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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: In a Washington, d C. Federal courtroom today, Donald Trump

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Speaker 2: pleaded not guilty to trying to overturn the results of

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Speaker 2: his twenty twenty election loss, answering for the first time

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Speaker 2: the federal charges that accuse him of orchestrating a brazen

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Speaker 2: attempt to block the peaceful transfer of presidential power and

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Speaker 2: interfere with the voting rights of millions of Americans. Special

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Speaker 2: counsel Jack Smith secured a four count indictment on Tuesday

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Speaker 2: that accuses Trump of conspiring to defraud the US by

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Speaker 2: interfering with the counting of votes in twenty twenty, obstructing

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Speaker 2: and conspiring to obstruct Congress's certification of the election results,

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Speaker 2: and conspiring against the right to vote. Before leaving DC,

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Speaker 2: Trump said this was a persecution of a political opponent.

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Speaker 3: This is the persecution of the person that's leading by

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Speaker 3: very very substantial numbers in the Republican primary and leading

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Speaker 3: Biden by a lot. So if you can't beat him,

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Speaker 3: you persecute him, or you prosecute him. We can't let

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Speaker 3: this happen in America.

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Speaker 2: Thank you very much, every much joining me is former

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Speaker 2: federal prosecutor Robert Mintz, a partner Ma Carter in English, Bob.

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Speaker 2: The first hearing in this case is set for August

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Speaker 2: twenty eighth, and it will be before Judge Tanya Chutkin

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Speaker 2: will be the trial judge. She's been on the bench

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Speaker 2: for almost a decade and she's known for being tough

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Speaker 2: at sentencing of January sixth defendants. Tell us a little

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Speaker 2: about her well.

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Speaker 1: She was appointed by former President Obama and she has

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Speaker 1: presided over a number of the January sixth trials and

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Speaker 1: the results of those cases have shown her to be

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Speaker 1: a tough sentensor, particularly when it comes to these crimes.

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Speaker 1: She was famous for saying that the president is not

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Speaker 1: the king, and so I think she has some strong

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Speaker 1: views about what going on on January sixth. And although

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Speaker 1: she was previously a public defender, so she was remember

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Speaker 1: on the other side of these cases. In her professional

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Speaker 1: career before going on to the Bank, she was defending defendants.

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Speaker 1: She's not a former prosecutor. She has a record of

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Speaker 1: being tough on sentencing when it comes to January sixth defendants.

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Speaker 2: There was a case before her involving Trump where she

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Speaker 2: rejected his attempts to block the January sixth Committee from

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Speaker 2: getting his White House papers, and in comment, she's rejected

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Speaker 2: the theory that the twenty twenty election was marred by

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Speaker 2: widespread fraud and called it a lawfully conducted election. Is

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Speaker 2: that viewpoint going to make some of Trump's defenses and

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Speaker 2: claims harder.

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Speaker 1: I don't think so, because, remember, this trial is not

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Speaker 1: going to be about whether the election was stolen, not

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Speaker 1: going to be about whether they was fraud in connection

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Speaker 1: with the election. It's going to be about whether prosecutors

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Speaker 1: can prove that former President Trump knew that he had

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Speaker 1: lost the election and yet made statements suggesting that it

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Speaker 1: was stolen and incited people to interfere with the lawful

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Speaker 1: transition of power.

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Speaker 2: The prosecution's case, it's really thorough. But do you think

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Speaker 2: that they have things that they've saved, you know, additional

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Speaker 2: things that are not in the indictment.

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Speaker 1: Oh? Absolutely. I think what we're seeing here is a

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Speaker 1: very detailed indictment that reads almost like a crime thriller,

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Speaker 1: but it sets out at the very beginning of the

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Speaker 1: indictment really the government's theme, the central theme of the

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Speaker 1: prosecution here is that former President Trump lost the twenty

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Speaker 1: twenty presidential election, and that despite having lost, he was

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Speaker 1: determined to remain in power. The prosecution wants to turn

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Speaker 1: this case into a test as to whether or not

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Speaker 1: people who did on that jury understand that. According to prosecutors,

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Speaker 1: this was not about a president who genuinely believed he

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Speaker 1: had lost, but someone who knew he had lost would

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Speaker 1: go to all ends, both legal and illegal, in order

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Speaker 1: to try to remain in power. And the prosecution states,

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Speaker 1: in the beginning of the indictment, the defendant spread lies

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Speaker 1: that there had been outcome determinative fraud in the election

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Speaker 1: and that he had actually won. And this is really

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Speaker 1: the central key statement of this entire indictment. These claims

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Speaker 1: were false, and the defendant knew that they were false.

