Reaction Podcast: Trump Found Guilty
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Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. I'm just going to be honest right at the top. We just heard the guilty verdict in Trump's criminal trial moments ago, so I don't have anything written. And yes, we are going to do this live. But I do have the help of the law professor who has been helping us all along, who is Jessica Roth from Cardozo Law, also a former federal prosecutor.

Jessica, thank you so much for literally being available within 15 minutes of the jury coming down with a verdict in Trump's criminal trial. Welcome to the podcast and thank you for being here. Thank you. It's my pleasure to be here with you again. And in case listeners haven't heard, I will just read the headline. Trump has been found guilty in all 34 counts of falsifying business records in the hush money case.

I also should say, Jessica, that after the last podcast that we recorded, you said, you know, off the record, behind the scenes, my prediction is that we are going to get a verdict in this case late Thursday afternoon or early evening.

Like, who has been feeding you information from the Manhattan criminal court? Nobody's been feeding me information. And I really thought I was going to eat those words because, as you may know, we had gotten the word that the jury was actually going to go home for the evening at 430 this afternoon. And then it was a real fake out because then it turns out the jury actually said they had a verdict. And so they didn't go home. They came in with their verdict.

Okay, so of course, this is a big deal. This is the first time a former president has been, well, charged criminally. And it is also now the first time a former president has been found guilty of a felony.

There's a lot to talk about here. And first, I just want to talk about the legality of it all. And then I'm going to bring up, I think, some of the arguments we are going to hear about this case over the coming weeks and months about how, you know, questioning this verdict and we can sort of run through them. So first of all, how did the jury reach this decision? Of course, we'll never know what happened during deliberations unless somebody writes a book. And that's not out of the question, I guess. But

Sort of what conclusion did they ultimately have to come to in order to reach this verdict?

So there's a way in which probably their work was rendered easier by the fact that even though there were 34 counts in the indictment that they had to consider, the 34 counts all were for the same crime. So it was the same elements that the jury had to consider for each and every one of those 34 counts. And each of those 34 counts was related to a different record of the Trump organization. But the government's case was that

All of these 34 records were part of a common scheme to falsify the records of the Trump Organization, to conceal another crime,

And so, so long as the jury essentially credited the proof about what that scheme was, then in a sense, it was fairly easy for them to reach a verdict of guilty on each and every one of the 34 counts without having to go through too carefully the records as to each and every one of the 34 counts. And to render a guilty verdict as they did, what they had to find was that those 34 records were false and that they were falsified.

either by Trump himself, or the real theory here was Trump caused others to falsify these records in order to conceal a conspiracy to promote Trump's candidacy for office through unlawful means. And the chief unlawful means that the prosecution argued were illegal campaign contributions by Michael Cohen to Trump's candidacy for office. So Trump...

has now been convicted of a felony. There is an appeals process, as we discussed on the last podcast, which I imagine he will pursue. I want to keep talking about the legal questions here. And later on, I should say, my colleague Nathaniel Rake is just going to join to talk about the political repercussions, because this is historic in two big ways. It is the first time a former president has been convicted of a felony, but he's also a current candidate for office. And in fact,

the de facto nominee of the Republican Party for president. And so, of course, we want to talk about how Americans are going to perceive this, how this may or may not shift the polls. But while you are here,

I'm curious. I think the first thing that we are going to hear from the former president is this was done in Manhattan, one of the most liberal places in America, where a jury pool was liable to be far more Democratic and far more hostile to Trump than in most other places in the country. Of course, this did have to be unanimous. And New Yorkers are by no means unanimously liberal, unanimously anti-Trump or unanimously Democrats.

But how should we think about that piece of the argument that this was, as he'll call it, a kangaroo court and that it was done in one of the most liberal places in the country?

