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

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Speaker 2: Before this year, no American president had ever been criminally charged. Now,

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Speaker 2: in the last four months, Donald Trump has been indicted

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Speaker 2: three times, once by Manhattan District Attorney Alvin Bragg in

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Speaker 2: New York and twice federally by Special Council Jack Smith.

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Speaker 3: The attack on our nation's capital on January sixth, twenty

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Speaker 3: twenty one, was an unprecedented assault on the seat of

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Speaker 3: American democracy. It is described in the indictment it was

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Speaker 3: fueled by lies, lies by the defendant targeted at obstructing

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Speaker 3: a bedrock function of the US government, the nation's process

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Speaker 3: of collecting, counting, and certifying the results of the presidential election.

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Speaker 2: The latest indictment is the most serious. Is charged with

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Speaker 2: conspiring to defraud the United States government that he once led,

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Speaker 2: and conspiring to deprive American voters of the right to

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Speaker 2: have their votes counted. The indictment alleges that for months

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Speaker 2: Trump knowingly spread lies about the election being rigged in

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Speaker 2: an unprecedented effort to block the peaceful transfer of presidential power.

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Speaker 2: Trump's pressure campaign against former Vice President Mike Pence is

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Speaker 2: painted as the lynchpin of the scheme to defraud America.

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Speaker 1: I really do believe that anyone who puts himself over

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Speaker 1: the constitution should never be president of the United States,

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Speaker 1: and anyone who asks someone else to put themselves over

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Speaker 1: the constitutions should never be President of the United States.

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Speaker 2: At GEA joining me is former federal prosecutor Jessica Roth,

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Speaker 2: a professor at Cardozo Law School. Jessica, what stands out

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Speaker 2: to you in this indictment?

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Speaker 4: These are the most serious charges that have been filed

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Speaker 4: to date against the former president. They allege a vast

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Speaker 4: conspiracy to overturn the results of the twenty twenty presidential

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Speaker 4: election and to prevent the lawful transfer of power and

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Speaker 4: to deprive the American citizenry of the lawful counting of

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Speaker 4: their votes. These are charges that allege conduct that really

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Speaker 4: threatens the heart of our democracy, and if proven beyond

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Speaker 4: a reasonable Nett trial, will ensure that the former president

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Speaker 4: goes down in history as having tried, through a concerted

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Speaker 4: effort and conspiracy with others, to prevent the lawful transfer

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Speaker 4: of power and to hold on to power through illegal means.

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Speaker 2: Those who watched the January sixth Committee hearings are familiar

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Speaker 2: with a lot of the facts and the people here,

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Speaker 2: but the details on this attempt to leverage the Justice Department.

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Speaker 2: When the acting Attorney General told Trump that the Justice

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Speaker 2: Department could not and would not change the asthma of

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Speaker 2: the election, Trump responded, quote, just say that the election

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Speaker 2: was corrupt and leave the rest to me and the

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Speaker 2: Republican Congressman. What is your take on this attempt to

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Speaker 2: leverage the Justice Department?

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Speaker 4: The allegations about Trump's efforts to use the Justice Department

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Speaker 4: in furtherance of his scheme to submit false slates of

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Speaker 4: electors to Congress that was known before there had previously

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Speaker 4: been testimony by the former members of the Justice Department

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Speaker 4: about those conversations and communications with Trump. I agreed that

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Speaker 4: the statement that is contained in the indictments and attributed

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Speaker 4: to the former president, in which he says, just say

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Speaker 4: there was fraud, essentially, and leave the rest to me

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Speaker 4: and the Republican members of Congress, is chilling, and it

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Speaker 4: demonstrates the former president's intent, his knowledge that he was

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Speaker 4: using illegal means in order to stay in power. And

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Speaker 4: that's really critical because the former president likely will argue

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Speaker 4: at trial that he honestly believed that he had won

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Speaker 4: the election, and that therefore he is not guilty of

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Speaker 4: any crime in connection with trying to stay in power.

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Speaker 4: But you can't use illegal means in order to stay

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Speaker 4: in power even if you think that you actually won

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Speaker 4: the election. So those statements in the indictment, such as

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Speaker 4: just leave it to me and the Republican members of

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Speaker 4: Congress to me, are very demonstrative of his criminal intent.

