What Comes Next In Trump's Trials
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We've never confronted these questions before, and so it's giving us a whole body of law on issues of immunity and privilege and what Article 3 of the 14th Amendment means, right? These are questions that just never came up before. Hello and welcome to this President's Day edition of the FiveThirtyEight Politics Podcast. I'm Galen Druk.

What are the legal limits of presidential behavior? It's a question that is central to the 2024 election, as former President Trump faces 91 criminal charges across four different cases. There's another question of how presidents ought to behave, which is more up to the voters than the courts, but the two aren't totally separate. Poll after poll has shown that while Americans favor Trump over Biden today, were Trump convicted of a felony, they would prefer Biden.

So today we're going to review where Trump's legal liability stands. And just so we're all on the same page, the criminal cases that we're talking about are one, the Manhattan case, sometimes called the hush money case, where Trump is accused of falsifying business documents to cover up payments to Stormy Daniels. The federal classified documents case in which Trump is accused of mishandling sensitive government documents and obstructing government efforts to recover them.

Three is the federal January 6th case, where Trump is accused of attempting to overturn the 2020 election and stay in power despite losing. And then lastly, for the Georgia election case, in which Trump is being tried for racketeering and conspiracy to overturn Georgia's 2020 election results. Trump is also facing civil charges in New York that could prove costly, if not carceral.

And there have been some significant developments in these cases. Last week, the judge in the New York hush money case set a trial date for March 25th, meaning it's now expected to be the first of these cases tried. Also last week, Fulton County DA Fannie Willis testified in an effort by defendants to get her removed from the case and the indictments dropped based on accusations that she had a conflict of interest in her relationship with the special prosecutor on the case.

And as we tape this podcast right now, to be totally transparent, we're recording this podcast early Friday afternoon, but we are waiting for a decision in Trump's civil fraud case in New York, in which he's accused of inflating his net worth.

Here with me to discuss it all, that's a lot to cover, is Jessica Roth, professor of law at Cardozo Law School. She was also previously a federal prosecutor in New York. Welcome to the podcast. Thanks for having me. Okay, so are you like caffeinated? Are you ready to go? We got a lot to cover today. There is a lot to cover. So I want to start with a big question and then we'll get into the nitty gritty. Hearing all of that, in your estimation, which case poses the biggest legal risk to former President Trump today?

The most serious case, in my opinion, is the one brought by special counsel Jack Smith with respect to the January 6th riot and the efforts preceding that to overturn the 2020 election results. So the allegations are extremely serious in that case. He's charged with counts of conspiring with others to obstruct the official proceeding in Congress, which was the certification of the results of the Electoral College.

and conspiring with others to deprive people essentially of the counting of their votes. Those are incredibly serious charges. And I have confidence in the special counsel and his team and their ability to actually carry their burden of proof with respect to those charges and to do it in a streamlined way given in part that they've only charged former President Trump in that case. And this is part of the reason that Trump has claimed that he has presidential –

immunity. And that case reached a federal court of appeals where they said, no, in fact, you do not have blanket immunity as president of the United States.

How are we expecting that to proceed? Is it clear at this point that the Supreme Court will weigh in? No, it's not clear at all. We're waiting for a decision from the Supreme Court, which really could come imminently because Trump filed his emergency application asking for a stay of the mandate of the District of Columbia Court of Appeals. That mandate, when it is issued, will send it back to the trial court to actually restart the proceedings and set a trial date.

So Trump has asked the U.S. Supreme Court to hold off, right, to hold off the case from going back to the trial court. The special counsel responded within a matter of days rather than a week, which the Supreme Court had given him. And then Trump filed his reply. So that's fully briefed before the U.S. Supreme Court. And they literally could rule on the application for this day at any moment. And if Trump is found guilty in that federal January 6th case, what could be the potential consequences?

He could be facing up to 20 years imprisonment on some of those charges. Some of them are lesser, about five years. The judge also has authority, if he were convicted of all the charges, to run the sentences consecutively. So he could essentially stack the statutory maximum for all of them. Would he actually be facing death?

The statutory maximum of up to 20 years, no, that's unlikely given that he has no criminal record. But nevertheless, the allegations are as serious as they could be. I mean, at their heart, the facts that are charged are that he was conspiring with others to overturn the results of a democratic election through various means, including intimidation, leaning on people in state office to falsify the results of their state elections.

election for the electors and ultimately culminating in the acts of violence on January 6th. What do you think is the likelihood that this case is heard before the election? It is hard to judge. I

I would say the biggest question mark about that timing is how quickly the U.S. Supreme Court rules. If the Supreme Court says next week that they're not granting a stay and they're not taking, they're not going to take the case, then the case immediately goes back to the trial court to Judge Chetkin, who has been very clear that she is trying to get this case to trial as soon as possible, giving the defense a full opportunity to prepare for trial. So she's already made clear that the case is currently off the docket and

The defense is no longer required to respond to any motions by the special counsel while the stay is in place. But she's also said as soon as the mandate comes back to her, she's going to restart the case. And that means given the calendar that had been set previously before the stay went into place, about three months are left on the pretrial calendar. So...

In theory, we could see this case starting trial in District of Columbia in about June. And so if it takes a couple months to try the case, in theory, it could be fully resolved before the November election.