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Speaker 1: That's what this case will ultimately turn on.

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Speaker 2: Is the toughest hurdle for prosecutor is going to be

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Speaker 2: proving Trump's intent.

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Speaker 1: You always have to prove intent when it comes to

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Speaker 1: a criminal case, so you always have to show that

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Speaker 1: the defendant a knew what he was doing and b

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Speaker 1: knew what he was doing was wrong. You don't have

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Speaker 1: to specifically show that a defendant knew they were breaking

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Speaker 1: the law. They just have to show what's called criminal

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Speaker 1: intent or bad intent, that they willfully did something that

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Speaker 1: they knew was a bad thing to do, that they

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Speaker 1: knew was not truthful, that they knew was deceitful, that

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Speaker 1: they knew was in some way bad conduct. And here

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Speaker 1: bad conduct is to try to incite individuals, encourage people,

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Speaker 1: lead people to conspire with individuals in order to take

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Speaker 1: unlawful means in order to overturn the election. So what

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Speaker 1: prosecutors will try to do here is to say, Number one,

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Speaker 1: former President Trump was absolutely entitled to his opinion. This

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Speaker 1: is not a First Amendment case. He was allowed to

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Speaker 1: be publicly about the election. He was allowed to even

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Speaker 1: claim that there had been outcome determinative fraud, even though

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Speaker 1: that was not true, And he was entitled to formally

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Speaker 1: challenge the results of the election, but he had to

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Speaker 1: do it through lawful and appropriate means. And in order

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Speaker 1: for prosecutors to win this case, they have to convince

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Speaker 1: this jury that not only did former President Trump know

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Speaker 1: that he lost, but that he took illegal means in

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Speaker 1: order to try to stay in power. And by that

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Speaker 1: I mean they refer to the false electors, they refer

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Speaker 1: to putting pressure on the former vice president but not

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Speaker 1: certify the election when he had no power to do it,

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Speaker 1: and they knew he had no power to do it.

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Speaker 1: So that's really the crux of this case when it

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Speaker 1: ultimately gets in front of the jury.

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Speaker 2: So will former Vice President Mike Pence be a star witness?

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Speaker 1: I certainly think that he will. One of the things

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Speaker 1: that you see in this indictment, and it's called a

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Speaker 1: speaking indictment, because remember, prosecutors don't have to lay out

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Speaker 1: all of these facts in an indictment. All they have

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Speaker 1: to do is basically assert what the charges are, the

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Speaker 1: crime that was violated. They have to give enough detail

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Speaker 1: so a defendant knows how to defend the case. So

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Speaker 1: they have to say dates and time, and they have

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Speaker 1: to make certain statements in order to support their allegations.

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Speaker 1: But they certainly don't need to go into the detail

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Speaker 1: that Special Counsel Jacksbith did here. But he did it

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Speaker 1: I think for a very specific reason because he knows

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Speaker 1: that part of the defense strategy is going to be

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Speaker 1: to try to play to the court of public opinion,

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Speaker 1: and so he has to get his side of the

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Speaker 1: case out there in front of the public. At the

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Speaker 1: very beginning your earlier June, I do think he has

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Speaker 1: held back some evidence, some statement, and he has not

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Speaker 1: shown all of his cards in this indictment.

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Speaker 2: So the co conspirators six co conspirators are not named,

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Speaker 2: but we can figure out basically who five of the

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Speaker 2: six are. Why didn't he charge the co conspirators in

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Speaker 2: this case? Is it just to streamline the case and

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Speaker 2: get it to trial faster.

