really fascinating. It's not required

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Speaker 2: that everybody get target letters, or that anybody get a

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Speaker 2: target letter. I would think though, in this particular case,

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Speaker 2: they all might have gotten target letters, or they would

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Speaker 2: have been informed that they're targets through some means. So

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Speaker 2: that does make it unusual. What's assume for a moment

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Speaker 2: that this target letter is real and it's not being

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Speaker 2: used as some kind of fundraising type activity by the

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Speaker 2: former president, or that he hasn't been punked with a

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Speaker 2: fake target letter. So let's assume that it's real. If

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Speaker 2: it's real, it means that it's far more likely that

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Speaker 2: indictments are coming against him and possibly against others, and

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Speaker 2: maybe there's a charge of a conspiracy. On the other hand,

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Speaker 2: you can have unindicted co conspirators within a conspiracy, So

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Speaker 2: he may find himself on trial alone in this case,

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Speaker 2: but there still may be conspiracy charging alleging the conduct

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Speaker 2: of others within the charges.

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Speaker 1: Can you see any defenses he might raise.

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Speaker 2: Look, you know he's going to try to raise the defense.

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Speaker 2: I truly believe that the election was stolen and rigged.

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Speaker 2: The problem with that is all the time period between

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Speaker 2: the November election and January the sixth, there were multiple

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Speaker 2: court cases filed. Those court cases were summarily dismissed and

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Speaker 2: found to be frivolous. And if that didn't put him

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Speaker 2: on notice that his belief was an error, I'm not

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Speaker 2: sure what would. And so at that point I think

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Speaker 2: the defense becomes really weak if a US District Court

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Speaker 2: judge Ordy even admit it. And the reason why I say,

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Speaker 2: if a US District Court judge Ordy Eve and admit

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Speaker 2: it is this. It doesn't matter what he believes. What

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Speaker 2: matters is that the addition against the United States Government,

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Speaker 2: obstructing an official United States Government proceeding, and witness tampering

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Speaker 2: are not excused by someone's belief. Now, this is not

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Speaker 2: the same thing as self defense, right where you know

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Speaker 2: you're worried about someone who's going to harm you or

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Speaker 2: a member of your family, and so you commit an

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Speaker 2: act of violence against them, and that kind of defense

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Speaker 2: a good faith belief is absolutely admissible. But here we're

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Speaker 2: talking about there's nothing immediate, something that could have been

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Speaker 2: argued further and further in the court, and so I

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Speaker 2: have a hard time thinking that a US District Court

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Speaker 2: judge would permit that type of defense to come into evidence.

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Speaker 1: So I want to talk for a moment about the

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Speaker 1: Florida Classified Document's case and the hearing with the Trump's

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Speaker 1: lawyer is seeking to delay the trial until after the

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Speaker 1: presidential election in twenty twenty four, and the prosecutors seeking

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Speaker 1: to have it in December. The judge seems to be

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Speaker 1: very circumspect in what she's indicating. Perhaps she's been chasing

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Speaker 1: by the reversal by the Eleventh Circuit.

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Speaker 2: Yeah, I think Jack Smith and the prosecution as a whole,

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Speaker 2: in making the argument that there's nothing special about this

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Speaker 2: case that it should wait until after the election, is

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Speaker 2: actually you know, the charges are going to be politicized

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Speaker 2: either way. You know, Trump could run on the idea of, hey,

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Speaker 2: I'll be able to dismiss these charges against me and

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Speaker 2: pardon myself if you elect me president if they wait

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Speaker 2: that long. At the same time, the judge is also

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Speaker 2: sort of in a hot spot if she decides to

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Speaker 2: allow the trial to go before the election, having said

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Speaker 2: that there is no argument under the law or the

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Speaker 2: constitution that would require her to delay it until after

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Speaker 2: the election. And in point of fact, since Trump is

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Speaker 2: an ordinary citizen like anyone else, if she rules in

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Speaker 2: that manner that he gets to wait till after the election,

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Speaker 2: then you know, a high school football coach can weigh

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Speaker 2: in on a criminal trial and say, don't prosecute my

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Speaker 2: quarterback until after the season's over, after the big game.