So what we're saying here is if you're listening to this podcast and you cover American politics for a living, a.k.a. myself, don't plan any summer vacations. But we said that there's the political component of this as well as the legal component. And so I looked up some polling on most of the cases that we're going to talk about. In this case in particular, you got asked Americans –

sort of which case you see as the most serious against the former president. And they said the January 6th case, most Americans said, was the most serious case against Trump. And according to a CNN poll, the majority of Americans want this case decided before Election Day. Now, of course,

Americans don't get a say in all of that. That's going to be up to the Supreme Court. But do you have a sense that the Supreme Court is hurrying on this, that they have a vested interest in resolving this before Election Day? Well, they set an expedited schedule for hearing motions on or considering the motion to stay. They have expedited...

the briefing with respect to the ballot certification case out of Colorado, which we haven't talked about yet, but they seem to understand that there is an urgency to deciding these matters involving Trump, whether it's whether he can be on the ballot, or in this case, I think they appreciate the urgency of deciding whether or not he's entitled to immunity. Now,

The question is, is it legitimate, essentially, for the prosecution to say to the court and for the court to accept as a rationale that the American people are entitled to know the results of a criminal trial here before the election, to say that essentially out loud? The special counsel has been a little bit cagey about how he phrases the urgency of the case. Just

routinely talking about the public interest in a prompt resolution without tying it specifically to the election. And I think that's because prosecutors are trained to not undertake their job in a way with an explicit eye toward political consequences. And that's generally appropriate.

Do you have a sense of how the Supreme Court might rule here? I think that the opinion that was issued by the District of Columbia Court of Appeals was extremely strong. It was very well written. It was very thorough. It addressed every single argument that Trump raised with respect and thoroughness. It didn't disregard anything, leaving something that maybe the U.S. Supreme Court would want to weigh in on that the D.C. Circuit did not. I think it is very well grounded in all of the relevant precedents.

That said, this is a novel issue. No court has ever expressly addressed a claim of presidential immunity from criminal prosecution. And so for that reason, I just don't know whether the Supreme Court's going to take it. They may take it because they think it's so important that they be the ones to speak to it. And it's possible that they would rule differently. So one of the sort of

pop descriptions of what's being decided in this case is could the president order SEAL Team 6 to assassinate a political enemy with impunity because presidential behavior is immune from prosecution. If the Supreme Court took up this case and said, actually, presidents are immune, would we then be living in a country where, like, indeed, the president could order SEAL Team 6 to assassinate a political enemy? Yeah.

No, I don't think we would be. I think a large part would depend on what the court said about the scope of presidential immunity. I find it impossible to believe that if they took this case and reversed, that they would actually then go on to say that presidents are immune from prosecution in all circumstances. And in fact, one of the things I think that's interesting that's been underreported

supported is an aspect of the briefing and the argument in the D.C. Circuit where the special counsel has essentially articulated a narrow escape where there might be such a thing as presidential immunity in a very narrow class of circumstances involving national security. And essentially saying, they said this to the D.C. Circuit, although the D.C. Circuit didn't take them up on this, and now they're saying it to the Supreme Court in their responsive briefing most recently.

If you're going to take the case, U.S. Supreme Court, and say that you agree with the D.C. Circuit and the trial court that Trump doesn't get immunity from this criminal prosecution, you could write the opinion in such a way that you leave the door open for there to be immunity in some very narrow set of circumstances not presented here. In other words, you could say there may be some narrow class of circumstances, probably

involving national security, where the president should enjoy some form of immunity, but the president should not enjoy immunity when he's trying to overturn the results of a Democratic election. And given that's the allegation here, it's an easy case to find no immunity. OK, so this is one of Trump's arguments, as I mentioned, that he's immune as president of the United States from prosecution.

What other arguments has he been making? So there are obviously some legal arguments he's making that are specific to certain cases, like in the New York case that's been characterized as a hush money case. He's argued that the district attorney doesn't have jurisdiction to prosecute given that the theory of the prosecution in part is that Trump was falsifying business records in order to conceal violations of federal election law. So that's a very specific argument to that case. But more broadly, between the

The January 6th case brought by the special counsel and the Georgia case that also relates to overturning the 2020 election. One of the arguments we're seeing in both of those cases is that Trump essentially was just engaged in First Amendment protected speech activity, that he didn't commit any crime. He was just speaking and responding.

At some point, the courts are going to have to rule on whether or not that is a defense that he can raise here. The special counsel has already addressed that repeatedly in his briefing. I don't think we've yet seen the briefing from Fannie Willis's office on that issue, but I'm sure it's going to come up. And I suspect that the courts will rule that, no, this is not constitutionally protected First Amendment activity. There are lots of crimes that are committed through speech as well as other action. What are some examples here?

Fraud comes to mind, for example. Threats, right? These are things that are classically done by speaking words. And nevertheless, when they have an effect in the world, they're treated by the law as consequences.

conduct. So simply to say that it is a spoken word is not a protection that doesn't cloak you in the First Amendment. And even if it relates to politics in some way, which is why Trump would say it's really at the heart of the First Amendment, which is most concerned with political speech, right? Again, if what you are trying to do is actually persuade people to overturn an election or falsify the election results, the fact that that touches on political matters doesn't insulate it from possible criminal prosecution.

