The Litigation Nation Podcast, hosted by Jack Sanker & Danessa Watkins, is a roundup of the most important and interesting legal developments happening right now, giving you an insider’s view to the legal system. If you haven't already, be sure to subscribe to Litigation Nation wherever you listen to podcasts, so you never miss an episode.
Welcome to Litigation Nation. I'm your host, Jack Sanker, along with Danessa Watkins. This is the show we talk about some of the most important and interesting legal stories the past couple of weeks. Danessa, what do we got today?
Danessa Watkins:Well, Jack, as you know, immediately after the May 30, 2024 decision came down, finding Trump guilty of 30 4 charges of falsifying business records, I pretty much immediately texted you and said we need to do a show on this. Yep. It's just it brings up so many interesting legal issues, a lot of unknowns. We're kind of in uncharted territory here. So I thought it would be interesting to scour the for what the legal scholars are saying about this and, have our own little discussion about what we think all this means.
Jack Sanker:Fantastic. Well, let's get into it. All that and more, folks. Here's what you need to know.
Danessa Watkins:Alright. So just recently, we had, 12 jurors in New York, all independent people, depending on who you ask, I guess. They charged Trump as guilty of 34 charges of falsifying business records, which is a felony in New York. And this boils down to a situation in 2006 when Trump and Stormy Daniels, who is a porn star actress, engaged in extramarital sex, which Trump denies to this day. And after that, when Trump was running for the presidency in 2016, his what we call former fixer, Michael Cohen, he testified that Trump approved a $130, 000 hush money payment to miss Daniels.
Danessa Watkins:Cohen handled the payment himself and testified that Trump approved a plan to reimburse him through monthly payments disguised as legal work. So this is the substance of the falsification of business documents, allegations, and the Manhattan District Attorney decided to elevate the case to a felony on grounds that Trump was concealing an illegal campaign contribution. So the jury came back, finding mister Trump guilty on all 34 charges, and this was a historic outcome in our jurisprudence. This is the first former or sitting president to be tried and convicted of a felony crime. Now this actually surprised me because thinking back, we have certainly had some, characters, I guess, holding the presidency, but, and ethics expert, Robert Gordon.
Danessa Watkins:So when asked whether there had been former presidents tried convicted of a felony, he answered a resounding no. We all usually think of Richard Nixon, who was named as an unindicted coconspirator by the grand jury investigating the Watergate crimes, but he was actually pardoned by his successor, Gerald Ford. Thinking way back, we have Aaron Burr, who was Jefferson's vice president that might have been charged for killing Alexander Hamilton in a duel, but was not. He was actually indicted for treason for allegedly conspiring to lead a rebellion against the republic, but was eventually acquitted.
Jack Sanker:Didn't know that.
Danessa Watkins:I don't know. Then another instance that probably comes to mind quickly is Bill Clinton, who faced possible charges of perjury and obstruction of justice for lying about his affair with Monica Lewinsky, but he was never actually charged. He was, however, disbarred in Arkansas. So that is actually probably the highest level of discipline that any of our former presidents have faced up until this point. Now this brings up a lot of unknowns.
Danessa Watkins:I wanna, though, start first with what can we expect next out of this case because I think, certainly, we know that the defense team is going to be appealing. But before we get to that point, there is still a sentencing hearing, which is currently scheduled for July 11, 2024, which happens to be just days before the Republican Party National Convention in Milwaukee. So depending on how the sentencing goes, Trump mayor may not be able to attend that event. But the the crimes that he is charged with, they each carry a max sentence of 4 years in prison, and those would run concurrently. So it's not like he would get 4 years times 34.
Danessa Watkins:They would all run at the same time. But there's also no minimum sentence. So this gives the judge a lot of discretion. He could issue a fine. He could do probation.
Danessa Watkins:Trump could be confined in his home, under supervision, or he could actually be behind bars. So these these 34 charges are all class e felonies in New York, which is the lowest tier. The prosecutors have not yet disclosed what they're going to be asking for during sentencing, but the judge will be able to take a lot of things into consideration. I guess pro Trump is the fact that he is a first time convicted offender, that this was a nonviolent white collar crime. He's 77 years old, and we expect that he will be presenting a number of character letters from friends and family to help guide the judge.
Danessa Watkins:But on the other hand, the judge could certainly consider the fact that Trump had numerous violations of the gag orders during his trial.
Jack Sanker:I think there were 10 contempt orders entered on this case.
Danessa Watkins:I believe so. I think he ends up didn't he get fined for
Jack Sanker:10, 000 he's lost? A lot of money relative to what type of cases is, but there are 10 contempt orders, and that is proper for the judge to consider that when sentencing.
