“We Have a Verdict”
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The 12 everyday jurors vowed to make a decision based on the evidence and the law, and the evidence and the law alone. Their deliberations led them to a unanimous conclusion beyond a reasonable doubt that the defendant, Donald J. Trump, is guilty of 34 counts of falsifying business records in the first degree to conceal a scheme to corrupt the 2016 election.

And while this defendant may be unlike any other in American history, we arrived at this trial and ultimately today at this verdict in the same manner as every other case that comes to the courtroom doors. By following the facts and the law and doing so without fear or favor.

That was the voice of District Attorney Alvin Bragg in the Manhattan District Attorney's Office here in New York City. Welcome to Prosecuting Donald Trump.

I'm here with Mary McCord. This is Andrew Weissman. Hi, Mary. Good morning, Andrew. So I may sound a little subdued. That's because of a lack of sleep and also, I think, the gravity of what happened. And so in that sense, this will be a special edition of Prosecuting Donald Trump where we're going to talk about what happened yesterday, our big picture thoughts about it, but then

also talk about why you're all here, which is really legally what's next. What will happen in terms of the sentence? What will happen on appeal? What will happen in terms of the gag order that the judge issued? So we're going to try and get into those details. But Mary, what are your thoughts, big picture, before we delve into those intricacies? Well, I'd

I probably won't come as a huge surprise that I see this as a real instance of justice prevailing. I mean, we you in many cases were in the courtroom. I read every page, every word of every transcript of this trial.

I thought it was a case that the district attorney did a very, very fine job with. I thought that they presented the evidence in a very cohesive manner, told a compelling story. I thought that the judge handled it just spectacularly. He was so even-handed. He was so measured. And then we saw jurors who, by all accounts, and you were sometimes in the courtroom, were attentive and engaged constantly, were not

bored or fidgety. Indeed, on the day of closing arguments, stayed till 8 p.m. And then they, you know, deliberated. They asked questions. We thought maybe today we'd be talking about their juror questions and not the verdict because they did have questions that they asked the judge to have parts of the transcript read back to them. And you could kind of

speculate about how they were using those parts of the transcript, what they might be thinking about. A lot of these related to that initial meeting between David Pecker and Michael Cohen and Donald Trump in Trump Tower back in 2015. And then they rendered their verdict.

And they went through a jury poll where each one had to answer, do you agree with the verdict? And they all answered yes. So to me, this is what a well-tried, well-presented case where there's proof beyond a reasonable doubt, according to 12 jurors.

this is the result you get. So I thought it was an incredible instance of justice being done. Now, you might notice I haven't mentioned the gravity of the first president ever of the United States being found guilty. And I say found guilty, not convicted, even though lots of people are using that term because technically there's no conviction until sentencing. But

first American president to be found guilty of felonies. And that is very, very monumental. And that is something that every American, no matter what your politics are, should really think long and hard about. So one of the things I think that's very useful about this podcast and also the fact that both of us are on air is that

As listeners to this podcast know, we have been talking about the fairness of this trial before we knew what the verdict was. And I think because both of us are so steeped in, and I think sort of it's part of our being, at least for myself, actually, I know it's for you too, that

I always said, like, I'm going to speak for myself, but actually, I— We've spent a lot of hours together, yes. Yes, exactly. The reason we were at the Department of Justice is because of the concern about the rule of law, about facts matter, about due process.

is that I wanted to make sure that people understood, regardless of what the verdict was, regardless of what the outcome was, one side or the other was gonna be disappointed, and I wanted people to understand that this was a fair process.

and that you could not set foot into that courtroom and not know that you were in the presence of a great jurist who was completely dispassionate under remarkable circumstances. If there had been an acquittal, I wanted people to understand that this is what it means to be in America. This is what it means to hold...

the state to its burden of proof beyond a reasonable doubt. And if a dispassionate set of jurors who are doing their job determine that, I want people not to feel like justice was somehow not served. And we're now on the flip side of that, where the jury did find that Donald Trump had done that. And we'll get to, of course, he has rights to appeal, and there'll be a sentencing and all of that, and that's part of our system. And so one of the most disheartening

that I thought was emblematic. And this is now, sorry, Mary, it's sort of going to be my big picture. It's hard not to think about sort of what it means for the country.