You brought up the case in Fulton County, Georgia, which I spent a lot of my day yesterday watching Fannie Willis's testimony. Me too. I'm sorry for both of us. Which was riveting. I mean, you know,

In some ways, I was like, well, it's my job. I should be watching this. But even if it hadn't been my job, I would have watched it. Like, in no particular order, some of the highlights of the testimony were like, a man is not a plan. I don't even want to go to Australia. I don't think of Tennessee as a vacation. There's all kind of, like, side comments. I believe Fannie Willis said, he's a southern gentleman, but I'm not. That was one of my favorites. So social media has been having a field day, but...

There's a real serious question here, which is Fannie Willis hired Nathan Wade as a special prosecutor to help prosecute the Fulton County case. And the defendants in this particular case, it's not Trump who's actually trying to get her removed. It's a different defendant in the case that's trying to get her removed from the post. And the indictments dropped. Basically, they're saying that she had a personal interest in pursuing the case personally.

as much as possible beyond necessarily what justice would demand because once she hired Nathan Wade as a special prosecutor, she was benefiting from whatever money he was making off of the case and he made over $600,000 in helping to prosecute this case and they point to vacations that they took to Belize and one of the conversations was whether or not Belize is on a different continent. Turns out it's not. But anyway...

This is the case that they are making, and folks could see that she was defending herself emotionally in a way that sort of felt somewhat exasperated with the whole situation, but...

How likely is she to actually be removed from her post in this case and have those indictments dropped? Yeah. So let me just say that as a former prosecutor, I just cringed when I saw the proceedings and how they were unfolding yesterday. I was shocked when I saw Nathan Wade take the stand and even more shocked when Fannie Willis came in and took the stand. This is just not where you want to be as a prosecutor. I don't think there's any precedent for a prosecutor, let alone the chief prosecutor, the elected prosecutor of an office.

So why did they do it?

Why did they take the stand? Yeah. Well, to be honest, I'm not sure, given that the judge, I thought, had previously ruled that he was not going to require them to take the stand unless there was a threshold of evidence put forward by the defense that had made this motion to disqualify, because the defense bears the burden of showing that there is actually this reason to disqualify, that there is a conflict of interest, and has to come forward with some evidence to support

that right before the judge is going to require the prosecutors to take the stand, given how unusual that is and that they don't carry the burden. I don't think that that threshold was met. We had this witness who was called, who was the former friend of Fannie Willis, who testified that she

had observed Fonny Willis and Nathan Wade having a romantic relationship at a time before his appointment as the special prosecutor. She clearly said that she knew Fonny Willis back in, I think it was 2019 through 2021, and that she observed them having this relationship. But as her testimony went on, it really lacked specificity. And she also, as her testimony went on, and she was asked about her own employment history, for example, and her relationship with

Fonny Willis, it became quite clear that they no longer had a good relationship. In fact, it seemed quite sour and that she had at one time worked for Fonny Willis in the DA's office and had left under circumstances that suggested that she was not viewed as performing her job very well. So she's what we would call a biased witness.

So are we saying that there's a chance that Nathan Wade and Fannie Willis took the stand because they personally wanted to? I think that they made a calculation at that point that strategically, for a variety of reasons, probably not just legal in terms of what they had to do in this particular hearing, but maybe more broadly, that they wanted to clear their names. I'm not sure that the judge would have required them to if they had continued to object at that point. Previously, they had objected to taking the stand. Right.

OK. So now that that's all done, what happens now? Does it seem likely that she'll be removed and the indictments dropped? Based on what I saw at the hearing yesterday, no. I did not think that the defense had carried their burden for disqualification because you had the testimony of this one witness who I just described a moment ago, which I did not find very compelling. And then you had the testimony of Nathan Wade and Fannie Willis,

Very detailed denying that they had had a romantic relationship prior to his appointment as the special prosecutor. And then talking specifically about the finances of these trips that they took together, meals they had with both of them saying that Fannie Willis had paid Nathan Wade back for her share.

of any such expenditures. So that really took sort of the power out of the allegation that she was benefiting from his payments as special prosecutor in the form of sort of gifts of travel because she was paying her own way. Nonetheless, this is now part of the political lifeblood of the case. And if this goes to trial, there's going to be a jury that

Basically, they're not going to be able to impanel a jury that one has not heard about the 2020 election and Trump's call to the former Secretary of State Brad Raffensperger and this complaint against the DA. So this now in many ways becomes political. And I should say the Atlanta Journal-Constitution did a poll of likely Georgia voters and

And 59% say they believe politics played a big role in Trump's Georgia indictment. And so I think as much as we say that

and we look at polls that show that voters are less inclined to vote for Trump if he is in fact convicted, there's going to be sort of circumstances around whatever potential indictment there is the voters are also going to weigh. Do they think that it's politically motivated? They'll maybe potentially be able to watch the trial on TV. What do they think of how the proceedings happened? What do they think of the jury that was impaneled?

set aside that the jury itself may have its own views. And it will be very hard to impanel a jury that hasn't touched or hasn't consumed some of this news in some way or have an opinion about it. So there's also basically a political goal here, I would say, which is kick up enough dust to make it seem like everyone is corrupt and then have voters throw up their hands and say, well, you know, everyone's corrupt, but they're just prosecuting Trump for a biased reason or something like that.