Danessa Watkins:Right. Right. So even if he is, though, sentenced to incarceration, he can ask the, the trial court judge or the appeals court for bail pending appeal so that he can stay out of custody while he challenges his conviction. You know, typically, those type of hearings, they look at whether someone is a flight risk, which I think he's not, despite his money. We know that he's running for the presidency.
Danessa Watkins:So
Jack Sanker:Where would he go?
Danessa Watkins:Yeah. Exactly. Not Europe.
Jack Sanker:Who would I I don't know. Yeah.
Danessa Watkins:Argentina? Come in. Yeah. Maybe. So, you know, we've got another month to see what happens at that sentencing hearing.
Danessa Watkins:And then after that is when Trump's team can move for an appeal. Now the appeal process could take it it certainly will take more than a year. It could be more than 2 years, actually, depending on how far it goes up. He will appeal to the state court, appellate court, but this could eventually go all the way up to the US Supreme Court, just given the issues that are involved here. So we have scoured the Internet looking for everything everything from legal scholars to just, you know, people off the streets, talking about what are the potential issues for appeal here.
Danessa Watkins:1 that came up most often was this issue of the extent of Stormy Daniels' testimony. So during the trial trial at 2 separate occasions, the Trump defense team asked for a mistrial because Daniel's testimony was just going, I guess, really into private issues that maybe
Jack Sanker:She was given a lot of sex details.
Danessa Watkins:Yeah. That that really didn't have any bearing on on the issues, but the judge did allow it. You know, it's definitely the fact that she was talking about him having a extramarital affair, not using protection.
Jack Sanker:So, as I understand, the what happened here and this would require a pretty in-depth review of the trial court transcript, which, you know, we don't have the time to do. But as I understand, the Trump, defense team here made a standing objection to, this type of testimony at the outset, probably in a motion of limine or something like that. The judge reserved ruling, and then Stormy went up there and testified, and they renewed their objection after the fact, at which point the judge said, sorry. It's not a time in the objection. You've waived.
Jack Sanker:So I don't the judge substantively ruled whether it was missable admissible or or not. It was a, timeliness aspect, which, you know, for those of you who are listening that try cases, you all know, absent an agreement, at word order to the other way to the opposite effect, you do have to renew your objection every time. And that's, renew your objection every time. And that's you know, that could be on the lawyers here. I don't know.
Danessa Watkins:Okay. That's interesting. Yeah. I hadn't I hadn't heard about that 1.
Jack Sanker:Because, by the way, if you review the the actual testament that she's talking about, I was like, how on earth did this come in?
Danessa Watkins:Mhmm.
Jack Sanker:Because it's like, you you don't need to talk about this stuff to convict him of a documents charge.
Danessa Watkins:Right. Right. And I think I and I didn't look into this 1 too deeply, but I think there was other other information that came in that really wasn't pertinent, like his his other cases potentially, I think, with Gene Carroll.
Jack Sanker:Yeah. I mean, a reoccurring theme of all of, the Trump legal problems, and I don't know these lawyers, and I don't know and, I I mean, I don't know anything about them, and I'm but I'm basing it on the reputation of some of his other represent of his other representation and other matters is Trump hires the weirdest lawyers in America, that's just been his MO for as long as he's been on the scene. They're usually quite weird and usually have I'm sorry. But they are just, so there's a lot of, like, things that happen during Trump trials that don't happen if just a normal attorney was representing him. Mhmm.
Jack Sanker:I don't know if that's the case here, but that would be, par for the course.
Danessa Watkins:Like a creation of chaos situation? Yeah.
Jack Sanker:I mean, you remember the guy with the mustache and the the he looked like colonel Sanders? Like, it's always some someone like that. Mhmm. I'm sorry. But anyways.
Danessa Watkins:Just a way to throw things and, you know, just maybe distract. It it could be that those are slim pickings when he comes down down to picking his We
Jack Sanker:just he he keeps not paying them, and then his last personal attorney is in jail. So Right. Yes. He is getting, like, the loony tune lawyers. Like, that's all he's getting.
Jack Sanker:Anyways, go ahead.
Danessa Watkins:Alright. Well, we'll see how that plays out at the appeal level. But, alright. Other potential basis for appeal, and this 1 probably has more teeth than others. There's this issue about whether the the prosecutor was, was direct enough about what charges he was bringing and what Trump was actually on trial for.
Jack Sanker:Yes. So this is if if you mind if I jump in on this, because you were talking about the decision, of the prosecutors to charge Trump with felonies. So, typically, as I understand it, the, this business record falsification charge or whatever is usually a misdemeanor.
Danessa Watkins:Correct.