So one thing it's important to say right off the bat is that this was a prosecution by a state prosecutor, Alvin Bragg, the elected DA of New York County, Manhattan, and not by Joe Biden or anybody in the federal Department of Justice. Trump has been saying repeatedly that Joe Biden in some way is responsible for this prosecution. So it's really important that people know that the Department of Justice, that is part of the federal government that Joe Biden as president of the United States sits atop,

had actually nothing to do with this prosecution. This was entirely an independent of the federal government state prosecution. Although, Jessica, doesn't that cause its own separate problems? Because in many ways, Alvin Bragg is more partisan than the DOJ, right? He ran for office as a Democrat saying he was going to prosecute Donald Trump. We're probably going to see ads cut on exactly that point throughout the coming months. So yes, it's not part of the federal DOJ, but it is the work

ultimately, the prosecutorial work of somebody who is, statedly, a Democrat. Yes, it is a prosecution brought by an elected Democrat. There's no question. And that is a reason why, arguably, we shouldn't elect prosecutors in this country. Now, there are good counterarguments for electing prosecutors, but you are right. But I wanted to point out that it's not Joe Biden, just to make sure people are clear on that. And also because in the upcoming presidential election, Joe Biden will be Trump's

opponent, right? Not Alvin Bragg. So it's not prosecution brought in any way in the name of Trump's direct political opponent in the upcoming presidential election. But you're right that Trump has been complaining about the jury pool in Manhattan being Democratic, and he will likely raise that as an issue on appeal that he

couldn't get a fair jury in Manhattan because of the political leanings of Manhattan and how it voted. I expect that will be summarily rejected by an appellate court because the overall political leanings of an area is not a basis for moving a trial out of the venue in which it occurred. The reason we have

voir dire of potential jurors is to make sure that none of the individual jurors who are selected to serve in a case harbor bias, political or any kind, toward the defendant in the case. So there was screening here that was done very carefully by the judge to make sure

that these individuals who sat in judgment of Donald Trump did not have preconceived ideas about Donald Trump that they could not put aside in order to decide the case based on the evidence presented here. And notably, the jurors were not asked what political party they were affiliated with or who they voted for in the last election. And how much trust can Americans have in that system where

So jurors are expected to be honest, but of course can say whatever they want in those circumstances. Because I think, you know, trust in every institution is sort of at stake in American life today. And so what argument would you make, you know, to Americans who are like, I don't know about this? So nothing's perfect.

But the jurors were asked a lot of questions during the voir dire process here. And they were asked about, for example, organizations that they were affiliated with, right? Not political party, but organizations they may have been affiliated with, media they read, whether they had ever attended rallies that were pro or anti-Trump.

right, other ways of trying to suss out what might have been their political affiliation and any strong bias for or against Donald Trump. So it's not like there was no screening done to try to get a sense of people's biases. And the former president had the opportunity to exercise peremptory challenges, that is to strike jurors

without articulating any reason why, if he thought that there was something about their answers or frankly even their demeanor toward him that suggested that they would not be fair toward him. And the lawyers had the opportunity to scour the social media of these jurors as they went through the process to see if they could identify anything that these jurors had said on social media, for example, that would be suggestive of bias. So there really was quite a bit of screening here.

We've talked about what the repercussions may be. There's been some speculation that Juan Marchand, the judge in the case, may not have a particular large amount of sympathy for Trump, given how this case has all gone down and how he's violated gag orders and been fined accordingly. And it became somewhat personal for the judge in particular. You know, the former president was barred from saying things relating to family members of the judge, Juan Marchand. So...

This is really reading tea leaves here, but I guess what are the range of options for Marshawn in terms of sentencing or what the repercussions will be and then what you actually think might be the outcome? Yeah. So the sentencing will happen in the ordinary course. The sentencing would happen in a couple of weeks. It could be six to nine weeks or so. There's going to be some time for things to kind of cool off dramatically.

The judge has a lot of discretion here about what sentence he's going to impose. The law does authorize a sentence of imprisonment with a statutory maximum of four years imprisonment.

for each count, but it doesn't require a prison sentence. And generally, defendants convicted of this crime who have no prior criminal record would get probation or a fine, which are also authorized sentences here. There could be also something like conditional discharge where the judge opposes conditions on Trump. For some people that might look like home confinement.