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Speaker 1: Well, that's a great question, and the answer to that

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Speaker 1: is we're not quite sure. The Permit of Justice guidelines

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Speaker 1: say that if you are going to name somebody in

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Speaker 1: an indictment and essentially accuse them of committing a crime,

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Speaker 1: you have to charge them. So it would have been

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Speaker 1: entirely improper to name the co conspirators in this indictment

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Speaker 1: because they're unindicted. They've not been charged with a crime.

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Speaker 1: And the theory behind that is simple. If you're going

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Speaker 1: to name somebody in indictment and essentially a lege they

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Speaker 1: committed a crime, you have to give them their day

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Speaker 1: in court to clear their name. So because they were

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Speaker 1: not charged they were not specifically named. That doesn't mean, however,

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Speaker 1: that there can't be what's called a superseding indictment, which

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Speaker 1: is a second indictment. We saw that happen in the

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Speaker 1: mar A Lago case already, where there was a superseding indictment,

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Speaker 1: and prosecutors at that point can add additional defendants. So

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Speaker 1: the reason for naming unindicted co conspirators can be several.

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Speaker 1: It can be evidentiary because a statement by an unindicted

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Speaker 1: co conspirator is admitted without being considered hearsay, because that

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Speaker 1: unindicted co conspirator was still part of the conspiracy. The

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Speaker 1: other thing that prosecutors do in naming unindicted co conspirators

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Speaker 1: is to essentially send a strong message to unindicted co

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Speaker 1: conspirators that they are more or less in the on

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Speaker 1: deck circle for the superseding indictment. In other words, they

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Speaker 1: may very well be named in the next case if

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Speaker 1: prosecutors decide to obtain a superseding indictment. In that case,

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Speaker 1: prosecutors can additional charges, they can add additional facts, and

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Speaker 1: they can add additional defendant And it's quite possible that

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Speaker 1: we will see a superseding indicting in this case and

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Speaker 1: additional defendants get added to it. So it puts pressure

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Speaker 1: on these co conspirators that perhaps decide to cooperate with

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Speaker 1: federal prosecutors. And there's no doubt that at least with

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Speaker 1: some of these co conspirators, prosecutors are trying to put

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Speaker 1: pressure on them in order to try to get them

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Speaker 1: to cooperate. By naming them as an unindicted co conspirator,

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Speaker 1: it really rackets up the pressure because it sends a

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Speaker 1: very clear and public signal potential defendant that they are

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Speaker 1: in the crosshairs of the government.

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Speaker 2: John Eastman's lawyer said that he is co conspirator number two.

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Speaker 2: In the indictment, Eastman is described as an attorney who

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Speaker 2: devised and attempted to implement a strategy to leverage the

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Speaker 2: Vice president's ceremonial role overseeing the certification proceeding to obstruct

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Speaker 2: the certification of the presidential election. Eastman's lawyer said he's

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Speaker 2: preparing a brief that he is going to submit to

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Speaker 2: the Special Council outlining he was an attorney, was as

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Speaker 2: counsel and he didn't give any illegal advice. And he

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Speaker 2: also said, if charged, he's going to trial, is there

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Speaker 2: any world in which the Special Council would take what

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Speaker 2: he says in a brief and go, oh, we're not

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Speaker 2: going to charge him, then I don't think so.

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Speaker 1: I think this is all done for political seater. It's

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Speaker 1: all done to play to the public. The prosecutors already

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Speaker 1: know what positions each of these co co conspirators took

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Speaker 1: in order to name them as co conspirators in the

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Speaker 1: first place, prosecutors have essentially already determined that they have

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Speaker 1: committed a provable crime. Because if it comes to trial

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Speaker 1: and prosecutors have not named these unindicted co conspirators as defendants,

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Speaker 1: but prosecutors want to get their statements admitted a trial,

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Speaker 1: they will have to convince the judge that these unindicted

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Speaker 1: co conspirators committed a crime, and therefore a co conspirator's

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Speaker 1: statement is not considered hearsay and those statements would be admissible.

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Speaker 1: So prosecutors have essentially made up their minds to the

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Speaker 1: middle culpability of these unindicted coked spirits already, and it's

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Speaker 1: highly unlikely that any threats or comments or additional information

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Speaker 1: provided by any of their council are going to change

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Speaker 1: the mind to prosecutors.