I thought that Alvin Bragg and Donald Trump yesterday embodied where we are as a country. You had the first black district attorney in Manhattan. He has a long history of being a career prosecutor. Of course, he's now in an elected position who would be described by Donald Trump as the deep state, but in fact, as a committed member of law enforcement to

to do equal justice under law, who had been a federal prosecutor and a state prosecutor, and who gave a press conference that was understated

humble, respectful, where his comment, which I just thought was so emblematic of who he is and what our country should stand for, was he said, I did my job. Should we hear that directly from him, Andrew? Yeah. I did my job. Our job is to follow the facts and the law without fear or favor.

And that's exactly what we did here. And what I feel is gratitude to work alongside phenomenal public servants who do that each and every day. We did our job. Many voices out there. The only voice that matters is the voice of the jury, and the jury has spoken. So that was sort of on one hand, you had him saying, I did my job. And frankly, he did his job. His team did their job. The jurors did their job. The witnesses did their job for

for the prosecution. And the judge did his job. And they all did it without fear or favor. And they took their oath seriously. And they did something that people keep sort of not understanding. They act out of principle. And

which is really lost. They're not transactional players. They act out of principle. And that's something that I think, to my dying breath, I think is part of the best of America. And I think it's something that is completely apolitical. And I would never in a million years think...

oh, that's only something that Democrats have or Republicans have. It's completely apolitical to whether people understand that. And that is why I'm not going to repeat this anecdote, Mary, but that is why you can have a mega Republican on a jury and they can find someone guilty. It has nothing to do with it. People put that aside. And it is so fundamentally disrespectful of

of the rule of law and citizens, average citizens, for people who do not follow the case to suddenly be going down this rabbit hole of authoritarianism to say this is a kangaroo court and we disagree not just with the result but that this is a sham and injustice when what you're really saying is we do not believe in the rule of law and we are not actually going to respect average people

people who have made this decision. I mean, these are 12 citizens. And let's be clear, you can't really just confine those kind of comments to this case because these are attacks on the judiciary as a whole and our entire judicial system. And we've talked about this in the past because these attacks are coming not only from Mr. Trump, but his allies. And with respect to all of the cases, the federal cases brought by the special counsel,

state cases, the one here, of course, in New York and the one in Georgia. There were attacks on the civil cases brought against him by E. Jean Carroll and by the attorney general of New York, Letitia James. And there's been even attacks on the Supreme Court by Mr. Trump, notwithstanding that he got to put three justices on that court. And they've certainly issued some opinions that he finds very favorable. So all of these things coincide.

calling judges corrupt, calling trials rigged. This undermines the entire justice system, not just this one case. And I think that's why you're starting to see judges speaking out and litigators, career litigators on both the prosecution and the defense side sort of speaking out about the need to sustain the faith in the integrity of the system when it's under this kind of attack from people with self-interest.

And the other is, for the people who are going down this authoritarian route, I would ask them, have you spent any time looking at the actual evidence that facts matter? David Pecker was not cross-examined in any meaningful way. He was largely accepted by Donald Trump. This is an ally of Donald Trump to this day, the most damning evidence. Hope Hicks

damning evidence. Jeff McConney, damning evidence. What did those people have in common? They're allies and friends and closely worked with Donald Trump. And did not want to be there. I mean, they did their duty. They were there under subpoena. They testified, you know, they took an oath to testify truthfully, but they all made clear, you know, people recall Hope Hicks breaking down into tears and she was not the only one. You know, they didn't really want to be doing this, but...

They were participating in the system. So it really rejects, these kind of comments really reject all of that. And then obviously Donald Trump as a defendant in a criminal case is not required to do anything and he is not required to testify. But, and this is an important but, in the court of public opinion, when he says, I was denied a fair trial, they never heard my story. No, no, no. You don't get to say that.

Yep. You had a right to testify. You decided not to testify. You wanted the jury to hear what you had to say. Hop on the frigging stand. That's right. And do it on your oath. And of course, as we all talked about, we thought it would be a horrible idea for him to do that because he would probably dig a hole for himself. But he has a right to do that. And he cannot say he did not have the opportunity to tell his story because he absolutely 100 percent did, like you've said. Yeah.

Yeah. So I actually had one other sort of big picture, which is I was thinking about not just the history of America, but just understanding where we are in terms of globally, which, you know, Americans generally don't. You know, we're isolated by these two oceans on either side and.