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Speaker 2: And where would it end. You know, there'd be no

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Speaker 2: end in sight to you know, a CEO being able

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Speaker 2: to use a similar allegation, or common citizen saying, well,

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Speaker 2: I wasn't going to run for governor before, but I

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Speaker 2: am now. Just to delay this trial, there would be

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Speaker 2: no end in sight to the misconduct that a defendant

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Speaker 2: or erstwhile that this defendant could commit to gum up

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Speaker 2: the works if she rules in favor of the president. So, yes,

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Speaker 2: she's being more circumspect. But at the end of the day,

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Speaker 2: the right answer is to hold the trial at the

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Speaker 2: earliest possible date that the prosecution has complied with all

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Speaker 2: discovery and that the defense reasonably has time to look

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Speaker 2: at the prosecution's evidence and develop defense there you know,

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Speaker 2: in trial, and that could be as early as December.

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Speaker 2: I don't see why it wouldn't be.

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Speaker 1: The defense is pointing to the amount of documents and

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Speaker 1: information they've already gotten from the prosecution. One point one

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Speaker 1: million pages of unclassified evidence, fifteen hundred and forty five

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Speaker 1: pages of classified evidence, and at least three years' worth

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Speaker 1: of surveillance video. It sounds like an overwhelming amount. How

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Speaker 1: does the judge decide how much time they need for that?

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Speaker 2: Well, part of that has to do with a rule

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Speaker 2: known as candor to the court. And so if the

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Speaker 2: defense say, look, we don't have enough attorneys and enough

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Speaker 2: support to go through this before a trial date. I

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Speaker 2: think the judge has to take them on their words.

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Speaker 2: On the other hand, defending the former president as a

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Speaker 2: full time job, and he does have more than one

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Speaker 2: attorney defending him on this. In fact, he's got a

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Speaker 2: robust team. And we're really only talking about the classified

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Speaker 2: documents in this case. So I think a lot of

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Speaker 2: exaggerations could be made in regard to the unclassified documents,

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Speaker 2: which are quite voluminous but are not central to the

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Speaker 2: prosecution's case against him.

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Speaker 1: Let's talk about timing. The New York Attorney General's fraud

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Speaker 1: suit against the Trump organization as a civil trial is

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Speaker 1: set for October twenty twenty three, and the judge said,

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Speaker 1: come hell or high water, the trial will start in October.

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Speaker 1: That could last as long as two months. The second

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Speaker 1: e Gen Carrol defamation, another civil trial, is set for

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Speaker 1: January fifteen, twenty twenty four. The Manhattan criminal trial over

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Speaker 1: hush money payments is set for March twenty fifth, twenty

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Speaker 1: twenty four, and Trump has to be present at that

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Speaker 1: trial because he's the criminal defendant. Then you have the

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Speaker 1: classified documents trial, and you have the probability of another

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Speaker 1: trial involving January sixth. January sixth seems the most weighty

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Speaker 1: to everyone. Yeah, will it get preference over the other trials?

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Speaker 2: Well, it may get preference over the civil trials because

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Speaker 2: there's a general role that civil trials are held in

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Speaker 2: abeyance until criminal trials that are directly related to them

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Speaker 2: are completed. However, both civil trials do not require the

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Speaker 2: former president to be there. Being a defendant in a

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Speaker 2: civil trial, we know this from Eugene Carroll the first case.

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Speaker 2: He wasn't present for any part of the trials, So

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Speaker 2: those trials could go forward unless he indicates I need

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Speaker 2: to be there and it would prejudice my cases in

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Speaker 2: the criminal courts to go first. I mean he could

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Speaker 2: make that argument. Assuming he doesn't make those arguments, I

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Speaker 2: think the civil trials simply both of them go forward

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Speaker 2: as their plan. You get into this battle though, between

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Speaker 2: possibly two state jurisdictions New York and Georgia, and the

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Speaker 2: two federal cases, and it really comes down to respect

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Speaker 2: between the federal judiciary and the state judiciaries, and the

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Speaker 2: fact that the Manhattan be a secured indictments against Trump first,

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Speaker 2: and I think the federal side will probably exercise some

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Speaker 2: restraint and not try to derail the New York case

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Speaker 2: or delay the New York case. I think that one

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Speaker 2: is most likely to go first unless Jack Smith makes

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Speaker 2: a real compelling argument to the New York court or

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Speaker 2: directly to the New York prosecutor and asking them, we

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Speaker 2: need you to delay.

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Speaker 1: Alvin Bragg might agree to that, seeing how impart the

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Speaker 1: January sixth case is.