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Speaker 2: What I found surprising is Trump's lawyers have been on

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Speaker 2: TV and they're still pushing the defense of First Amendment

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Speaker 2: that he had a right to say what he said,

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Speaker 2: and it doesn't seem to fit how the Special Council

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Speaker 2: has drawn up this indictment.

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Speaker 1: Well, the Special Council has clearly anticipated this First Amendment

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Speaker 1: defense because former President Trump's lawyers had already been hinting

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Speaker 1: that that's the direction they were going to go if

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Speaker 1: charges were brought. And that's why he included a paragraph

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Speaker 1: at the very beginning of the indictment saying that the defendant,

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Speaker 1: former President Trump, had a right like every American, to

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Speaker 1: speak publicly about the election and to even claim falsely

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Speaker 1: that there had been outcome determinative fraud during the election

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Speaker 1: and that he had won. Trying to get out in

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Speaker 1: front of that issue and show that they are not

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Speaker 1: trying to restrain his right to speak, They're not trying

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Speaker 1: to restrain his right to express an opinion. But what

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Speaker 1: the indictment focuses on is not words but action. And

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Speaker 1: part of the conspiracy is a group of people who

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Speaker 1: could aspire with one another, often by acts and by words,

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Speaker 1: to do something that's illegal. And so what prosecutors have

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Speaker 1: although they did include a number of statements allegedly made

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Speaker 1: knew at the time were false. For example, they say

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Speaker 1: the defendant insinuated that more than ten thousand dead voters

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Speaker 1: had voted in Georgia, which is demonstrably false. They say

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Speaker 1: that former President Trump astirred there had been two hundred

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Speaker 1: and five thousand more votes than voters in Pennsylvania, another

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Speaker 1: fact that is demonstrably false, and the prosecutors a leged

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Speaker 1: the president knew at the time was false. They also

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Speaker 1: there was a suspicious jump of votes in Detroit, Michigan,

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Speaker 1: again something they say is a demonstrably false statement, when

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Speaker 1: that former President Trump knew it was false at the

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Speaker 1: time that he made it. So they've attacked the First

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Speaker 1: Amendment argument both by showing that statements made by former

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Speaker 1: President Trump were knowingly false, but also really focusing on

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Speaker 1: conduct rather than statements. And I think that's why you

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Speaker 1: did not see any charges that were brought directly as

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Speaker 1: a result of the events of January sixth and the

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Speaker 1: statements that former President Trump made at that rally that

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Speaker 1: ultimately incided the right. They wanted to stay far away

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Speaker 1: from an argument that the president truly believed that he

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Speaker 1: had won the election and that all of his statements

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Speaker 1: to the people that day that ultimately led to the

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Speaker 1: riot were protected by the First Amendment. They left that

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Speaker 1: out of the indictment intentionally in order to anticipate this

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Speaker 1: First Amendment defense.

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Speaker 2: Another defense that is being bandied about is adviceive counsel

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Speaker 2: that he was just following what his lawyers told him.

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Speaker 1: Yeah, and I think that actually is a defense that

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Speaker 1: may ultimately prove to be most troublesome for prosecutors. You know,

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Speaker 1: here is a case where you had a long list

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Speaker 1: of lawyers providing advice to the president, many of them

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Speaker 1: telling him there was no election fraud. You did not

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Speaker 1: win the election. His Attorney general at the time, Bill Barr,

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Speaker 1: told him there was no election of fraud. Lots of

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Speaker 1: other high ranking attorneys in the Department of Justice confirm

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Speaker 1: that view. But he picked and choosed among the lawyers

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Speaker 1: he wanted to believe, and he ultimately found lawyers who

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Speaker 1: were willing to tell him what he wanted to believe.

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Speaker 1: There is something called a reliance on professional advice defense.