Jack Sanker:But it gets it can be brought as felony charge if the, prosecutors are establishing that, the the falsification of the documents was done in an attempt to commit or conceal a separate underlying crime. And here, as I understand it, Trump was charged with this felony level falsifying business records, charges of 34 counts of it, because he falsified records to conceal a separate violation of New York, election law which prohibits conspiring to promote political candidate, in this case, Trump himself, through unlawful means. So that is the hush money paid to Daniels which was allegedly paid with campaign contributions. So it it kind of stacks here. Yep.
Jack Sanker:It's interesting though that that charge that this is, like that the otherwise misdemeanors are resting on, has not been adjudicated. So it's, you know, it's a the jury had to basically believe that he was guilty of another crime or likely to guilty of another crime, before they could even get to, whether he's guilty of these, like, felony counts and, you know, unanimously, they did.
Danessa Watkins:Right. So, yeah, to break it down a little bit. So the I don't think there's any case law on this issue. So it it may be 1 of the first times where a state prosecutor has invoked an uncharged federal crimes, this election fraud, and there's questions about whether that should've removed the case even from the state court to the federal court level to begin with, whether whether this court even had jurisdiction over the matter. But, yes, it was essentially asking the jury to assume something, but it also, in doing that, didn't give this would be the argument.
Danessa Watkins:Didn't give Trump the due process of timely receiving notice of the crime that he allegedly intended to commit because the prosecutors weren't, you know, so specific about it.
Jack Sanker:That's been the spin afterwards, but, I mean, it's in the pleadings. Like, it's it's, you know, the citation to the New York statute or whatever, like, it's it's it's there. Well, I
Danessa Watkins:think what the you've read that the definition of that statute. I think the part that is vague is the unlawful means. So what were the unlawful means that he was using in order to, you know, further this crime.
Jack Sanker:So here's here's the I actually have the, the falsifying business records in the first degree, felony statute from state of New York here. Section, 175.10 of the, I guess, penal code in New York. Falsifying business records in the first degree, a person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class e felony. So you don't have to be guilty, by the way, per the statute.
Jack Sanker:You don't have to be guilty of another crime. You have to have intent to commit another crime. So that is a different that's a different standard.
Danessa Watkins:Okay. Yeah. That makes sense. The Wall Street Journal, put out an article when was this? June 4th.
Danessa Watkins:So right after after these decisions came down. But they kinda described it interestingly. So, quote, to recap, the prosecution involved 1, a misdemeanor elevated to a felony based on an intent to commit another crime. 2, an indictment and trial that failed to specify or present evidence establishing another crime the defendant intended to commit. And 3, a jury instruction that the other crime was 1 that necessitated further proof of unlawful means.
Danessa Watkins:It's a Russian nesting doll theory of criminality. The charged crime hinged on the intent to commit another unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense. I mean, when you put it that way
Jack Sanker:Sure.
Danessa Watkins:It's But I and, again, we we haven't, you know, read all of the the trial hearing documents. We don't know
Jack Sanker:Right.
Danessa Watkins:You know, what the prosecutors said, how they said it, what was disclosed to the defense team.
Jack Sanker:I fundamentally reject this premise that the defense was caught completely flat footed when it came to closing arguments, and they had no idea at all what was going on. This is a case that is they would have spent 100 of hours preparing for. There would have been multiple pretrial conferences. I just I understand that that's kind of the narrative. And this is setting aside, like, we're not gonna get into, you know, whether this was fair or not or whatever.
Jack Sanker:But I do think that this is, like, as the kids would call it, cope. They're just making, people are making excuses here. I mean, I I don't know. I I just reject the premise outright. Yeah.
Danessa Watkins:I don't know the term cope. They're coping. It's Like a coping mechanism? Copium.
Jack Sanker:Copium. You want kids. I don't know. You're just making stuff up to You know what I'm talking
Danessa Watkins:Okay. Fair. Alright. So that that I think is 1 of the arguments that probably people have analyzed the most from a legal standpoint. Mhmm.
Danessa Watkins:But the let's see. Another 1 that definitely goes to a lot of issues of legality are the instructions to the jury. So I did look up exactly what the instructions were, and the judge said, quote, although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were, unquote. So the argument then on appeal would potentially be that in in criminal court, you need to be convicted unanimously of a crime, and here, the instruction was, you know, that the jury didn't have to come to that unanimous decision. Now this was this comes from a Supreme Court ruling from 1991, Shadd versus Arizona.
Danessa Watkins:This was a murder case where it was found to violate the due process clause for a state to convict someone under a charge of crime, so generic that it could be any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or even just littering, for example. You know, when you have a jury that can find all these different aspects of wrongdoing and then issue a conviction potentially based on different findings, that is considered a violation of due process rights.