It's possible that that's what happens. I mean, there's a couple of things going on here. One is what did the voters say with respect to the November election for president? What do voters say about Fannie Willis when she's up for reelection? And then there's what do the jurors say in this case if it ever actually goes to trial? It is true that it's going to be really hard to find a jury for any of these criminal cases involving Trump. Nevertheless,

courts and panel juries in cases that have been notorious all the time. When I was a prosecutor, I was always amazed about the extent to which things that were so consuming me and those that I knew in politics in the world really were not of all that much interest to a lot of people who came in to serve for jury duty. So you have to spend more time finding people, but you can't

find people who have not consumed the extent of news that you and I may have about these matters, just don't find it that interesting, and who actually can be fair and impartial. I mean, the judge did it in the two civil cases involving E.G. and Carol that just were tried in the Southern District of New York. Again, very controversial cases, lots of notoriety, and the judge managed to impanel jurors twice in those civil cases.

Can we talk about those civil cases in New York for a second? So he was ordered to pay Eugene Carroll over $83 million in a civil case surrounding sexual abuse. We're also waiting to hear a judge's ruling on another civil fraud case in New York that alleges that Trump inflated the value of his assets in an attempt to get better, basically, lease deals from banks, etc., etc.,

In the Eugene Carroll case, that's a lot of money. In the civil fraud case, we're looking at something that can approach $400 million at the end of the day and even a ban on doing business in New York State. No matter what happens, are these cases going to be appealed?

Yes. And I think that Trump has already appealed the first E.G. and Carol verdict. So there were the two civil cases for two sets of statements. The first one that went to trial also involved the allegation of sexual assault. He was found guilty.

liable on that. So the jury found that he did sexually assault E. Jean Carroll under New York law. The second case was solely about the defamation. So he's already appealed to the Second Circuit Court of Appeals the first verdict. He will be appealing the second verdict. The judge just

I think last week, denied his motion for a new trial. So now it's ripe for him to file that appeal. So that would go to the Second Circuit Court of Appeals. And then from there, in theory, he could try to bring it to the U.S. Supreme Court. Then in the New York State case, we expect that

verdict momentarily. He can appeal that to the intermediate appellate court in New York State, the appellate division, first department, and then from there to the New York Court of Appeals, the highest court of New York State. So we're looking at months more of appeals in both sets of cases. This is a hard question to answer, but is this normal? I cited the poll that showed likely Georgia voters viewing some of this prosecution as politically motivated.

So there's these civil cases in New York. There's also the criminal case in New York brought by Alvin Bragg, which addresses the hush money payments to Stormy Daniels. And in all I would say in all of these New York cases, there seems to be more of an air of this is politically motivated. Right. Alvin Bragg, well, like many DAs, is elected and ran on a platform of prosecuting Trump. He's also using a novel legal theory to prosecute this case.

Then, of course, Tish James is the attorney general of New York State, who's also a Democrat, who, you know, has made political statements surrounding Trump and things like that. So to a much larger extent than in particular Jack Smith, there seems to be an air of is this politically motivated? Is this fair? Can we look at other cases and say, no, other folks who have done similar behavior are treated similarly in New York and, you know, ordered to pay similar fines? Or is this truly unique?

Well, it's always hard with Donald Trump because he says, I'm being unfairly persecuted. Nobody has been treated like this. And the reality is that very often there's nobody who's behaved as he has. So it's very hard to do an apples to apples comparison. That said, the statute that the district attorney, the district attorney Bragg, is using to prosecute Trump, the falsification of business records, that is a felony in circumstances where the falsification is to conceal or further another crime, that charge is broad.

all the time by his office and by other DA's offices around New York State. Has it been used in the particular circumstance of concealing a payment to somebody who alleges an affair because you're trying to cover it up for purposes of your election? No, there's no case that we can point to that's exactly on all fours, but that's often the case that we can't point to another case that's exactly on fours. All fours, what we can say is that that criminal charge has been routinely used by prosecutors. Isn't the issue that

They're sort of roping in a federal law into a state law case. And the question is, OK, can you do that? So that's a legal question in the case. The judge presiding over the case rejected the argument that you couldn't do that basically yesterday in his ruling.

that was yesterday. All these days are so long. Yes, it was. It was, in fact, yesterday as the hearing was happening in Georgia simultaneously. So he rejected that argument. It's important to note that that's not the only legal theory that Bragg has advanced. So the statute... He rejected the argument that

The case should be dismissed simply because of that connecting a federal law to a state law, said you can continue to prosecute based on this theory. Yes, he said basically that's permissible in part because the New York statute in question just requires proof that the person falsified their business records with the intent to conceal a crime. And so long as the DA can identify a crime that's on the books, whether it's a New York state crime or a federal crime,

the judge said, that is a permissible basis for bringing this charge in New York State Court. Now, it's notable that

Bragg also identified two other crimes that he says he can prove that Trump was trying to further or conceal by falsifying the records. And one was a New York state election law that makes it a crime to conspire with others to essentially violate election laws generally. And then the second, the third theory is to violate New York tax laws.

because the way the payments were made to Michael Cohen, Trump's former lawyer, concealed essentially the true nature, the true amount of his income for tax purposes. And so evidence of all three of those theories was presented to the grand jury, the judge said, after looking at the grand jury minutes. And I'll let you present all three theories to the jury. Notably, the judge found that there was one theory that Bragg had advanced in his papers that was not presented to the grand jury, which was that the falsification of the Trump Organization records was designed to

conceal falsification of records by AMI, the parent company of the inquirer. And the judge said, well, you didn't present evidence of that to the grand jury. I'm not going to let you proceed on that theory before this jury. So there are these two alternative theories as well.