So the judge is going to have the opportunity to now sort of take in what's happened here in terms of this verdict, get the input from the probation office, get the input from the parties, as well as argument about what they think is the appropriate sentence, and then make a decision. So I think it's important that there now be this time and the judge get the input from the parties, study the law himself.

perhaps consider what, to the extent there are similarly situated defendants, what sentences have been imposed there, and then make a considered judgment about what the sentence should be here. How does this all interact with the appeals process? Yeah.

So Trump is going to have to wait to appeal this conviction to a higher court until after he is sentenced. If there is some glaring error that happened during the trial, he could bring that to the court's attention now and ask for a new trial. But it's very rare that a new trial would be granted. And so the appeal to the next highest court, which is the appellate division of New York, which Trump has frankly been appealing to as

as much as he can at different stages of this process. That's where he would go next. But that appeal has to wait until he's actually been sentenced. And in the meantime, excuse my ignorance here, he's a felon?

So I would say no, actually. The judgment has not been entered. The judgment, which is what essentially under the law means a person has a felony conviction on their record, that happens at the time of entry of judgment, which follows the sentencing. So although colloquially many people are saying Trump is now a convicted felon, it's true. He's been convicted by a jury of 34 felony counts.

But that actual judgment against him wouldn't get entered until after the sentence. All right. So we can expect appeal. In the meantime, what are your final thoughts on how this case has unfolded so far? I think one thing that's just, I think, really important is that we got this far without incident in the courthouse. And that's really important that this trial unfolded incidentally.

in the ordinary course. There were so many things that were extraordinary about this trial. This was the first criminal trial against a former president, but we didn't lose any jurors in the course of the trial. We didn't have to substitute any alternates. When this trial started, I was nervous that six alternates wouldn't be enough.

because just there can be attrition in the normal course and also because I think there was just so much concern that people might feel that they just couldn't continue to serve for whatever reasons. So I take great comfort in the fact that regardless of the outcome, that the trial process unfolded without incident and that the jury rendered a verdict.

All right. Well, thank you so much for taking the time to join me in the immediate aftermath of all of this. I really appreciate it. Thank you, Jessica. It's my pleasure. Okay. Have a good evening. All right. Next up, we're going to talk about the political consequences of all of this with my colleague, Nathaniel Rakich. But first, a break.

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All right, we just heard about the legal ramifications of all of this from friend of the pod, Jessica Roth. Now we are going to talk about the political ramifications with senior elections analyst Nathaniel Rakich. Nathaniel, welcome to the podcast. Hey, Galen. Thank you.

historic day. Pretty crazy. And of course, as fate would have it, you told me the only time I'm not available on Thursday is between four and five o'clock. And I said, don't worry about it. It'll be fine. And of course, you were not available between four and five o'clock when we

really hit the fan. But you are here now. Yeah. And we have already laid out the legal ramifications. So now you're the star of the show, Nathaniel, and we're going to talk about politics. First and foremost, there's been a lot of polling done on whether this moment that we are in right now would

shape or reconfigure altogether the presidential election. And folks have asked this question in different ways. Like, if Trump is a convicted felon, would you reconsider your vote for him? Would you be more or less likely to vote for him? Do you think that he's guilty? All different kinds of questions that have given us somewhere between zero good information and some decently good information. To your best estimate,

Will this guilty conviction change public opinion in the 2024 election? Big question, Galen. If it has to be a yes or no answer... And your career depends on it. I think...

If it has to be a yes or no answer, I think I'm going to say yes. Obviously, we've all been like, you know, Teflon Don over the years, nothing seems to faze him. I think that is an exaggeration. I think the big things have noticeably impacted his standing in the polls. And I'm thinking here, like, Access Hollywood, January 6th.