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Speaker 1: Now what that means if you were to go down

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Speaker 1: talk to your lawyer, provide your lawyer with all truthful

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Speaker 1: and complete information, and that lawyer tells you to do something,

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Speaker 1: and then you do it, that you're breaking the law,

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Speaker 1: you can rightfully raise as a defense the fact that

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Speaker 1: you relied in good faith on the advice that you

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Speaker 1: got from your lawyer. You didn't mislead your lawyer. You

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Speaker 1: gave your lawyer all the relevant facts, and you just

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Speaker 1: got bad advice from that lawyer. And that really shifts

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Speaker 1: the burden onto the prosecution here. To show that your

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Speaker 1: reliance was not in good faith. Here, prosecutors will have

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Speaker 1: to show that these lawyers were cooking up schemes that

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Speaker 1: even the president knew was false. And they've done that

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Speaker 1: by alluding to certain statements that former presidents Trump made

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Speaker 1: about these various lawyers that showed that he really didn't

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Speaker 1: believe what they were saying, that he knew that their

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Speaker 1: statements and their legal advice was really on the fringes

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Speaker 1: of legality and was not supported by the law. And

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Speaker 1: that is bolstered by the fact that other lawyers were

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Speaker 1: telling him, including his own Attorney General that this information

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Speaker 1: that he was getting from these other lawyers was simply

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Speaker 1: not sound legal advice, and that it was not something

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Speaker 1: that was true.

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Speaker 2: Is advice of counsel available if the lawyer is a

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Speaker 2: co conspirator?

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Speaker 1: Well, that rigs is an interesting question because typically when

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Speaker 1: the advice of council defense is raised, the lawyer is

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Speaker 1: not a defendant in the case or a co conspirator.

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Speaker 1: So here if prosecutors prove that those lawyers who are

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Speaker 1: co conspirators also violated the law, and that really does

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Speaker 1: exiscerate that defense. It undermines the defense because it shows

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Speaker 1: that those lawyers didn't really believe what they were saying.

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Speaker 1: But prosecutors still have to prove that even if the

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Speaker 1: lawyers didn't believe it, that former President Trump also didn't

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Speaker 1: believe it.

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Speaker 2: Let's talk timing. So basically, from October through May, he's

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Speaker 2: got four trials pending, and two of them are criminal.

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Speaker 2: Manhattan DA Alvin Bragg has hinted that he'd be willing

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Speaker 2: to push his trial date in order to help a

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Speaker 2: federal prosecution in the interest of justice. Can the Special

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Speaker 2: Council get this case tried before the.

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Speaker 1: Election, Well, that really is the central question here, because

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Speaker 1: if these cases are not tried before the election, and

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Speaker 1: if foreigner President Trump is the Republican nominee, and if

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Speaker 1: he wins, if he becomes the next president of the

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Speaker 1: United States, then with these cases pending, it's highly likely

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Speaker 1: he will appoint an attorney general who will simply just

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Speaker 1: dismiss these charges and not pursue them on the federal level.

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Speaker 1: That doesn't mean that the case with the Matt DA's

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Speaker 1: office goes away, because that's the state case and the

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Speaker 1: president can't do anything about those charges. But in terms

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Speaker 1: of the federal charges, which are the most serious, that

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Speaker 1: really is up to the Department of Justice. In terms

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Speaker 1: of the two federal cases they've brought in the Southern

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Speaker 1: District of Florida and now in the District of Columbia,

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Speaker 1: and the judges on those cases, generally speaking, if prosecutors

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Speaker 1: tells the judge in Washington, DC and the judge in

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Speaker 1: Florida the time that they'd like to pursue these cases,

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Speaker 1: I think you'll see the judges go along with that.

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Speaker 1: Prosecutors are the ones who are bringing these cases, and

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Speaker 1: it's really up to the judges in terms of timing.

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Speaker 1: But Again, any judge, whether it's the judge in Washington,

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Speaker 1: DC or the judge in South Florida, is going to

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Speaker 1: be mindful of giving the defense appropriate time to prepare

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Speaker 1: for a trial, because the last thing in the world

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Speaker 1: they want to do is go to the lengthy trial,

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Speaker 1: then have it go up on appeal in the event

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Speaker 1: of it conviction and have it overturned because the defense

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Speaker 1: council says, Judge, we did not have an adequate time

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Speaker 1: to prepare our defense, that this was a rush in

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Speaker 1: order to get this thing tried before the election, and

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Speaker 1: we were not able to adequately go through the mountains

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Speaker 1: of evidence, interview witnesses, and prepare our defense, and the

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Speaker 1: entire case gets thrown out on appeal. So the judge

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Speaker 1: is going to be balancing the timing of this case.