Jack Sanker:Yeah. I wonder where this instruction came from. And for those of you listening, in most jurisdictions, there's gonna be what what are called pattern instructions. And the pattern instructions are, for the most part, have been approved and vetted either by some, you know, state affiliated bar administration or by the supreme court and the state itself. And and these are the jury instructions that are gonna that are going to be used 9 9% of the time.
Jack Sanker:They're going to be, safe to use in the sense that you're not gonna catch an appeal from it, and there's you're not really gonna get many objections to it. They'll be tweaked, based on the facts of the case 1 way or the other. So I I don't know where this particular instruction came from if it was if there was a pattern for it or not. But if there was, again, this is 1 of those things where, like, people may be making a bigger deal out of it than it is. III don't know.
Jack Sanker:It's but if there's if this is a pattern instruction and and because there's so much scrutiny on this case, by the way, this judge is gonna be catching an incredible amount of media scrutiny. So is the jury. So are the lawyers and prosecutors and everyone else. If there was a pattern instruction available, I would bet my law license they used it.
Danessa Watkins:Right. But
Jack Sanker:I don't know if there was for such a niche charge. Mhmm. So yeah.
Danessa Watkins:Yeah. Especially when the like you said earlier that this particular, section of the code in New York doesn't usually get used, as to to bring felony charges.
Jack Sanker:Right.
Danessa Watkins:So we'll see what happens with that potential argument. The last 1 I found, and I'm sure there's a ton, but, 1 that could be put forward, and I don't think it's going anywhere, but, that the gag order that restricted Trump's public statements about witnesses violated his rights. I I mean Okay. Yeah. I I wouldn't be surprised if that got thrown in in the end, but, I mean, you know, that that's ridiculous.
Jack Sanker:Yeah. Right. I just yeah.
Danessa Watkins:Okay. So we will probably follow-up more on, you know, whatever happens with this appeal. But the questions that I got texted by family members almost immediately were the more fun ones. Like, can Trump run for president? Can he vote?
Danessa Watkins:What happens if he wins? So I wanted to dig into this a little bit because these are interesting questions, and, like I said at the beginning, kind of uncharted waters. But some of them, we actually do have answers for. So first, can he run? Yes.
Danessa Watkins:He can. The eligibility requirements for presidential candidates are actually few in number. You have to be 35 years old, a natural born US citizen, and have lived in the US for at least 14 years. So there are no rules blocking candidates with criminal records, and this actually wouldn't Debs ran for Debs ran for the Socialist Party ticket back in 1920, and he garnered almost a 1000000 votes. At the time he ran, he was actually serving a prison sentence for speaking out against America's involvement in World War 1, which at the time violated the recently passed Act.
Danessa Watkins:So mister Debs did not win, but he was on the ballot and did receive votes.
Jack Sanker:And a 1, 000, 000 votes in 1920 is a lot.
Danessa Watkins:I think it ended up being, like, 3%.
Jack Sanker:That's a lot. Yeah.
Danessa Watkins:So mhmm. So, yes, Trump can still be on the ballot. But can he vote? Now this was kind of interesting because it's it looks at both where is Trump a resident and where was he convicted. So under Florida law, which is where Trump legally resides, a person with a felony conviction from another state is ineligible to vote only if the conviction would make the purse person ineligible to vote in the state where convicted.
Danessa Watkins:So lucky for Trump, in New York, felons are allowed to vote so long as they are not currently incarcerated. So unless he is behind bars on election day, which by then, then, he will have filed an appeal of an you know, if there is a sentence that puts him behind bars, then then he can vote. So
Jack Sanker:Oh, well, at least he didn't lose that 1 vote.
Danessa Watkins:Yep. I wonder if It may may be the decider.
Jack Sanker:Who do you think he's gonna vote for?
Danessa Watkins:Man. Oh, man. I don't know. I guess it depends on what his sentence is. Alright.
Danessa Watkins:Next 1. If elected, can he pardon himself? So this 1, in this particular case, no. Presidents can issue pardons for individuals who have committed federal offenses, but this is a state law offense. So the only person that could issue a pardon for him would be the governor of New York.
Danessa Watkins:But, you know, given New York is a blue state, I think it would be highly unlikely that, the governor would come to his aid here. Right. But this does raise interesting questions for the the other cases that are pending against him right now.
Jack Sanker:Like the federal, election case.