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Speaker 2: Going to that, the indictment repeatedly says that Trump knew

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Speaker 2: his fraud claims were false. Starting on page one, it says,

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Speaker 2: the defendants spread lies that there had been outcome determinative

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Speaker 2: fraud in the election, that he had actually won. These

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Speaker 2: claims were false, and the defendant knew that they were false,

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Speaker 2: And it recites how he was told by campaign staff,

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Speaker 2: white House official, state government representative that there was no

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Speaker 2: evidence of fraud, and in various things he said, for example,

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Speaker 2: that in Pennsylvania there had been two hundred five thousand

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Speaker 2: more votes than voters, and that five thousand dead people

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Speaker 2: voted in Georgia. Is it emphasize so much because it's

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Speaker 2: part of what the prosecutor has to prove at trial

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Speaker 2: or in anticipation of what Trump's defense might be.

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Speaker 4: I think it's both. The indictment says that Trump knew

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Speaker 4: that his claims were false, and it says so repeatedly

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Speaker 4: in the allegations, and in effect, it's a refrain throughout

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Speaker 4: the indictment that Trump made a statement claiming that there

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Speaker 4: had been fraud in the election in a state, and

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Speaker 4: then was told by his top officials and by officials

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Speaker 4: in that state that there had been no such fraud

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Speaker 4: or irregularity, and that he nevertheless continued to perpetuate the

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Speaker 4: lie that there had been fraud. That's part of the

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Speaker 4: narrative of this indictment is showing that the former president

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Speaker 4: continued to repeat lies that sewed distrust and people's concerns

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Speaker 4: about the legitimacy of the election, particularly his followers, and

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Speaker 4: then he capitalized on that sense of distrust in order

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Speaker 4: to further his scheme to substitute false electors for the

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Speaker 4: legitimately elected electors for Joe Biden. It is not necessary

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Speaker 4: legally to succeed on these charges to show that the

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Speaker 4: former president knew that all of his statements were false,

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Speaker 4: but it is a far more compelling story, and I

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Speaker 4: think more comprehensible to a jury. If the jury is

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Speaker 4: persuaded that the former president did know that his claims

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Speaker 4: were false, and you.

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Speaker 2: Mentioned the fake electors, it seems like there was fraud

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Speaker 2: on top of fraud because Trump and his co conspirators

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Speaker 2: lied to some of the fake electors and assure them

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Speaker 2: that their certificates would be used only if Trump succeeded

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Speaker 2: in litigation in the States. So it was lie on

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Speaker 2: top of lie.

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Speaker 4: Yes, there were multiple levels to the lies and the

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Speaker 4: fraud that is alleged in the indictment. The scheme to

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Speaker 4: create these false plates of electors in the states that

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Speaker 4: Trump wanted to contest involved, in some cases, lying to

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Speaker 4: those electors who had been pledged for Trump, telling them

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Speaker 4: that this alternative slate of electors would only be used

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Speaker 4: and submitted to Congress if there were a court ruling

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Speaker 4: in Trump's favor finding that in fact he had won.

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Speaker 4: And the reason why Trump and his co conspirators had

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Speaker 4: to lie to these electors was because some of them

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Speaker 4: raised concerns that, in fact, they would be acting unlawfully

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Speaker 4: if they presented themselves as of the legitimately elected electors

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Speaker 4: in their states, and so in order to get them

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Speaker 4: to actually go along with the scheme of creating the

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Speaker 4: false flate of electors to be submitted to Congress. They

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Speaker 4: had to be reassured falsely that those alternative slates that

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Speaker 4: included them would only be used in the event of

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Speaker 4: a court ruling in Trump's favor, but of course there

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Speaker 4: were no such court rulings in Trump's favor law in

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Speaker 4: state after state after state where he contested the results

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Speaker 4: of the election, which is important also because it shows

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Speaker 4: again that he was getting feedback in real time, not

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Speaker 4: only from his top officials and from officials in the states,

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Speaker 4: but from state courts that there had been no fraud

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Speaker 4: that would have changed the result in any of those states.

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Speaker 4: And again that goes to his criminal intents.

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Speaker 2: The indictment refers to Vice President Mike Pence or the

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Speaker 2: office of the Vice President more than one hundred times.

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Speaker 2: Will Pennce be the star witness.