We just tend to, even in our law, we're not very good about thinking about other countries and looking into their laws as analogies or persuasive authority, just to get into the weeds of what Mary and I do. But it's useful to think about the fact that we are finally joining a group of democracies that have had a history of having not show trials, but legitimate trials, wholeheartedly

holding political leaders to account. And there was an issue about whether we would be able to do it, whether our system would hold. And we have now joined England, France, Italy, Argentina, Brazil, Israel, as countries that have gone through this process. This is a first for us. It's not a first globally. It is absolutely fundamental to the rule of law that just because of your former job

in this case, being the highest position in our government, doesn't mean that you are suddenly immunized from criminality, especially if your crimes are hatched before you even become president, even though you're carrying out the scheme from the Oval Office when you're doing it. Because that is what the jury found, by the way. That the actual 34 counts, by definition, the jury has found that that crime

while it was there to conceal the underlying conspiracy to undermine the 2016 election, the crime itself happened from the Oval Office of the United States. Yeah.

And, you know, that's where every I mean, that's the time period of every check. Twenty seventeen. The first year Mr. Trump was in office. I'm sad, though, to think that you said, you know, we finally joined and it's a club. I would just assume that the U.S. had not joined. But if you're going to have that type of conduct.

by the highest official in the land, it's appropriate in accordance with the rule of law to hold him accountable. Here, here. Yes. So should we take a break and then get into sort of what this means? What are the next steps? What impact, if any, of the Supreme Court case on presidential immunity will have on this? And I say that because we're getting questions. The answer, hint, hint, none. But we'll talk about it.

Spoiler alert. That's right. Also, questions we've gotten is, can he still run for office? Is he disqualified? Right. What would happen if he wins the election? Does the case go away? There's just a fundamental. So, yep. Yep. Let's take a break and we'll come back and get into the weeds. And you can tell me to stop with my grandiose ideas and basically get back to work. Let's get back to work.

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Mary, welcome back. Okay, so question number one is, can he still run for office? We have a lot of people asking that. He's now been convicted, 34 counts. I know not technically convicted until sentencing, but he's been found guilty. So can he run for office? Let's assume it's after sentencing. Is that preclude him from becoming president?

Well, as we've discussed before, it does not. There's nothing in the U.S. Constitution or in federal law that precludes someone who has been found guilty of a felony from running for president. And so this verdict won't impact that. We've had similar questions about what if he's been sentenced to the term of

imprisonment. And we'll get to what the sentencing options are in a minute because we've had a lot of questions about that. But there's nothing, again, that says you could not serve in terms of the Constitution or federal law that says you cannot serve as the president of the United States while also serving a sentence of imprisonment. Now, I think there are all kinds of logistical complications with that.

I just don't think you can actually serve as the president of the United States in any meaningful capacity if you're doing it from a prison cell. Think about the international travel and within this country travel that presidents engage in in order to engage in not only foreign diplomacy, but also international

engage with members of the public here in the United States, think about their role when there are emergencies or natural disasters or any type of thing like that that require them to physically move outside of Washington and certainly outside of a prison cell. So it would be extraordinarily difficult, not to mention the entourage of people that are around him at all times and things like

Handling classified information. You know, the president of the United States every single morning gets a briefing by his intelligence community about threats to national security. Those briefings are not in prison cells. They are in secure, sensitive, compartmented information facilities. Okay, you want me to stop?

Yeah, because I have more questions for you. So, by the way, one thing I was thinking as you were saying this is this is how much he has normalized the crazy. That we're even talking about this. We just had Mary McCord, the most dispassionate

career person I know, one of the smartest people I know, sort of great trial lawyer and appellate lawyer, have to break down why it might be difficult for a president of the United States to do his job or her job, if we're ever that lucky, from a prison cell. Yes, it is kind of, yeah, la la land. Yes, it is. Yes, la la land. Yeah. But that's another question.

So let's just take this hypothetical. I was just found guilty, this hypothetical, of 34 felonies. Am I allowed to get classified briefings and to get the access to the PDB, the Presidential Daily Brief? So now, obviously, the President of the United States is not actually sort of cleared. They don't need clearance. They sort of

Well, they need it. They just kind of... It comes with the office. Yes, right. The rest of us would have our clearances yanked if we were convicted of 34 felonies that had to do with fraudulent activity. And so at present, he doesn't have that access. If he were to be elected, he would have that access. There's actually, because of the transition of power laws, he actually, if it comes to nominee, he will get it early. The idea is that...