Danessa Watkins:Yeah. So, he has 1 that is involving mishandling of classified documents. There's a Trump appointed judge in Florida on that case who has indefinitely postponed the trial because he said they need to resolve questions about evidence before setting a date. So that one's not gonna move forward anytime soon. But, yeah, yes, the conspiring to overturn the 2020 election, that is currently delayed for an appeal that was filed by Trump's camp.
Danessa Watkins:So, I don't think we'll see trials in those matters anytime soon, but it does leave that open question. If he was convicted, could he issue his own pardon?
Jack Sanker:It would be weird if he could. Could. But, I mean, ultimate, he could just resign with 1 day left in his term and then have the VP do it. You know? Uh-huh.
Jack Sanker:That's what Nixon did. Yeah. I mean, he didn't resign with 1 day left in his term, but, yeah, he could just do that. So Right. For the federal charges.
Jack Sanker:If he if he wins election, he and his VP can can make the federal charges go away, I think, is
Danessa Watkins:Oh, I hadn't thought of that angle. Yeah. Yeah. It's interesting.
Jack Sanker:So it's so, by the way, the choice of his VP then becomes very interesting.
Danessa Watkins:Yeah.
Jack Sanker:And that'll be I'm sure that'll be something that is, like, talked about in lead up to the election. So he's going to have to pick someone that he can count on to pardon him Mhmm. Which is, interesting criteria.
Danessa Watkins:Right. Which may not necessarily be the best candidate.
Jack Sanker:Well, I mean, do you think Mike Pence would have pardoned him after January 6th? If if so if there was a if there was a felony conviction after that?
Danessa Watkins:I would say no.
Jack Sanker:Exactly. So Trump's gonna be, like he's gonna be looking for a VP here that is locked up to pardon. That'd be very interesting.
Danessa Watkins:Oh my goodness. Yeah. He's yeah. Sends out a brochure, like, check yes or no and blah blah blah. And number 1 question, would you pardon me?
Jack Sanker:Yeah. Yeah.
Danessa Watkins:Oh my goodness. Okay. Well, there's that. He also has that that case pending in Georgia right now, where he's being accused of criminally conspiring to, I guess, what was it, overturn? Or I think he was trying to get the election officials to do a recount or overturn the Biden win.
Jack Sanker:This was the case when he called the, election official in Georgia whose whose name, escapes me right now, and effectively told the guy, I need you to find me
Danessa Watkins:Find me votes. Right?
Jack Sanker:Find me the exact amount of votes I need to win, please. Yeah. Yeah. And does that account or does that amount to, you know, an attempt to fix the election?
Danessa Watkins:Right. Right. So, again, that is a that's under state law, is my understanding. So Right. Even if convicted there, that wouldn't be something that he or his vice president, if he took over the reins or she took over the reins, would be able to pardon him for.
Danessa Watkins:That would come down to Georgia's governor. Alright. So another question, if sentenced to incarceration, what happens if he's elected president? I think from what I've read, most people are in agreement that Trump would likely receive a stay on his custody sentence while in office to prevent interference with his official duties at present Oh my god. Which I guess, you know, are more important than.
Jack Sanker:Can you imagine if he has to wear, like, an ankle bracelet the entire for 4 years
Danessa Watkins:Oh my gosh.
Jack Sanker:And, like, he he's I
Danessa Watkins:mean, I think he wouldn't would he be able to leave the United States?
Jack Sanker:I feel like there would be exceptions made that would like, for the the benefit of keeping the government functioning.
Danessa Watkins:Right.
Jack Sanker:You know? Yeah. You couldn't have, like, a parole officer, like, showing up to the UN, you know, and being, like, what do you hey. You've gotta come back or whatever.
Danessa Watkins:I don't mean to laugh because it I mean, it's ultimately very embarrassing.
Jack Sanker:It's deeply funny. It's The more you think about it, the more funny it becomes, actually. That's that's the attitude I've taken.
Danessa Watkins:I guess you have to. You You have to have a sense of humor about these things, but, I'm just trying to find the intelligent legal conversations we can have about it because, I mean, why not turn this into a, you know, crazy law school essay at the end of the semester?
Jack Sanker:Oh my god. It's gonna be law school hypos
Danessa Watkins:Yeah.
Jack Sanker:For this for sure. The crim pro, finals for the next, next semester are gonna be
Danessa Watkins:Oh, yeah.
Jack Sanker:All about this.
Danessa Watkins:For sure.
Jack Sanker:Criminal procedure. It's a class we all have to take or most of us have to take to get graduate law school.
Danessa Watkins:Yeah. Constitutional law is another 1. Yeah. These these will prove to be good essay questions. So all you law students listening, I would say read up on your local news and scholars and blogs and get your answers ready.