So this is now going to trial on March 25th. Is there anything that could sort of any sticks that could be thrown in spokes to prevent this? Yes. There always are. I'm sure the district attorney at this point is preparing to go forward on March 25th and defense counsel should be preparing as well, given the judge's firm ruling yesterday. But the

there are always things that can happen from, you know, somebody gets sick to, in this case, the possibility that the DC trial, the January 6th special counsel trial,

gets restarted. If the U.S. Supreme Court were to say today, we're not taking the case, we're not granting a stay, the District of Columbia Court of Appeals decision stands, which means the case goes back to Judge Chutkan in D.C. to restart the proceedings, then Judge Chutkan could call the parties in next week and say, I'm setting a trial date in June, early June. Now, that's after the March 25th trial date. In theory, the trial in New York could happen

March, April, May, and there would be still room to start the D.C. case at the beginning of June. But at that point, the lawyers for Trump might credibly say to Judge Merchant in New York, we now need to prepare for this trial that we know is happening in D.C. in June. And if that were to happen, I could see the district attorney saying,

actually not resisting the effort to postpone the New York trial because at one time he signaled that he was willing to postpone his trial if the District of Columbia case trial was going forward. And so I could see that playing out again. Essentially an acknowledgement that that case is more serious. Yes. And a deference to it being a federal case and I think to the seriousness of it.

This is maybe more a philosophical question about how America does law. But is this weird that we have elected prosecutors, DAs, who can run on a platform of prosecuting somebody? In this case, it's prosecuting a particular person, but oftentimes it's just prosecuting particular types of crimes. You know, we need to prosecute people who are carjacking or, you know, shoplifting or whatever it may be. Or we need to reform the system and not prosecute people who are

in the country illegally or whatever it may be. Like,

Do other countries do it this way? I'm not that familiar with how other countries do it, other than to say that in most other countries, my understanding is that you have people who are trained to be prosecutors, right? And it's more of a civil servant job as opposed to the way it is here, where it's an elected position in the vast majority of places, not the federal system, obviously. And so it's treated differently and people are educated for it differently. The law is also different in many countries and civil law systems.

And judges are trained differently, and they have a different system in terms of juries being composed of judges rather than lay juries if they have a jury. So the whole system is different, and it's important to take that context into account. As to your question about is it crazy, not just that they're elected but that they could run and saying these specific things as part of their platform, I distinguish between saying your priorities are certain areas of crime and saying that you're going to prosecute a particular individual.

I don't think it's appropriate for a prosecutor to say, I am going to prosecute this person when I get into office. I think it creates all kinds of problems as a practical matter as well, because then once you are in office, if you bring that case, I think the defense has a fair argument that you are not being fair and impartial. That argument has certainly been made in this case and probably shaped public opinion. I mean, we've seen poll after poll where folks say that they see this as the least serious and most politically motivated case.

So it's a fair issue. And some of this may be nuanced in terms of exactly what is the person saying. Are they saying something like, I'm not afraid of anybody, including Donald Trump? I think that's different from saying day one in office, I'm going to bring a charge against this person because how could you possibly know the evidence? You're not yet in office.

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So there's one case that we have not yet touched on, and that's, of course, the federal classified documents case. It seems like depending on what happens with the Jack Smith January 6th case, it could be the next likeliest to go to trial. I see here that a date is set for May 20th, although I think there are some questions about that. Where do things stand on that?

So that case has had a lot happening recently, but it hasn't really been out in public view. There's been a lot going on before the court about what documents are going to be turned over to Trump and his defense team that the government doesn't want to turn over and says it doesn't have to under SIPA, which is the statute that governs

cases involving classified information. There's also been motions about what is going to be made available to the public. It's been turned over in discovery to Trump and his team, but subject to a confidentiality order that governs discovery. So that's actually the thing that most recently was subject to briefing because the special counsel's team understandably is concerned about the safety of witnesses.

And some of the discovery that they've turned over to the defense includes prior statements of witnesses and other documents that would reveal the identities of people who have provided information against Trump. And they're very concerned about the safety of those individuals. So we're having lots of back and forth about what's being turned over to the defense, what else the government needs to produce, what's going to be available on the public record. And all of that's happening.

while there's other substantive motions outside of the parameters of what I just described that has to be litigated before this can go to trial. The judge in that case, Judge Cannon, as of now, she is still saying that the May trial date will hold. I think she also issued a ruling this past week saying that she's going to, for now, hold the defense to a late February date, I believe, about filing certain motions.

but that she would consider late filed motions if need be. But it's not clear to me that it's on track to go to trial in May. And of course, if any of these other cases actually go to trial before that, that could be a basis in and of itself to postpone the trial in Florida.