They did make a dent. And this is a big freaking deal, obviously. Like, he's the first former president, and he's going to be on the ballot again. And he's been convicted of a crime. He's a convicted felon. So I do think that it is going to show up in public opinion. The real question is whether it is durable, right? We still have five months left, over five months until the election. And like, that is the rub. It doesn't really matter what people think today. It matters what people think in October and November when they're actually voting.

So why do I think this? This is not just based on vibes. This is based on the polls, as you mentioned. There are certain polls that I would definitely tell people to look at over other polls, and we can talk about some of the kind of common, like, honey traps that certain types of polls have. But the polls that I found most instructive for this were the polls that—there were these big kind of omnibus polls that asked, you know, among many things, like, who are you voting for in the 2024 presidential election, Donald Trump or Joe Biden? Right?

Later on, a lot of these polls, not a lot of these polls, three of these polls in particular, also asked, if Donald Trump is found guilty in the hush money trial, how would you vote in the election, Donald Trump or Joe Biden? Also, if he's found not guilty, how would you vote? And basically what I did in an article that I have out on the site right now that I magically wrote in the five minutes between the verdict and when it got posted. Nathaniel, how do you do it? Yeah.

is basically I compared the kind of initial horse race polls where people weren't primed with any information to the, in this case, guilty verdict polls. And basically what I found is that Trump does lose a significant amount of support. So things swing from Trump leading by one point to Biden leading by six points on average between these polls. Nationally. Nationally, yes. I just looked at national polls. Yeah.

So obviously, that seems like a big deal. Nathaniel, that's a BFD. That's a BFD. That's seven points. It is. It is seven points. Now, let me introduce a, you know, a complication, which is that asking voters to imagine how they will feel about something before it happens is

is tricky. In fact, people probably know about this from their own. There's all kinds of good psychological research on, you know, you ask someone, how are you going to feel if you get that promotion? I'm going to feel amazing. Everything's going to be great. And then they get the promotion and maybe in the immediate aftermath, they feel a bit better, but you ask them like two months or six months later and they don't feel any different. So interesting analogy. We are not always great at estimating how a future event will make us feel. Exactly. With that in mind,

Do we think we're about to see a six point shift in the national seven point shift in the national polls? Yeah, I mean, I think you you identify a very good point. And I think there are two questions to this. One is that that question was just hypothetical before when they asked it to people, you know, two weeks ago, or whenever these polls were conducted. And then the other is that you're asked also asking people to predict not how they're going to feel two weeks later when the verdict comes out, but actually like five months later, six months later when the election happens, right. And so I think between those two things, there's a

very real question about whether this is a durable shift or whether it will even happen at all. I do tend to think we will see some movement in the polls. Like, I think there is probably going to be absolutely blanket coverage of this conviction for the next couple of days. There are going to be a lot of people, I think, who

Well, and I should just say, Nathaniel, we did just learn from Jessica that he will not...

technically be a convicted felon until after his sentencing, which we just found out will be on July 11th. So he is colloquially will be... He has been found guilty of a felony. He's a convicted felon-elect, shall we say. He has not been entered into judgment. Yeah. Exactly, right. A presumptive convicted felon. Yes. But anyway, so I do think that there will be that discomfort and that...

some small share. And I should say like, yeah, like a seven point shift in the polls, obviously, in this polarized era, that is a huge deal. At the same time, Donald Trump has, you know, something like 40% of the vote. And like, it's still a majority of his supporters who are going to stay with him, right? It's not like, you know, like Republicans are abandoning him en masse, I expect the party for like apparatus, for example, to stick with him.

So that's an important context. I do think, though, that even if we see that shift, if in two weeks in our polling averages, Joe Biden has taken the lead...