Danessa Watkins:Alright. Now kinda more broadly. So what does this mean generally for our political landscape and, you know, the the issues that now the judiciary is is potentially going to face. So on the 1 hand, you know, this verdict is definitely a powerful demonstration that our country, that the rule of law is upheld equally against all citizens. So no American is above the law.
Danessa Watkins:If, you know, even a former head of state can't escape facing the music, then our judicial institutions are just inequitable and operating as they should. But on the other hand, and we've already started to see this play out in the media, our judiciary is definitely facing 1 of the most ferocious political attacks in its history. We have members of the Republican Party and certainly Trump himself that are directly challenging the fairness of the ruling, calling the progress rigged, and even referring to the judge the devil. So, you know, historically, of course, our system of justice has been accused of multiple fallacies. The 1 that comes to mind most readily is systematic racism, which, you know, at times has been proven true and has led to positive change.
Danessa Watkins:Just a couple examples. We've had jurisdictions that have started to look more closely at, like, routine police stops, practices of local authorities, which has improved training and and focused them on recognizing racial bias and profiling. We've seen changes in our sentencing guidelines. You know, 1 example would be the harsher sentences that were handed down for crack versus cocaine based on, you know, the the typical users of those substances despite the fact that they were pretty much identical. The substances, that is, not the users.
Danessa Watkins:We've seen, probably even to this day, pretrial releases being granted more often for white offenders. Plea bargains being more frequently offered to white offenders. Even use of the death penalty. It still shows, you know, clear evidence of racism, which I think a lot of jurisdictions are trying to address, but, you know, the numbers don't lie. And this isn't just in, southern states.
Danessa Watkins:I found, well, it was 2012, so a little bit dated now, but it was a study of Delaware's practices done by the Cornell University Law School, and it found, quote, black defendants who kill white victims are 7 times as likely to receive the death penalty as our black defendants who kill black victims, end quote. So, you know, it's it's definitely not a new issue having our judicial system under attack as being unfair, but this it just rings a little different. You know? Now we have this white millionaire, billionaire businessman, a former president, charged and convicted, and he's using his platform to call the system unfair, biased, rigged. It it just brings, you know, a different, I don't know, angle on this
Jack Sanker:You know problem. The I mean, ultimately, the the discussion here is, like, was this a, like, quote, unquote political prosecution? And I I think that that question sort of I don't really know if that's a helpful question to even ask because to me, of course, it was. Every prosecution of anyone who's a public figure is in 1 way or another a political decision. And a lot of people don't know prosecutors have the discretion of what charges to bring and whether not to bring charges in the 1st place.
Jack Sanker:And that's just, like, up to the prosecutors. They can just kinda go with what they feel like. There are folks that you would be surprised aren't charged for things all the time. And there are folks who when you when you look at the what the charges have been brought against them, you're like, holy crap. This is seems like overkill.
Jack Sanker:And that's up to the prosecutor. So, so, you know, if you're gonna make that point that this was a politically motivated prosecution, I would say yes and so what? That's every prosecution that you could think of. You know? Like and by the way, the second question is, is that bad?
Jack Sanker:And I and I don't know. You know? III think I'll give you a great example, that comes to mind. In Chicago a couple years ago, probably everyone remembers the, Juicy Smoliette incident. This was the, TV actor who, faked a racist attack, here in Chicago, I honestly, I think for attention, and in the process, kind of slandered the the city and the police officers.
Jack Sanker:And, the city spent a lot of resources and a lot of time, and there was there was all sorts of up uproar about it and everything else, and turned out to to be entirely fake. And the city of Chicago went out and hired a, rather the typical, state's attorneys, they went out and hired a private, attorney, Daniel Webb, who is a legendary trial lawyer here in the Chicago area and made him special prosecutor and probably paid him $1, 000 an hour to absolutely throw the book at Juicy Smoliette and charge him with everything under the sun and destroy him at trial and put him in prison. And I say good. That's that I think that everyone was, like, good. You know?
Jack Sanker:That's was that a political prosecution? Absolutely. Yeah. Was it a was it good that that it was a political prosecution? Also, yes.
Jack Sanker:So that's a, and by the way, we did cover that on episode 13 of the show if anyone wants to go back. So that's a separate I think people are just missing the point there where they're like, well, it was this was political wish. I'm like, okay. Maybe it was. But, like, should it should it not have been?
Jack Sanker:And what's the alternative? Because wouldn't it be, like, a political decision not to prosecute under the circumstances? I mean and and is that good? Are are you when you have someone who is inherently political, who is involved with an alleged crime that is itself political, this is campaign contributions we're talking about, and his personal reputation, which is obviously a part of his political identity, then, the decision can only be 1 way or the other politically. You're gonna politically favor this or you're gonna politically, disfavor it, and you have to choose.