You want the people who are running for office, the leading people, to be able to have a running start. A running start. Yeah, exactly. Yeah. Okay. So why don't we go to actual sentencing? Yes, since we've been teasing it. Yes, exactly. So July 11th is the sentencing date. There are various motions that people can make. But July 11th, Judge Mershon will sentence with respect to the 34 counts. They are what's in New York called E-fellowships.

E as in elephant. Class E, right. Right, exactly. So that is a low-level felony, and Donald Trump is considered a first-time offender

And many people who are listening may be going, what do you mean a first-time offender? He's done lots of crimes. They may be thinking, wait a second, he's been charged with all sorts of crimes. But in terms of thinking about, is he a prior felon, they mean, has he been convicted before? And so that hasn't happened. So he's a first-time felon, but there are lots and lots of aggravating facts.

DA Bragg was asked yesterday at this short press conference he gave what the state's position would be with respect to requesting prison time. Just to be clear, the DA can request it. It doesn't mean the judge is going to do it. Mary, you and I know that. Oh, yes. To our core, there are lots of things we request. We're very reasonable and rational judge. Save us from our instincts. Yes. And say, I'm not doing that.

But the DA demurred and said, we will be doing that in our filings and did not answer that question.

But Mary, why don't I ask you, if you were in this state, what kind of factors would you be thinking about in terms of what you might want to bring to the court's attention with respect to fashioning a condign sentence? So before I get into those factors, I want to make sure the listeners understand what the New York law is with regard to sentencing. So for Class E felonies, like you just explained, this is a low-level felony, the maximum sentence

per count is four years of imprisonment. But it is available for a court to give no sentence of imprisonment at all, as you indicated, as Judge Mershon indicated in his special limiting instruction, our curative instruction that we talked about the last episode after Todd Blanch in his closing asked the jury not to send Donald Trump to prison. And that was error. And the court instructed that

you, the jurors, you know, the sentencing is solely for me, not for you. The crimes alleged here are the kind that don't require a prison sentence. So the things that I think are significant beyond factors unique to this case, there's something I would do first, which I'm quite sure DA Bragg has already done and others have done it too, is I would look at sort of all the other cases

that have been brought in recent years in New York charging falsification of business records and see what kinds of sentences have been imposed and what the facts were in those cases where sentences of imprisonment had been imposed. Because what you would not want to be doing here is asking for something that is wildly different from what has been the norm without there being a very good reason to be asking for something wildly different. All of that said, I suspect that

that there are still facts that are very different about this particular set of verdicts, not just because there are 34, because there may be other cases with, you know, dozens of counts because, you know, every business record is its own count. But I doubt there's any others where the bump up to a felony was significant.

that the business records were falsified in order to conceal another crime, that other crime being a violation of New York election law, which is a conspiracy to promote the election of a person by unlawful means. And that has significance. It's beyond some sort of like

pecuniary gain, like financial gain that somebody wants. It's beyond trying to provide some sort of benefit to a person or a favor or something like that. A lot of business records crimes can have that kind of motivation, right? Financial motivations for individuals or groups of individuals. Can I give an example of that? Yeah. Which is so people get it concretely. So you could have somebody who's engaged in embezzlement from a bank or whatever company they're in. And

And they're charged with embezzlement or they're charged with creating false business records to cover up that embezzlement. So the underlying crime that makes it a felony is the embezzlement and it's false business records to cover up the embezzlement.

It's bad. Yes, yes. I spent many, many years prosecuting white collar crime. And the DA made the point yesterday that that's the kind of thing that the DA's office does all the time, right? Bread and butter. Yeah, yeah. But the difference here is this really wasn't about sort of, you know, benefit to one person or one group of people the way embezzlement can be financial benefit. This was about

undermining an entire presidential election. And we'll never know if, you know, squashing the Stormy Daniels story actually made a difference in the 2016 election. There were other things going on there, like James Comey announcing reopening of an investigation into Hillary Clinton just days before the election. Mary, you're triggering me. Yeah, sorry. I'll move on. But the point is, as

As was introduced into evidence in this trial, the Trump campaign and Mr. Trump was certainly worried about the impact of this. And he was worried that that would happen. That's right. It's not fanciful because that's precisely why he did it. Exactly. That was, and obviously, by the way, the jury also determined that.

that the but-for cause of this was the election. That's right. Because that's what they had to find under the jury charge. That's right. The but-for cause was not keeping it because he was concerned about his wife. That's right. So anyway, that's something significant to call to the court's attention in sentencing. Obviously, the judge is well aware of this, but there'll be a sentencing memo

that the district attorney will submit. And I'm sure he will emphasize sort of the importance and significance of the underlying offense here. And then, of course, there is other conduct like