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Speaker 4: It is hard to imagine this case going to trial

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Speaker 4: without Mike Pence's testimony. I don't know if he will

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Speaker 4: be the star witness, but he will certainly be among

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Speaker 4: the most important witnesses in the case. The indictment refers

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Speaker 4: to numerous communications that the former vice president had with

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Speaker 4: the President refers to contemporaneous notes that the former vice

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Speaker 4: president took regarding those conversations, And it's really in those

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Speaker 4: communications with the former vice president that we see really

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Speaker 4: significant portion of the pressure campaign that Trump brought to bear,

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Speaker 4: particularly at the end stages of the alleged conspiracy, to

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Speaker 4: try to get the vice president to stop the certification

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Speaker 4: of the legitimate electors, to send the matter back to

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Speaker 4: the States, or to accept the false plates of electors,

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Speaker 4: so he will be a key with it.

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Speaker 2: So there are six unnamed co conspirators, and it's fairly

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Speaker 2: obvious who five of them are. Why do you think

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Speaker 2: the Special Council decided not to charge them along with Trump?

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Speaker 2: Is it to move the case faster to trial? Are

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Speaker 2: there other reasons?

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Speaker 4: I think the most likely explanation is having to do

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Speaker 4: with an effort to try to get this case to

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Speaker 4: trial as soon as possible. The more defendants there are

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Speaker 4: included in an indictment, the more lawyer schedules need to

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Speaker 4: be taken into account in scheduling any matter, including the trial,

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Speaker 4: the more motions there will be to be decided. So

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Speaker 4: I think the most significant factor here is likely the

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Speaker 4: Special Council sense of urgent see in trying to get

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Speaker 4: this matter scheduled for trial as soon as possible and

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Speaker 4: before the election. There may be other reasons as well.

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Speaker 4: I imagine that some of the motions that might be

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Speaker 4: filed had there been other defendants names here, would include

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Speaker 4: those for severance, the argument that they couldn't get a

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Speaker 4: fair trial if tried alongside the former president, about whom

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Speaker 4: so many people have such strong feelings. They may have

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Speaker 4: had inconsistent defenses pointing the singers at one another, and

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Speaker 4: so I think, anticipating those motions as being among the

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Speaker 4: issues that would have to be decided by a trial

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Speaker 4: court before trial, it was likely wise of the Special

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Speaker 4: Counselor to bring this indictment against the single defendant, mister Trump,

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Speaker 4: who clearly is his priority, so that those other issues

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Speaker 4: wouldn't drag down the timeline of the case.

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Speaker 2: The Special Council said, the investigations continuing, and I'm wondering

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Speaker 2: if these six co conspirators, you know, aren't sleeping too

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Speaker 2: well thinking that they will be charged.

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Speaker 4: I imagine that they will be charged, or at least

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Speaker 4: most of them. The fact that they were included in

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Speaker 4: this indictment as co conspirators with their roles in the

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Speaker 4: conspiracy described means that the Special Council presented evidence to

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Speaker 4: the Grand Jury about the involvement of those individuals and

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Speaker 4: clearly must feel that he has enough evidence to indict them.

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Speaker 4: So I think it was a strategic decision based mostly

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Speaker 4: in concerns about timing that explains why they were not

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Speaker 4: included in this indictment. I imagine that those individuals are

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Speaker 4: not sleeping well and are considering their options, including whether

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Speaker 4: to pursue a plea agreement with the prosecutor's perhaps its

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Speaker 4: even one that includes cooperation against the former president or others.

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Speaker 4: So I think it's too soon to say exactly what's

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Speaker 4: going to happen with respect to those other individuals, but

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Speaker 4: I would anticipate that they will be charged in some form.

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Speaker 2: There's no charge of insurrection or sedition, and it seems like,

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Speaker 2: you know, the facts are there, why do you think

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Speaker 2: he didn't charge insurrection or addition.

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Speaker 4: The Special Council's decision not to include charges of insurrection

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Speaker 4: or seditious conspiracy, I think reflects an effort to keep

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Speaker 4: the case as simple and strong as possible and to

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Speaker 4: avoid getting bogged down in litigations about the viability of

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Speaker 4: those other charges, and so I think it was a

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Speaker 4: strategically sound decision. The charges are set forth and misindictment

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Speaker 4: appear to be supported by very strong evidence and a

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Speaker 4: clear narrative, and they don't raise the issues, including those

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Speaker 4: grounded in the First Amendment, that some of those other

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Speaker 4: charges might raise. So I think that even though the

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Speaker 4: facts do lend themselves to an interpretation that might have

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Speaker 4: supported such charges, by not including those charges in this indictment,

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Speaker 4: a special council of boys having to litigate those questions

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Speaker 4: that are difficult ones. And instead, the way these charges

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Speaker 4: are framed as broad conspiracies will allow much of that

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Speaker 4: evidence to come in in any event to explain the

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Speaker 4: conspiracy because they are relevant to it, without bogging the

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Speaker 4: case down in litigation about the legal issues that would

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Speaker 4: arise with respect to those charges.