Jack Sanker:There is no like, well, we're just gonna follow the straight and narrow, you know, rule of law because the discretionary part of the charges is built into the system. So, so long as there is discretion at the prosecutorial level, then the decision will always be political. And so III think that discussion is even worth having. You know? You could just say, yes.
Jack Sanker:This was a political prosecution, and I think that was good, or I think it was bad. And and those are different things.
Danessa Watkins:Mhmm. Yeah. No. And you you do it it's good that you explained because I don't know that everyone understands that that how much discretion prosecutors have, how much discretion judges have.
Jack Sanker:Mhmm.
Danessa Watkins:So the idea that a party put this pressure on a prosecutor, put this pressure on a judge, put this pressure on a jury. I mean, it's just no. That's not how it works. You know, Biden didn't cause this to happen. Right.
Jack Sanker:I mean, these are like, let's not mince words here. Like, these are, you know, folks that got elected in in New York. They're probably registered Democrats. Like, who are we kidding? Of course, you know, they probably are.
Jack Sanker:I'm sure the judge probably is too because that's how you get elected in in New York or any place that's majority democrat. Like, that's just geography. You know? That That that that shouldn't be news to anyone who pays attention.
Danessa Watkins:Right. But the, yeah, but the concern would be trying to say that because, you know, they vote vote a certain way that on the bench, they're going to decide things a certain way or in making, you know, decisions on what charges to bring that they're gonna make. I I think to me, that's where the concern comes in that. Now we're starting to paint this picture that our branches are meshing and there is no independence in the judiciary. And we already have, you know, how many stories have we covered just in a short period of time about issues with public opinion about our judicial process, and this is just, I think, causing more alienation.
Jack Sanker:Yeah. To me, again, it's just, like, it's not new that judges or prosecutors are people with political opinions and biases and things like that. That's not news to me. And I think, to anyone who is shocked by that, it's like you haven't been paying attention to everything else. And we talk a lot about on the show about the supreme court, for example.
Jack Sanker:And, you know, on 1 hand, we say all the time that we think that there's quite a bit of political, negotiation happening among the 9 justices, when they come together and, you know, ultimately decide something. So, of course, it's happening at the district court level as well. But, like, that's that is the process, and it has always been the process for, you know, the entirety of the existence of the republic. So, you know yeah. I mean, maybe I'm being overly cynical because this is my job.
Danessa Watkins:This is who you are.
Jack Sanker:And maybe as our producer Kevin pointed out, there's a a perception versus reality gap and what how the judiciary likes to describe itself, of course, is impartial arbiters of, you know, truth and justice. Justice Roberts' example of an umpire calling balls and strikes. But if you, you know, really wanna get sort of of, my viewpoint is that I I just don't buy that. So and I and I never really have. And once you do that, it's quite freeing, actually.
Jack Sanker:So, now you can just approach the world as it is and, you know, don't
Danessa Watkins:you don't have to get upset about it. Okay. So I'm in a different side of this this discussion. I my concerns here are definitely that, we have people who are trying to weaponize the judicial system, and my concern is that the public will think that they have more power to do that than they do. I think we need to give some credit to our prosecutors and give some credit to our judges in the fact they take their job seriously and they uphold their ethical duties.
Danessa Watkins:I mean, like you said, said, this this judge knew all eyes were on him. This prosecutor knew all eyes were on their office. I mean, they even reading these articles about the issues that could come up on appeal, I think you're right. I think they kind of embellished a little bit because there's no way that they made these grave errors knowing that the world was watching.
Jack Sanker:Yeah. I'm not saying there's no appellate issues here. Don't get me wrong. But, like, I doubt that it's, like, a routine obvious thing that, you know, that they're gonna get tripped up on here. It's probably gonna be something quite nuanced.
Danessa Watkins:Oh, for sure. Because, I mean, yeah, this is this is a, you know, unique issue. You need
Jack Sanker:And another thing to to consider here is, like, the, you know, the the judges in New York and the prosecutors in New York and I don't actually know if the judges in New York are,
Jack Sanker:are elected or appointed. And here in Illinois, we have both, but they're, they're often elected. So, like, there's a well, ask yourself which constituents are these prosecutors and judges responsible to? The people of New York City who by and large I'm sorry, New York State rather, who by and large hate Trump. So so they did do what they're supposed to do.
Jack Sanker:Do you know what I mean? Like, if there is if there's room for if there's margin in to make these discretionary calls, it would not be ridiculous for them to sit down and say, boy, what would the people who I have been elected to represent want me to do? And, like, on margin, they would say go after him. You know? Right?