The attacks on witnesses, like the attacks on court staff, like the attacks on potentially on jurors, the things that, you know, resulted in 10 different findings of contempt by Judge Mershon against Donald Trump, even resulted in Judge Mershon sending a warning signal that if you do this again, the fines I'm imposing may not be effective because you're continuing to do things and I may have to consider an actual sentence for

of incarceration for your contempt, not for this verdict that we're talking about now, but for your contempt.

because your conduct is so contemptuous. So, I mean, these things, I think, are also significant in terms of the judge considering what is a sentence that is appropriate for the conduct here. And again, that was separate conduct, but it shows the disrespect for the court system, the disrespect for the judge. And I think the judge will be concerned, and I'm sure he's already heard some of Mr. Trump's comments, the disrespect for the jury and the jury's verdict.

So all of that goes to sort of two things that judges consider all the time in sentencing, which is the risk of recidivism and the lack of remorse. Lack of remorse can actually relate to the risk of recidivism because the idea is that if you are expressing true remorse, not just mouthing the words, the idea is that you show incontrition, you recognize you did something wrong, which our system encourages, and the

The thought is you're less likely to repeat it because you're sort of accepting what you did. And in terms of lack of remorse, I mean, this is like beyond the poster child for it. I mean, there's never going to be a stronger case for lack of remorse. I mean, this is pride. Yes. And also fomenting a lack of remorse. It's not just lack of remorse on his side, but the idea is he is turning... He's rejecting outright the verdict, right? He's calling the whole system rigged. So it's not even...

I don't know. It's not even the opposite of remorse. I don't know what it is. Well, no, it's embracing the bad. Yeah. But my point is not only for himself, but it is proselytizing. And a lot of times what judges consider is, are you doing this alone or are you doing this as a leader of a group? And he both committed the crime as the head of the group and his lack of remorse is also as the head of a group. And I would just add to the sort of recidivism

issue, that this is a judge who sat over the Trump Organization criminal case. A lot of people forget about that case, but that was a case now about two years ago brought by the district attorney's office where the Trump Organization's two of them were criminally convicted beyond a reasonable doubt for like 15-year tax scheme. Allen Weisselberg pled guilty to his role in that. By the way, that tax scheme, little side note,

That tax scheme had an interesting overlap with what we heard here, because when Donald Trump became president,

The accountant said, you know what? You can no longer have these off-book payments to Allen Weisselberg because we're going to be under scrutiny. So you're going to have to pay these sort of fringe benefits on the books. And Allen Weisselberg said, well, if I have to declare them, I need to be grossed up. I need to be grossed up. Sound familiar? And by the way, that was exactly what Michael Cohen said about the gross up, that this was Allen Weisselberg's idea. And I was like, of course it is because...

he's living through it. That's right. He did this exact same thing with respect to his bonus. He's like, wait a second, my bonus is going to be worth a lot less if I have to start declaring it.

That's right. Absolutely. All of that will go into the DA's thinking and then the judge's thinking. Obviously, there are other factors. And the defense, by the way, gets to put in all sorts of evidence about good things he's done. And that he's never been convicted of a crime before. Right. Notwithstanding that his organization has, et cetera, et cetera. Right.

And that he's indicted in three other jurisdictions. But see, that's what, talk about leading with your chin. But judge, I've never been caught before, might be, or held responsible before, might be the better plea. Yeah. So why don't we take a break now, come back to some other outstanding issues that everyone is asking us about and that we're thinking about ourselves.

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Welcome back. Mary, I made a comment about before the sentencing, there's a motion schedule. Do you want to talk a little bit about what kind of motions they are and can it delay things? Right. Do you think it will delay things? And I think we alluded to this maybe last episode very frequently.

after there's been a guilty verdict, the defendant will do two things, one of which he already did, defense counsel yesterday, and one of which I suspect he will do. One is they'll move right there in court. And this happened after the verdicts were returned by the jury yesterday. Mr. Blanche, you know, moved for a judgment of acquittal. Remember, he had moved for judgment of acquittal at the end of the government's case. The court had reserved judgment.

And he basically moved again, basically saying the jury's verdict is not supported by the evidence. And the judge denied that. D-nied. Oh, okay. Two words. Exactly.