So YouGov did some really interesting polling on all of the cases. And I mentioned that Americans saw the January 6th case brought by Jack Smith as the most serious. In fact, 50 percent of Americans, according to this poll, said it was the most serious case.

23% said the classified documents case is the most serious. 15% said Georgia election. 13% said hush money. So it seems like Americans are ranking this classified documents case second. Maybe that's just because it's a federal case as well. Where do you see it in all of this? I think it's extremely serious. Whether it's second or third, I think depends on

a bit on how one evaluates the seriousness of the Georgia case. I have confidence that the Florida case involving classified information, if

the election doesn't get in the way. And if the judge permits it to proceed, can go to trial. And the evidence seems incredibly strong from everything we've seen. And the substance is serious. I mean, this is the willful retention of national security information, including information pertaining to nuclear secrets and the capabilities, the military capabilities of U.S. allies. So the substance with the documents that Trump is charged with having retrieved

are very significant. And then the obstruction of justice charges on top of that are incredibly serious and include trying to alter a videotape to delete evidence of Trump's associates moving the boxes so that the special counsel wouldn't have access to the evidence of their attempts to move this national security information so it couldn't be found.

When prosecutors brought this case in South Florida, it seemed like part of the rationale was that they didn't want to start the case in D.C. only to have defendants argue to have it moved to Florida and then have that delay everything. But analysts at the time also suggested that it could be harder to find a conviction, to get a conviction in South Florida. So I'm curious how much of that is really an issue, specifically where a case is brought. You know, we have...

New York, we have DC, we have Fulton County, Georgia, and we have South Florida. Does that make a lot of difference? Like in your experience, does the jurisdiction in which a case is tried, like is justice geographical in America? Yeah.

Well, it's a consideration, but it's, I would say, at the bottom of the list. I mean, at the end of the day, you have to bring the case where the evidence suggests it should be brought. You can, under the law, bring a case wherever there's venue, wherever some part of the crime occurred. And there are good arguments for how this case could have been brought in the District of Columbia, maybe even in New Jersey. I've seen some arguments about that. But clearly, the

the vast majority of the evidence and the conduct happened in Florida. And so you can also be vulnerable to looking like you're playing politics if you bring a case in a venue that's not where the weight of the evidence and the conduct happened. And so you could be open, you'd be getting perhaps a slightly better jury pool, but you'd be also opening yourself up as a prosecutor to arguments that you were trying to rig this in a way that you brought it to a jury pool that would be less favorable. So there's pros and cons to whatever choice you make.

I believe in juries. In my experience, juries are fair. You can find jurors who don't have all that much information about the case. You can find jurors who are frankly not that political at all, no matter where you go. I'm always astounded by the number of people who don't vote at all.

I will say this as a journalist who spends time in the field. I have similar experiences where, especially when you get away from the rallies and political events, if you're in a park or at a grocery store or whatever, you will find people all the time who are like, you're asking me who, what? Like, I don't care. I don't plan on voting or I plan on voting, but like, I don't really know. Maybe I'll vote third party. You know, people who are kind of more disgusted by all of this than they are sort of

politically motivated for one side or the other. Yeah, and all you need are 12. You need 12 jurors plus some alternates. So I have confidence that the courts will be able to find a jury who does not have a preformed opinion about the case and that the evidence will be presented in a way that

takes the politics out of it. And in fact, now just switching cases for a moment, one of the recent filings from the special counsel's office in the DC case, the January 6th case, was a motion in limine, a pretrial motion to try to preclude Trump from bringing politics too much into the case and arguing to the jury that this is a political prosecution and trying to make it about politics as opposed to the evidence that

of trying to stop the certification, et cetera. So I think also courts need to do their part in presiding over these trials to try to keep the politics out of it, not just for jury selection, but at the presentation of the evidence. On that topic, one of Trump's arguments broadly has been that all of this is election interference, that basically Democrats, prosecutors are trying to prevent him from getting elected by bringing these cases in the first place.

And the argument is perhaps that these cases should be dropped or at least postponed until after Election Day. Is that argument going to find success in any of these venues? I don't think it's going to find any success in the courts, right, in which people always—

Again, Trump is in a category of one in many ways. We've never been in this situation. But there are defendants who have busy lives and important jobs who are charged regularly and will sometimes say to the court, I really need you to postpone the trial until after X, Y, Z. And courts generally say no.

public has an interest in a speedy trial as well, you don't get to dictate the timing of the trial. And so the mere fact that he's running for office and has this important thing to do in and of itself is not a reason why he can't go to trial. That said, there is a real norm in the Department of Justice that I think the courts appreciate, which is that when that other thing you have to do is running for office, the preference would be not to interfere with that.

But we're in an impossible situation in part because it's, I think, pretty clear to most observers that Trump would order his attorney general to drop the cases. And so they would never go forward. Moreover, there's the standing Department of Justice memo that says you can't prosecute a sitting president. And that seems right. So, I mean, we're really looking at the trials not happening if he is, in fact, elected.

If he's not elected and some of these cases carry on after the election, I expect they will go to trial, in which case I think it sort of puts the lie to the argument that it's just about trying to prevent him from being president. OK, so let's talk about the calendar and the potential consequences. So it looks like the Manhattan case is going to go first, March 25th. Consequences there. What are we looking at?