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Speaker 2: Absolutely he might agree to that. I mean, he'd want

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Speaker 2: to know what is the conflict? Because you know Trump

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Speaker 2: is being defended by different defense teams, so he might

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Speaker 2: want to know, Look, what is the conflict. Are you

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Speaker 2: worried about a witness having to testify in both cases?

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Speaker 2: So I think if he senses there's a conflict that

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Speaker 2: could harm the federal case, he might agree to a

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Speaker 2: delay too. It's really speculative, though. I think in terms

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Speaker 2: of the federal cases that unless Judge Cannon makes a

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Speaker 2: ruling in Trump's favor until delaying after the election, I

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Speaker 2: think that that Florida case would go before any Washington

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Speaker 2: DC case.

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Speaker 1: Many people are looking at the end of these criminal

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Speaker 1: trials and seeing Donald Trump in prison. Do you think

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Speaker 1: that he would ever really be forced to serve prison

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Speaker 1: time if he's convicted in one of these cases. Taking

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Speaker 1: out the consideration that he might win the presidency, do

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Speaker 1: you think that these are really the circumstances under which

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Speaker 1: a former president would be sent to prison.

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Speaker 2: You know, that's a great question. And the answer to

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Speaker 2: that is the infrastructure in the federal prison system is

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Speaker 2: there to have what you call high stakes or prominent defendants.

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Speaker 2: I mean, I remember when I was stationed at Maxwell

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Speaker 2: Air Force Base in Alabama. There's actually a federal prison

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Speaker 2: on the base. It's almost like a scene from The

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Speaker 2: Godfather too, where Frank PENTANGELEI was living on a base

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Speaker 2: and it's a minimum secure prison. He used to see

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Speaker 2: the prisoners, you know, working at the golf course and

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Speaker 2: working at the base gym and the like. So not

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Speaker 2: all federal prison are a castle surrounded by barbed wire.

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Speaker 2: And you know, I mean, those are the type of

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Speaker 2: prisons that Pete Rose went to and some other prominent

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Speaker 2: or famous people. However, none of them are former presidents.

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Speaker 2: And so I could also see a US District court

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Speaker 2: judge on sentencing or a president who is sitting in

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Speaker 2: the Whitehouse making the decision. Look the conviction was important

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Speaker 2: for history, but I'm not really comfortable sentencing a former

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Speaker 2: president behind bars for these types of crimes.

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Speaker 1: I want to just for a moment, jump to the

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Speaker 1: Michigan Attorney general charging sixteen Republicans who falsely claimed to

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Speaker 1: be the state's twenty twenty presidential electors with forgery and

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Speaker 1: other felonies. So how important is this? This the first

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Speaker 1: prosecution against Trump electors.

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Speaker 2: So this is being done at the state level by

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Speaker 2: the state attorney general, and so in the various states

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Speaker 2: where this occurred, each state attorney general has to make

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Speaker 2: a decision as to whether or not it constitutes a

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Speaker 2: crime under state law. And I'm not an expert under

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Speaker 2: the Criminal Code of Michigan, but looking at it, it

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Speaker 2: seems to fit. The conduct fits with the charges. Again,

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Speaker 2: it's going to be called a very political move by

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Speaker 2: the state attorney general because I think one of the

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Speaker 2: defendants in that case was the former state party chair

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Speaker 2: of the Republican Party. But it's important so that it

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Speaker 2: doesn't happen again. The idea that you can have fake

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Speaker 2: electors or full the country through fake electors is an

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Speaker 2: anathema to our constitutional republic. And it's clear that there

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Speaker 2: are states, you know, criminal codes that should prevent that

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Speaker 2: sort of thing or criminalize that sort of thing, and

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Speaker 2: it's being used for the first time. Now, how far

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Speaker 2: this law goes is anyone's guests, Because they've always been

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Speaker 2: talk about faceless electors. They've been talk about mechanisms to

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Speaker 2: remove electors who've been picked by the state and how

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Speaker 2: they're done. And so I don't know what the defenses

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Speaker 2: are that they're going to be raised. But if the

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Speaker 2: defenses are, look, we did this fake elector sway only

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Speaker 2: to employ it. If we won in the court, then

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Speaker 2: they may have a defense, But beyond that, I can't

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Speaker 2: see how they would.

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Speaker 1: I always appreciate your insights, josh Best, Professor Joshua Castenberg,

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Speaker 1: or the University of New Mexico Law School. And that's

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Speaker 1: it for this edition of The Bloomberg Law Show. Remember

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Speaker 1: you can always get the latest legal news on our

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Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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