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Speaker 2: So I want to talk about some of the defenses

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Speaker 2: we heard from Trump's attorney John Lorow last night. First,

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Speaker 2: political interference in the election, something Trump has been saying

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Speaker 2: over and over in his rallies and interviews that might

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Speaker 2: work in the public But would that even be allowed

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Speaker 2: as a defense at trial?

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Speaker 4: No, that is not a defense one could raise at trial.

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Speaker 4: There is a claim that is sometimes pursued by defendants

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Speaker 4: of selective prosecution, including that the prosecution is politically motivated.

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Speaker 4: That is a very very difficult claim to establish, and

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Speaker 4: judges usually do not entertain that without any evidence to

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Speaker 4: support it. And I don't imagine that the judge in

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Speaker 4: this case would entertain that argument here either. So I

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Speaker 4: think that the fact that mister trumpayers are making those

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Speaker 4: claims in the court of public opinion advance his political interests,

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Speaker 4: but they don't give rise to a valid legal defense.

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Speaker 2: Another thing was a free speech defense. Loro said, an

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Speaker 2: administration has criminalized the free speech and advocacy of another administration,

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Speaker 2: and Rudy Giuliani also said, you know, this is against

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Speaker 2: free speech.

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Speaker 4: So this is a really important point. The indictment alleges

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Speaker 4: conspiracies to obstruct the certification of the electors and the

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Speaker 4: electoral process, and does not rely solely on statements by

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Speaker 4: the former president and his associates, who are alleged to

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Speaker 4: be co conspirators. Here, this is not the criminalization or

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Speaker 4: attempted criminalization of speech alone. Instead, what is charged are

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Speaker 4: conspiracies that involve action, conduct, conduct, including the recruitment of

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Speaker 4: these stake electors conduct, including efforts to pressure the members

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Speaker 4: of Congress and the former vice president to accept the

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Speaker 4: sake electors and to stop the certification process. So it

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Speaker 4: is just wrong to claim that this is an effort

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Speaker 4: to prosecute someone for their speech. This is a prosecution

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Speaker 4: for conduct and a criminal conspiracy in which speech was used,

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Speaker 4: of course, because that is how people communicate with one

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Speaker 4: another to conduct the conspiracy. And also, the former president's false,

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Speaker 4: repeated claims that he had won the election were part

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Speaker 4: of the scheme that is alleged because they helped answer

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Speaker 4: so distrust among his followers in the results of the election,

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Speaker 4: to sort of lay the groundwork for them to accept

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Speaker 4: the proposition that there had been fraud and to accept

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Speaker 4: these fake electors. But he is not being prosecuted simply

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Speaker 4: for lying about the election, and that's really important to remember.

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Speaker 2: Finally, adviceive counsel on this. I've heard before that Trump

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Speaker 2: was just relying on what his attorneys told him.

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Speaker 4: So there is a defense that can be raised as

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Speaker 4: advice a council, but it does not apply here. It

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Speaker 4: requires that a person rely in good faith on the

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Speaker 4: advice of council to establish that they did not believe

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Speaker 4: that what they were doing was unlawful. The facts that

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Speaker 4: are alleged in this indictment are inconsistence, with that being

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Speaker 4: a valid defense here. This indictment lays out all of

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Speaker 4: the advice, including legal advice, that mister Trump got from

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Speaker 4: his attorneys, the attorneys in the White House Council's office,

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Speaker 4: attorneys at the very top of the Department of Justice,

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Speaker 4: all of whom told him that the scheme to use

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Speaker 4: false electors who had voted for Trump and to substitute

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Speaker 4: them for the Biden legitimately elected electors was meritless and

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Speaker 4: had no grounding in law. So the legal advice that

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Speaker 4: he got was that he couldn't do what he did. Instead,

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Speaker 4: he chose to rely on counsel he got from outside advisors,

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Speaker 4: lawyers among them who are now among the unnamed co conspirators.

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Speaker 4: But even those lawyers, at various points acknowledge that what

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Speaker 4: they were saying was severely flawed and that there was

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Speaker 4: not a good legal basis for it, And the very

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Speaker 4: fact that they are charged as co conspirators shows that

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Speaker 4: they were or allegens that they were part of the conspiracy.