Sorry, stole your joke. No, no, it's great. My anecdotes are catching. Yes, they are. They're contagious. But that doesn't mean that Mr. Blanche won't try again. And I would suspect, as often happens after guilty verdicts, but before sentencing, that he will file a motion for a new trial and will put in writing various errors that he thinks took place not only during the trial, but potentially even in pretrial rulings, because all

of these are things that can be part of an appeal. So what he'll try to do is convince Judge Mershon, you made a mistake here, here, here, here, and here, and you should give Mr. Trump a new trial. Now, I think the odds of that motion being granted are slim to none.

Can I just disagree with you? I think we're going to actually have a really big disagreement because I think that overstates the chances. Oh, slim to none. Yeah. I was like, you're not really going to think it has a chance, Andrew. God, I don't know how you drew me into that one. I know. Can you believe it? And I actually think what I was going to say is I think Mr. Blanche knows that they're slim to none or nil or zero, zip, nada. But he's going to do it. Bupkis. Yes. He's

He's going to do it because he's going to want to be able to say he did it on appeal. He's going to do it because Mr. Trump wants him to do it. But he's going to do it first and foremost because it's another delay tactic, I think. And I shouldn't impute bad motives to him, so I don't mean to do that. I apologize. But also, wait, can I just say he's also going to do it because it's a political document, meaning that it will lay out things that can be used in other contexts. As Amy Berman Jackson said about various filings that were made, she said...

you know, I don't know what audience you're addressing your brief to, but it's clearly not me. Yeah, we've heard Judge Chuck can say that during argument in the January 6th case, you know, you seem to be not arguing to me. But you

But you're right. By putting out all the errors that he's alleging, that gets them out there faster than an appeal will because an appeal comes after the sentence. One preview of that is that in the oral application yesterday after the guilty verdict,

Todd Blanche, and this gives you a sense of what he might do, and it also tells you a little bit about this issue of tin ear with respect to are you really arguing to the court versus the court of public opinion, is that Todd Blanche started this rant about Michael Cohen and how essentially we all know in this courtroom that he's a liar. I'm paraphrasing.

And the judge took him to task and said, I'm sure you have misspoken when you say all of us and that all of us know that if you're saying that with respect to me, the court. And then Todd had to recant and say, no, I didn't mean that. But I think that gives you a sense. Now, and just to be fair to Todd, I mean, it can be very emotional. It's a very emotional time in court. Obviously, he had to be very disappointed. Yeah.

It doesn't excuse it, but it is important to consider the context. Yes, absolutely. And that argument is one that he's made before. He sought pretrial to preclude Michael Cohen even from testifying on the grounds essentially that he is a liar and just nonsensical.

Nothing that he says should be trusted. He shouldn't be able to be put on the stand, which is a pretty unbelievable motion to file. And it was denied. But yes. And Mary, that's one of the motions which Susan Necklace, a very experienced defense lawyer for Donald Trump, did not approve.

sign. Right. Yeah. That gives you a sense of your point that it seems pretty unbelievable to make that kind of motion. Anyway, so those are the kinds of motions, you know, that may delay the sensing. I have to say my gut

and I'm not a New York State practitioner, is that in this case, I think the judge is going to be doing everything he can to hold that sentencing date. I think that's right, too. I mean, I think that's partly why he set these motions dates, you know, within the time frame of the date for sentencing. And I don't think Alvin Bragg will ask for extra time. I do think it's possible that

Todd Blanche will ask for an extension of that time at some point, file a motion for an extension, and we'll see how that's handled. But even if there is some delay, it's not going to be a significant delay, I don't think. Which brings us, of course, to appeal. And as I just mentioned a moment ago, appeal can't take place until after there is a sentencing.

And just so everyone's not freaking out on significant delay, that phrase you used. I mean, even if the sentencing gets put off, we're not talking about Judge Cannon timeframe. That's right. The sort of glacial pace. 2026. I think 2026 would be a good time for sentencing. I mean, we're talking about...

you know, days or weeks, but just, you know, a couple that we're not talking about months. That's right. And then after there is sentencing, that's when Mr. Trump can appeal. And there's time frames related to that. So he doesn't have to do it like the next day. He has some time to note his appeal. Then eventually a briefing schedule will be set for the appellate briefs.