So the maximum penalties are a couple of years in prison. Most people who don't have a prior criminal record don't wind up serving prison term on these kinds of charges typically. The judge would have a lot of discretion about whether he's going to impose probation or up to, I think it's up to four years imprisonment. And so if we get to that point, that's going to be a really interesting sentencing proceeding. Okay. All right. Do you expect that the jury is going to convict him in that case?

I need to wait and see the evidence. I mean, that's a case where Michael Cohen's an important witness. And we all know Michael Cohen has serious credibility problems. He's already pled guilty to lying under oath. So I don't envy the prosecutors who need to put him on the stand. They're going to have to front all of his credibility problems with the jury and his convictions and all of his lies. And they're going to have to corroborate everything he says that's significant through other documents and the testimony of other witnesses. So I want to wait and see who those other witnesses are.

and how strongly the evidence comes in. Okay, so next on the calendar is sort of floating date, which is January 6th, federal case.

could sort of be approved to go to trial at any time. It sounds like we talked about the consequences there being, you know, a potential maximum of 20 years, but that we probably wouldn't expect it to be that long. Is that also the case where you, that's the one that you say is most serious. Is that also the case where you think it's likeliest that the prosecutors would get a conviction?

I think, again, it depends how the evidence comes in. From what we see charged in the indictment, which seems to reference a lot of information gathered from a lot of witnesses and documentary sources, it looks like they've got a very, very strong case. But an important element—and this is true of all the cases—is the defendant's intent, his state of mind.

I teach criminal law. I always tell my students that is one of the hardest things to prove because we can't get inside somebody's mind. And the burden of proof is beyond a reasonable doubt. And so if you have to show that the person is acting with the intent to obstruct an official proceeding, you know, with the intent to deprive people of their right to vote, then you're really needing you're taking on a big burden. And, of course, Trump famously argues, well, but I thought that I had won the election.

Now, legally, it doesn't matter whether he thought he won the election. If he knew he was engaging in unlawful means, illegal means to try to overturn the election, that would still be illegal under the law. But the question will be, well, how strong is the proof? Because I think it's going to matter to a jury that he actually was told he had lost the election. And how strong is the proof that he knew what he was doing essentially were efforts that were not legitimate to try to get new electors sort of put on the slates and substituted for the legitimately elected electors?

Next, we have a very tentative May 20th for the federal classified documents case. It sounds like you're skeptical that that is going to go to trial in late May. But what are the potential consequences there?

Also very serious penalties. And I'd have to double check. I can't recall if it's 10 years or 20 years. I think it's 10 years for those, at least for the most serious charges there, although it could be 20 years on the obstruction. So we're looking at a lot of time and unlikely that he would get those statutory maxes again. But it is very serious conduct. Again, the willful retention of really important national secrets and then the obstruction of justice on top of that.

likelihood of a conviction? I'm really asking you to play like legal Miss Cleo here. So again, you know, I always hate to say until I see how the case comes in. On the papers, it looks really strong. It looks like they have lots of witnesses who are cooperating, including this person who was identified in the last superseding indictment, who I think was the IT person, the tech person who was asked to delete

some of the footage, that person sounds like a very, very strong witness, at least against NADA. I think there the challenge is going to be connecting everything to Trump. The record looks pretty strong circumstantially in terms of his communications with NADA, sort of putting the timing of those communications together with what NADA then did. But I think the challenge there is going to be, again, connecting it up to

to Trump, especially if NADA and the other defendant, Oliveira, don't flip on him and doesn't look like they're going to. And then lastly, we have Fulton County. Do you think that's the least likely to go before Election Day?

So that one doesn't even have a tentative trial date, which tells you something. Some of those defendants still have pending appeals in the 11th Circuit on their efforts to remove the case to federal court. They're very unlikely to prevail on those, given that the 11th Circuit already rejected one such claim.

But nevertheless, there are a lot of moving parts there, and there are so many defendants still. Even though several have already pled guilty, I think we still have at least 12, if I'm not mistaken, maybe more remaining in the case. So just as a logistical matter, it's going to be hard to find time to try those cases.

that case and whether it's going to be one or split into multiple trials, we don't know. Lots more motion practice to be decided there. There's going to be a motion based on supremacy clause immunity that the judge is going to have to decide. So that one I see on a slower burner. And what's the biggest question there? Sort of the strongest evidence versus the potential pitfalls that prosecution could face?

Well, there's so many charges and so many defendants in that case. So just as a matter of

presenting the case coherently. I have some concern. I'd like to see the case more streamlined. If more people are taken out of the case because they plead guilty, for example, I think that would help sort of focus the presentation of evidence. I think there will be some questions raised as to whether or not the evidence is going to be sufficient, again, on the mens rea, the intent, tying it again to Trump. So there'll be some common issues with respect to that case and the federal case.

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Sign up and download Grammarly for free at grammarly.com slash podcast. That's G-R-A-M-M-A-R-L-Y dot com slash podcast. Grammarly. Easier said, done. So going back to this YouGov poll that I found really handy.

Interestingly, Americans are more likely to say that Trump should be convicted than to say that he will be convicted. So, for example, in the January 6th case, 45 percent say that he should be convicted and just 30 percent think that he will be. Do you have a sense of what's going on there? Well, I think people maybe are being smart in that they're saying we don't know what the evidence is going to be like. And maybe they recognize that 12 jurors can be idiosyncratic. So, yeah.