I am skeptical that that is going to last. And the reason for that is that when you dig into the polls that I mentioned, that seven point shift, it's not uniform. It's not like 7% of people are shifting from Donald Trump to Joe Biden. It's actually the case, and let me make sure I pull up the correct numbers, that in terms of kind of their raw support, Donald Trump's number goes down by six points, but Joe Biden's number only goes up by one point.

another BFD. What's happening here is that Trump supporters in these polls are going from Trump to undecided or I believe one of the polls had kind of a vague quote someone else option.

That is a very convenient place for people who want to vote for Trump to park their support for basically the next month or so while this is happening to Trump and while it is, you know, not a great look to be supporting a convicted felon elect. But the fact that they're not switching to Biden is.

suggests to me that these are basically Republican voters who will eventually come home. And again, five months until the election, there are going to be more news stories, including some that are bad for Biden, that could jostle people, or even just kind of natural, you know, when people are faced in the voting booth with that choice, they're not going to be able to vote for Joe Biden because they are a Republican and a Trump supporter. Well, okay, Nathaniel, let's do a little debating here, which is that... So...

6% of Americans go from supporting Trump to parking their support in the I don't know or somebody else or whatever. 5%. So Trump goes down 6%. Undecided goes up 5%. Biden goes up 1%. Okay.

We have been saying for months that it is a problem for Biden that a lot of people who might otherwise be supporting him are currently parking their support in the I don't know or somebody else parking lot. Yeah.

And so now perhaps perhaps that reverses, but perhaps it levels the playing field a little bit in that there are even more Republicans or natural Trump supporters who are thinking, am I going to vote at all in this election? Maybe this has all just made me a little bit sick. And so, yes, it's sort of looks like the kind of change that could be easily reversed in

But on the other hand, I don't think Democrats today feel like whatever decline Biden has seen amongst young voters or Latino voters could just be easily reversed by getting closer to the election. Of course, that is an argument. People make that argument, but it's to be seen. And so perhaps that's one other way of looking at it.

Yeah, no, I completely agree with that. Like, there's no way that this is like a good thing for Donald Trump or even like something that he should like not worry about at all. Like, this is assuming that that drop in say six point drop in support happens, which as you mentioned, it could not I think it probably will some some smallish drop in support.

But like that is a problem. That means he will have work to do to win people back over. And it could happen naturally and it might not. And also it's like all of those people. Is he going to win all of those people back? Maybe he wins most of them back. But some of them don't vote, like you said, because they're just kind of disgusted. Maybe those people also like face the prospect of going to the polls on November 5th. And instead of saying, well, I'm just going to vote for Trump.

Donald Trump because I actually just like him better than Joe Biden, even though he's convicted. Maybe they'll be like, I can't even bring myself to go to the polls. That's absolutely true. And like, it's also worth noting that like a one point gain for Biden, that's not nothing in like, I think Wisconsin or Michigan, right? If he gains one point,

Biden would be in the lead right now. And like, that is a big deal in an election that is so close. So yes, in an election that is going to be close, it's a game of inches. If Donald Trump permanently loses even 2% support from this, that is something that could have a tangible impact on the election.

But it is certainly also not something that is going to doom Donald Trump either. A friend of the podcast, Nathan Gonzalez, has a catchphrase. It's, you know, the way he applied it to this was that the presidential election was competitive before the guilty verdict, and it's competitive after the guilty verdict. And I think that's what people need to bear in mind. You mentioned at the top the idea of telepathy.

Teflon Don. And I think people have gotten pretty used to a Trump scandal at this point and may be asking the same question we're asking here, which is, is this really going to stick? We have seen other high profile scandals that have moved the polls. Undoubtedly, the Access Hollywood tapes are an example of that. We also saw things that were genuinely policy related, like when the

the House and Senate were on the verge of repealing the ACA, Trump has, I think, some of his lowest approval ratings for his entire presidency. So there are things that break through and make Americans turned off by Trump. And it may be harder today for something to break through in an environment where people are pretty used to this stuff.