And then the big question, Andrew, suppose Mr. Trump is sentenced to a term of incarceration. Will he have to start serving that right away or will it get stayed pending the appeal? Yeah. So in white collar cases, it is very common to not have to surrender, meaning to start serving your sentence if Judge Shepard,

Mershon gives him a sentence of incarceration. He could give a sentence that includes, for instance, home confinement and that he has community service or just probation or a mix and match. He does a short amount of time in prison and then he has a period of what we would call federally supervised release. He's sort of under a term of monitoring by the court. And very often that does not

start until the appeal process is over. In the federal system, what you really look for is, is there sort of a lively factual or legal issue

But very often that is kind of overlooked. Right. An example of somebody who hasn't had to start his sentence until the appeal process was over is Steve Bannon. Steve Bannon. And there's actually that is going to be argued now where his appeal has been denied as to when he has to surrender. But he has been out pending that appeal. But there was an issue on appeal. Yeah. That's one where there actually was some concern about what the circuit court would do. So I don't think we'll be in a situation anymore.

where he's actually been told to serve a sentence. And by the way, that could happen in theory before the election. It could happen, by the way, between the election and if he were to be elected, it could happen between the election and the inauguration. But it also is the case that

If there were to be a term of imprisonment and he were to be elected, it would sort of, I think, likely sort of get postponed until after he is no longer in office. So those are all things that they've never had that situation. And this is why we've never had that situation, because we have never been so anti-rule of law and so in thrall of a

cult figure that we would even have that conversation. If you go back to the Republican Party of Reagan and Goldwater and even Richard Nixon, you would not be having, gee, when the Republican president is sentenced to jail, would he do the time before, during, or after his presidency? Any normal person would say, are you serious? To come back to sort of like

Weird reality here. Even though earlier in this episode, I was talking about how extraordinarily difficult it would be to actually perform the office of the president of the United States from a prison cell. That's exactly why I think that you're right, even if he were to be sentenced to time, if he were elected as president.

there would be a whole 'nother flurry of motions and litigation about whether he could really serve that sentence while being president or whether it would be postponed. So that's a big to be determined depending on what happens.

in November, what happens with sentencing, et cetera. If it's probation only, then that particular issue disappears. This leads me, I think, before we get into questions about the gag order that are also very top of mind for a lot of people. We also had listener questions on whether Mr. Trump has presidential immunity with respect to the charges Jack Smith brought.

for the four different counts related to the efforts to undermine the results of the 2020 election, whether that ruling would have any impact on this case.

I can give an answer because, you know what, lawyers usually have, we have such a bad reputation because we're always like saying, it depends. It depends, but not here. Right, exactly. Because the answer is no, it will not have an effect. Unless the Supreme Court were to turn federalism completely on its head. Which is a distinct possibility. Mary, I think what you mean is unless the Supreme Court were to turn federalism upside down. Yes, yes, that's right. Literally.

A little inside joke. I don't think it's like that inside anymore. It's like a little outside joke. The reason is that not even Donald Trump is arguing in the Supreme Court that purely personal conduct is immunized. And there's no question this is personal conduct. I mean, yes, he did the actual signing of the checks from the Oval Office, but it was not in his presidential capacity in any way, shape or form.

Although he did try, even in this case before Judge Mershon, to have the judge say that, as I recall, because these checks were written while he was in office, that he should be immune. Yeah. And what was the answer to that? The answer was no. My point is he tried. He tried. No, Mary, that was like a softball. Sorry.

Denied. Yes, denied. And even though I do think presidential immunity could affect state prosecutions. Yes. I just think here it's just unimaginable to me that it's going to cover this. If there's anything left to what is a personal crime, it's going to be this. OK, Mary.

Gag order. Yes. Is it in effect, leave aside that he can attack the judge, he can attack Alvin Bragg, but what happens if he still goes after jurors, witnesses? Isn't there still a concern? I mean, even with respect to them, but also future ones. 100%. I mean, he wants to make sure that witnesses in the future aren't thinking, wait a second, okay, and protect it only for the duration of the trial, but then it's fair game. Right.

So what's the story there? Certainly right now, the gag order is in effect, right? This case is still very much a pending and active case in front of Judge Mershon. It has not gone to sentencing yet. There are proceedings that are still in play. There was no expiration date on the gag order. It certainly didn't say that it ends when the day that the trial ends or the day the verdict is rendered.

And so, you know, I believe it is very much in effect. Now, there, I think, would be a question with respect to the gag order about whether, you know, its duration after the case is completely closed. Do you mean like on appeal? Well, yes. After the case is completely resolved, the conviction is affirmed or it's reversed, and the case is completely what we think of as closed. Because even when the case is on appeal, it could come back to the trial judge.