That doesn't surprise me, given that we don't have all the evidence in the public record yet. We haven't seen how well the witnesses testify and what they're like on cross-examination. So that doesn't surprise me too much. I always tell folks there's wisdom in the crowds. People are like, ah, screw polls, whatever. But if you look at where the majorities fall on a lot of things, there ends up being wisdom out there. But let's run through some hypotheticals. Let's say that Donald Trump is convicted in one or more of these cases. He's in prison.

before election day. He wins the election. What happens? So one of the things that people often ask is, is it really true that there's no legal bar to somebody being president who has been convicted of a felony? And the answer is right. There's no bar to running for office if you've been convicted of a felony, and there's no legal bar to holding office. The question is sort of what happens at that point just as a practical matter. Are we going to say that somebody is going to actually

run the country from a prison cell? And what's the authority for holding the President of the United States in a prison? I mean, that's, again, a question we have never confronted before. I cannot imagine that that's a reality that we will find ourselves in, although it is a theoretical possibility. How the courts would address that, I don't know.

And of course, there's a big difference, I think, as many people have noticed between the federal cases and the local cases, which is that the president has basically can pardon himself or do a lot of things. Or try to. Try to or order somebody to end prosecution, whatever, when it comes to those federal cases. But it's really up to New York and Fulton County when it comes to those other local cases. Okay.

Next hypothetical. Let's say that Donald Trump wins the election with one or more of these cases still ongoing. Then what happens? I think we have some sense that he could try to pardon himself or instruct the AG to cease prosecution in the federal cases. What about Fulton County in New York? I can't see how those cases go forward against a sitting president of the United States.

It would absolutely interfere with his performance of his duties. And so I imagine that the courts would say if this were brought before the courts that those have to be stayed while he is president. It's the same reason why the Office of Legal Counsel wrote in the memo that people

become familiar with in recent years, that you couldn't charge a sitting president, even if there was the evidence to support it, because it would just be too great an interference with his presidential duties. So I imagine that's where we would come out if, in fact, that question were litigated. The last question that I have comes down to a functional piece of running for president while facing all of these cases, which is that

Legal defense is expensive. And so Trump is, can Trump just use campaign money to defend himself in these cases? Are there any bars on that? It's

Yeah, so campaign finance law and what you can and can't use various contributions for to different organizations is really tricky. And I don't pretend to be an expert on it. And my understanding is that there are some funds to some PACs that can be used for legal defense if there is a plausible claim that the case involves election-related activities.

or in some ways is sort of related to your campaign, but that if it's wholly private, you cannot. But I...

I'm not well enough versed in those laws and regulations from the Federal Election Commission to really opine on it. And what's more is my understanding is that the FEC has just really been lax about enforcing whatever regulations there are so that it's a bit of a Wild West feeling in this area of the law right now. OK, actual final question.

It's President's Day. In reality, it's the Friday before President's Day. But for listeners' purposes, it's President's Day. We're tackling questions that no—well, the country has never faced before. No president has ever faced before. Do you think we're now in a new era when it comes to sort of questions about presidential authority and how the law either constricts or doesn't what a president can do?

I think that Trump's presidency and post-presidency and his conduct as he was trying to hold on to the presidency have raised issues that have forced us and the courts to confront.

We've never confronted these questions before. And so it's giving us a whole body of law on issues of immunity and privilege and what Article 3 of the 14th Amendment means. These are questions that just never came up before. And so, yes, I mean, there has been this constant

constant sort of stimulus to the legal system and to the judiciary to address areas of law that never came up before surrounding the presidency or the post-presidency or those running for the presidency. And will there be significance to this area of law going forward in a eventual post-Trump era? I don't know. But certainly you see also, I think, in the briefing and the court's considerations of these various issues as they come up,

a concern that we're in a new era in various ways. And so, for example, in the U.S. Supreme Court argument last week, and again, I think it was last week. You know, so many cases that I didn't even mention this one, which is, of course, Section 3 of the 14th Amendment, whether...

Colorado and Maine can throw Trump off the primary ballot. You heard in the Supreme Court argument some of the justices expressing concern that if they let states decide who engaged in insurrection for purposes of knocking them off the ballot, are we going to be basically allowing and contemplating many such actions in the future against political opponents?

And I think very much thinking about what's happened with impeachment. And again, we just had an impeachment of a cabinet official, right, unprecedented. And so I think there is a concern that are we in an area just where there are these aspects of the law that are novel, but that now may be just sort of more regular features of prosecution, impeachment and political proceedings. Yeah.

Right. It's sort of like in all of these areas where norms once governed behavior, we're now asking the courts to actually erect concrete barriers around what people can and can't do simply because norms.

No one's ever tried to do this stuff before. Right. The norms have been busted. And so there's a sense in, OK, does law step in now? Well, I think that's a very relevant place to leave things and a good question to ponder over the next however many months this lasts. Thank you so much for joining me today. My pleasure. Jessica Roth is a professor of law at Cardozo Law School. My name is Galen Droop. Tony Chow is in the control room. Our producers are Shane McKeon and Cameron Chertavian. And Jayla Everett is our intern.

I'm going to touch by emailing us at podcasts at 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.