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Speaker 4: As opposed to lawyers providing advice in good faith on

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Speaker 4: which the former president relied in good faith. So merely

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Speaker 4: the fact that somebody who is a lawyer gave you

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Speaker 4: a theory that you could pursue that you liked, and

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Speaker 4: you chose that rather than the legal advice you were

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Speaker 4: getting from the lawyers who are in official positions, who

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Speaker 4: worked in the government, and who you had appointed to

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Speaker 4: their positions because you thought they were of good judgment.

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Speaker 4: Just because you chose one set of lawyers over the

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Speaker 4: other does not give you automatically an advice of council

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Speaker 4: defense timing.

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Speaker 2: Trump has four trials already scheduled between October of this

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Speaker 2: year and May of next year, two of them criminal.

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Speaker 2: Is there any way this case could be tried before

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Speaker 2: the election.

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Speaker 4: It will be very difficult to get this case tried

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Speaker 4: before the election, but I think it is possible. It

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Speaker 4: would require several things to happen, including the March twenty

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Speaker 4: twenty fourth trial of the case brought by to Manhattan

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Speaker 4: District Attorney Alvin Bragg, to be moved. District Attorney Bragg

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Speaker 4: has indicated in public remarks that he may be open

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Speaker 4: to moving his trial date in the interests of advancing

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Speaker 4: to the federal cases, and so if that were to happen,

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Speaker 4: that would open up a window in early twenty twenty

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Speaker 4: four before the May twenty twenty four dates in the

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Speaker 4: Florida case. So that's one necessary thing that has to

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Speaker 4: happen is the movement of that trial date. Another would

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Speaker 4: be that the judge presided over this case in the

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Speaker 4: District of Columbia would have to decide that it is

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Speaker 4: important to get this case on the calendar before the

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Speaker 4: election and schedule it accordingly, and to move the case

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Speaker 4: along expeditiously.

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Speaker 2: This looks like a more complicated prosecution than the classified

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Speaker 2: documents case. What are the main obstacles for the prosecution

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Speaker 2: getting in the way of a guilty verdict here?

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Speaker 4: This is more complicated than the Florida document's case in

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Speaker 4: the sense that it is a broad set of conspiracy

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Speaker 4: charges encompassing a good deal more conduct and involving more individuals,

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Speaker 4: and it will involve I believe, more witnesses than the

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Speaker 4: Florida case would. That said, it does not appear to

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Speaker 4: include classified information, and so for that reason I think

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Speaker 4: that it will be easier to move it forward more

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Speaker 4: expeditiously than the Florida case, which does involve the classified

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Speaker 4: information about which there will likely be litigation in terms

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Speaker 4: of what can be shown to the jury and use

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Speaker 4: in court. So as a practical matter, I think that

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Speaker 4: the challenges will be just getting all of the discovery

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Speaker 4: to the defense in time, litigating any pretrial motions that

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Speaker 4: are necessary, and then presenting the case, which, like we

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Speaker 4: will involve quite a few witnesses and documentary evidence in

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Speaker 4: an expedition's manner. In terms of actually getting a guilty verdict,

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Speaker 4: there's the challenge that I think is present in any

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Speaker 4: case involving the former president of finding a jury that

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Speaker 4: can unanimously agree on a verdict, given how polarizing a

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Speaker 4: figure he is. And then, because the prosecution will have

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Speaker 4: to prove criminal intent, that will be a challenge, because

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Speaker 4: even though the evidence is set forth in the indictment

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Speaker 4: is very strong, Nevertheless, Trump will likely argue first that

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Speaker 4: he thought that he had won the election and because

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Speaker 4: of that he can't be guilty of any crime, and

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Speaker 4: at least one juror may buy that argument. And second,

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Speaker 4: he may persuade at least one juror whether he thought

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Speaker 4: he had lost the election or not, that he nevertheless

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Speaker 4: still lacked criminal intent with respect to using these other

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Speaker 4: means of trying to stay in power. And the former

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Speaker 4: president is somebody as to whom it is challenging to

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Speaker 4: him down his intent. So I think that those will

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Speaker 4: be the biggest challenges at this trial.

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Speaker 2: Thanks so much for taking the time to be on

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Speaker 2: the show, Jessica and to lend us your insights. That's

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Speaker 2: Jessica Rob, a professor at Cardozo Law School, And that's

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Speaker 2: it for this edition of The Bloomberg Law Show. Remember

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Speaker 2: you can always get the latest legal news on our

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Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 2: and at www dot Bloomberg dot com, slash podcast slash Law,

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

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Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

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Speaker 2: and you're listening to Bloomberg