What's that case? What's the case against Teflon Don in this situation? Yeah, exactly. I think you're absolutely right. We mentioned January 6th being a big one that really sent his approval rating in the toilet. The government shut down while he was president, which is something you maybe wouldn't think would actually be a big deal, but it really did drive his approval rating down. I think maybe like

Bounce back, Don, is like a better term, right? Like, it's not Teflon. Things affect him, but he does tend to revert to this mean over time. And I think, again, that's what I'm kind of, that's my default expectation. Although I should mention, like, yes, there's a lot of uncertainty here. And it certainly helped. Well, that dynamic has certainly helped by the way that fellow Republicans react to the scandals. January 6th, yep.

January 6th, we saw a big reaction, a big negative reaction from Republicans that was ultimately reversed. I'm trying to look at my transom at the same time that we are having this conversation, but just to give you a taste, you know, how Speaker Johnson called today a shameful day in American history. So that gives you some sense of where the mainstream, like the sort of core of the Republican Party is at today and what, you know, Trump supporters will be hearing from the people whose opinions they care about.

Right. And I think another, the example I keep coming back to for this is the Access Hollywood tape. That was something that obviously happened in October right before the election. So in an even more heated environment than we're in right now. But that did have a negative impact on his polls. In our average at the time, he went down by like one or two points after that happened. But...

But obviously, he ended up recovering and he won that election. And within a month after Access Hollywood, he was back, he was actually higher, polling higher than he had been polling before the scandal. And part of that is just the election was getting closer and people were getting off the fence. Part of it was also the Comey letter, right, where James Comey, the FBI director at the time, wrote a letter to, I believe it was Congress, that said basically, you know, Hillary Clinton's emails are a thing. And

That, I think, is a good example of like, again, the news cycle is not going to be bad for Trump indefinitely for the next five months. There are going to be bad cycles for Biden. And when that happens, people who might be inclined who might not be with Trump right now because they're kind of like, I'm not comfortable with this conviction. They might be reminded of why they really need to stop Joe Biden and therefore their horse is Trump. And they'll get back on the bandwagon at that point.

All right. Lastly, this is going to be high season for for polls and for hot takes on polls. And we are going to be on the lookout for how the public is reacting. But when you see a poll that comes out within 24 hours of a big event, you should be skeptical. What other kinds of polls should folks be skeptical of in doing analysis of this moment?

Yeah, so one really important one is that something you'll see a lot is a poll that asks people, does X event make you more or less likely to vote for, in this case, Donald Trump, right? Those polls can be very misleading because they lend themselves to a lot of expressive responding, which is that people won't take it literally, right? Like, obviously, something like 90% of people have already basically made up their mind about who they're going to vote for. And

So realistically, probably 90% of people should answer that question. It won't change my mind. But in fact, you don't see that a lot of people say that it will affect their vote. But what ends up happening is that all the people who are supporting Trump say, either it won't affect my vote, or like, it makes me more likely to vote for him. And all the people who are already supporting Biden saying, Oh, yeah, it makes me less likely to vote for Trump. But like, they're

They're not voting for Trump already. Their opinions kind of like don't matter in this case. And so what really you're interested in is like, is this going to make independent voters, undecided voters to be more specific, more or less likely to vote for Trump? And so for that, you have to dig into the crosstabs and then it becomes a much, the margin of error becomes much higher and it's less reliable. So that's why I've liked looking at this head to head. And now that we have this verdict,

you will probably see horse race polls, right? That you can directly compare and we at FiveThirtyEight will aggregate them and you'll be able to see the average and whether that goes down for Trump or not. But yeah, those more or less likely polls don't put a lot of stock in them. All right. Don't you worry, folks. We will be back to talk about the polls in a responsible way. But for now, Nathaniel, thank you so much for joining me.

Thank you, Galen. That's it for today. Of course, a big day and we will have more for you next week. For now, my name is Galen Druk. Our producers are Shane McKeon and Cameron Tretavian and our intern is Jayla Everett. You can get in touch by emailing us at podcast.538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening and we will see you soon.