I mean, I think there could be arguments that Todd Blanche might make, Your Honor, once I've been sentenced, is the gag order lifted? We believe it should be lifted. But I think he would want to seek clarification because right now that's unclear. And right now it's unclear at what point it would end. But I feel pretty confident it's in play right now. I want to distinguish that gag order, though, from the protective order that the judge issued earlier this year that prevents

any party, that means Mr. Trump, that means his attorneys, that means the prosecutors, from disclosing the names of jurors. That protective order will continue. In perpetuity, yes. Forever, right. And that's also the order that required that addresses not be disclosed, even to Mr. Trump. So if it were to, you know, appear sometime down the road that jurors' names get out there, I would expect the DNC

the DA's office to seek a hearing to question Mr. Trump and his attorneys under oath about whether they revealed any juror names or juror information, at least if there was some basis to believe that that's where it would have come from. And let's think about it. The prosecution's certainly not going to disclose that. The jurors themselves certainly are not going to out each other. They all just agreed to this verdict. There's no indication there was dissension or anything like that.

I mean, there would only be a small number of people that that kind of a leak could come from, including potentially court staff. So I think that if we were to see the names get out there, we would probably see some sort of investigation and potentially evidentiary hearing into, you know, who may have leaked that. But that we're getting very far ahead of ourselves. That's one that I feel like I can confidently say that protective order will stay in place.

Mary, I wanted to take us back to something just before we end and see if you had the same thought. And I was thinking about it when the jurors were pulled yesterday. And I was taken back to when I was a prosecutor. There's something almost magical about that moment and seems so fundamental to our criminal justice system.

that it is everyday citizens standing there and announcing that that is what they concluded based on the facts they assessed, the law that was given to them by the judge, with the defendant and their counsel looking at them

in the same room and announcing individually that is what they thought. And that is, to me, sort of the essence of the rule of law in this country. When I was in court, to me, it was always sort of a very emotional moment because it brought it back to, I was a prosecutor, I presented the case, but that's where the decision is. And it's not every system in the world that has that core value of the

the people making this decision. And that's why it's both wonderful about our system, and it's what's so upsetting about the reaction to a verdict.

Yes, I agree. I mean, I'll say I don't really like to see that because, you know, as a prosecutor, I would never ask for a jury poll. The defendant almost always will if the verdict's guilty. And it's a pressure point, right? Make the person stand up face to face with the defendant and say they agree, even though by virtue of returning their verdict, they have already asserted, all 12 of them, that they agree. And so...

You know, I understand the reason why courts allow one of the parties to request it. Like I said, I wouldn't ever request it as a prosecutor. I wouldn't request it if there was an acquittal. I wouldn't request it. Yep. Fair. So I do think it puts some undue pressure. That said.

When you then hear them all answer with confidence, yes, yes, yes. I mean, it does really hammer home. These are individuals who swore an oath to do their job, did their jobs according to applying the law to the facts as they were instructed and a true verdict rendered. And to go back to Alvin Bragg, I did my job.

They did their jobs. Mary, I will talk to you next week. And this is probably a good reminder as our sign-off that now that we have a verdict...

Well, I guess one of the downsides is Mary will be doing this now. We'll go back to once a week, not twice a week. Unless big things happen, like we're going to have a Supreme Court case come down soon, and you can better believe if that doesn't happen to happen on the day before a Tuesday, we'll be back on talking about it. So obviously, we'll back to our regular cadence, except when there's news, we'll be back to you with special episodes. And the other is shameless plug time this Sunday.

At 9 p.m., MSNBC has a TV special prosecuting Donald Trump, witness to history. And it's with Rachel Maddow and lots of other people, including me. And the focus is we really are going to only be talking to people who are in the courtroom to try and give people a sense because it wasn't televised, because there wasn't an audio of

what it felt like, what you get from being there that you wouldn't get from the cold hard record. So if you can make time for it, that would be great. And for those people who aren't able to watch it, we will be posting this as part of our feed in the Prosecuting Donald Trump podcast. So

With that, this podcast is produced by Vicki Virgulina. Jamaris Perez is our associate producer, with production support from Max Jacobs. Katherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio.

And Rebecca Cutler is the Senior Vice President for Content Strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts, and please follow the series. ♪

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.