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Speaker 1: I think no judge is immune to the fact that

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Speaker 1: there's an election coming up on the impact of this

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Speaker 1: trial on that election, But they're also going to have

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Speaker 1: to be very careful full, whether it's the judge in Washington,

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Speaker 1: DC or the judge in South Florida, to give the

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Speaker 1: defense a fair and appropriate time in order to prepare.

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Speaker 2: With the other criminal indictments and the one possibly coming

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Speaker 2: in Georgia. How important is this indictment? Is this case?

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Speaker 1: Well, there's an interesting debate really over which case is

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Speaker 1: more easily provable by the prosecution. In terms of these

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Speaker 1: two federal indictments. Some people think that the mar Lago case,

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Speaker 1: while less important, certainly does not strike at the heart

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Speaker 1: of democracy the way the January sixth case does. But

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Speaker 1: some people think the evidence there is more straightforward and

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Speaker 1: more overwhelming. On the other hand, that's the case that

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Speaker 1: will ultimately go to trial in a venue that was

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Speaker 1: more favorable to President Trump. More people voted for him

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Speaker 1: in the district where that case will be tried, whereas

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Speaker 1: the district of Columbia is an area that former President

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Speaker 1: Trump lost overwhelmingly. In terms of import I don't think

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Speaker 1: there's anybody who could possibly say that the January sixth indictment,

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Speaker 1: this case that just came down, could be any more important.

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Speaker 1: It really strikes at the very heart of our democracy.

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Speaker 1: It essentially accuses the former president of losing the election

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Speaker 1: and refusing to see power to his rightfully elected successor.

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Speaker 1: There's nothing more important to our democracy than the orderly

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Speaker 1: transition of power, and prosecutors have a leg tier that

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Speaker 1: former President Trump attempted to subvert that very important procedural process.

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Speaker 2: Finally, what stood out to you about this indictment about

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Speaker 2: the structure or the facts.

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Speaker 1: One thing very striking about this January sixth indictment is

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Speaker 1: the enormous amount of work that went into putting this

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Speaker 1: indictment together in a relatively short period of time. It's

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Speaker 1: clear that the Special Council's Office has interviewed hundreds of

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Speaker 1: witnesses about the events surrounding January sixth, leading up to it,

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Speaker 1: on the events that occurred after that, and there are

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Speaker 1: other witnesses and another statement, no doubt that prosecutors have

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Speaker 1: and will use at a trial that we don't even

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Speaker 1: know about yet because the prosecution is not about to

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Speaker 1: show their entire hand in this indictment. So it's very thorough,

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Speaker 1: it's very detailed. I think it's going to keep the

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Speaker 1: defense guessing as to what other evidence may be out there.

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Speaker 1: We saw that happen in the mar Lago case, where

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Speaker 1: prosecutors withheld certain evidence when they first indicted the case,

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Speaker 1: and then in the superseding indictment, they showed that they

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Speaker 1: had more evidence than the defense even knew that they

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Speaker 1: had I suspect the same may be going on here.

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Speaker 1: Part of the risk of any defendant who's going to

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Speaker 1: try their case in public is that when they make

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Speaker 1: statements about the indictment, they are more or less locking

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Speaker 1: themselves into a particular position, and if it turns out

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Speaker 1: the prosecutors have more evidence that contradicts those statements, that

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Speaker 1: can ultimbly come back to haunt the defendant at trial.

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Speaker 2: Always so great to have you on the show, Bob,

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Speaker 2: and to get your insights, that's former federal prosecutor Robert

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Speaker 2: mens Up, partner maccarter and English. And that's it for

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Speaker 2: this edition of The Bloomberg Law Show. Remember you can

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Speaker 2: always get the latest legal news on our Bloomberg Law podcasts.

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Speaker 2: You can find them on Apple Podcasts, Spotify, and at

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Speaker 2: www dot bloomberg dot com, slash podcast Slash Law, and

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Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

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Speaker 2: you're listening to Bloomberg