Jack Sanker:Like, am I wrong about that?
Danessa Watkins:I don't think you're wrong about it. I just I'm always hesitant to that's such an easy argument to make, and I'm sure it's gonna be made on appeal. And it's already being made in the public, you know, sphere that he didn't get a fair shake because he was in New York state court. I Which is yeah. They're simplifying the issue.
Jack Sanker:Yeah. I I get it. I I but I I also think it's, like I don't know. It's I think people were are dancing around this issue in a way that just, I think, misses the forest from the trees, which is if he was technically guilty of these things and seems I mean and I don't know. I don't have independent, you know, estimation of whether he was or not, but the jury says he was.
Jack Sanker:And I I do have a lot of faith in the a jury's like, like, the argument seems to be, well, he might have been technically guilty of these things, but the charges should've never been brought because, you know, that's just uncouth or that's that's sort of a, that's AAA bridge too far for our system or whatever. And my point is, don't be technically guilty of felonies, and then go to a venue where most people hate you. Mhmm. And don't do the felonies in that venue.
Danessa Watkins:Mhmm.
Jack Sanker:I don't know. Like, it's not it is simple but yeah. I I don't know. What what do you want me to
Danessa Watkins:So I wasn't gonna let you go into
Jack Sanker:Sorry.
Danessa Watkins:No. No. No. No. I wasn't gonna let you go into the some of the things you read, but now it seems like it's directly on point where you said you read opinion from This was not
Jack Sanker:in the New York Times. They do these amazing, focus groups. It's Frank Luntz who's, like, the legendary republican pollster. I think he's the 1 who did the 1 most recently, the 1st week of, after 1st week of June, I believe, right after the, verdict came out, and it was just a and it's the undecideds. And the undecideds are that they get for these things are incredible because they are undecideds, like, in the sense that they haven't decided whether they're gonna even look up who's running.
Jack Sanker:So they're blank slate. And so the opinions that you get out of those focus groups are amazing. 1 in particular really, jumped out to me is just, like, so far in left field, but so, funny. And and these are the people who who, by the way, this is, like, probably representative of, like, 65% of of registered voters. Right?
Jack Sanker:You know, if you listen to this podcast, you are not in this group, for example. But the, there was an individual who, who said something along the lines of, yes. I think it was politically motivated. Yes. I think it was unfair.
Jack Sanker:Yes. It was a witch hunt. However, he's supposed to be the president and he's how on earth did he get caught paying a $130, 000 to a porn star that, like, is that's demonstrative of his inability to to run this country. You know? You should be able to handle a little bribe to a porn star, if you're gonna be president.
Jack Sanker:Like, it's a it's kind of and, that's kind of been balancing around my head for the past week. I'm just, like, that's actually a pretty astute observation, considering all the things white collar criminals can get away with Right. In this country, especially rich ones, especially probably presidents.
Danessa Watkins:So
Jack Sanker:I don't know. Unforced error? Like, didn't they didn't have to get caught. Mhmm. You know?
Jack Sanker:There's no and I think that this, this, kind of, you know, Joe Everyman on the focus group is published in New York Times really hits the nail on the head. Like, dude, what are you doing?
Danessa Watkins:Yeah.
Jack Sanker:It's so easy to get away with stuff in that position.
Danessa Watkins:Yep.
Jack Sanker:Oh, boy.
Danessa Watkins:Oh, okay. New York New York City civil judges are elected to 10 year terms.
Jack Sanker:Elected. There's some elected, some appointed.
Danessa Watkins:Oh, some are appointed?
Jack Sanker:Okay. Yeah. So they have a democratic, small d democratic, that they're supposed to, in 1 capacity or another, represent. So decide whether or not you think that happened here.
Danessa Watkins:So I before we wrap this up, I do wanna give a shout out to Ava Rosenberg. She is a summer intern here at Amundson Davis. She's a student at the School of Journalism and Mass Communication at University of Wisconsin Madison, and she helped do a lot of our research for this podcast. So we were just taking a quick break and chatting about what we've been talking about, and she brought up an interesting point. Ava?
Ava Rosenberg:Yeah. Obviously, I don't have all the facts on this case, and I've only heard about it recently.
Jack Sanker:Neither are we. So We.
Ava Rosenberg:OJ Simpson passing away, and I wasn't alive during the trial, but, I'm I'm enjoying learning about it and reading it. But I was thinking about when Jack brought up, like, celebrities being brought to trial and the courts and how it's, like, political and you can't change that. And that's how it is, and you have to accept it about if it's political to charge OJ Simpson. And, obviously, it was, like, a different case. Case.
Ava Rosenberg:Like, murder is a very different charge than, a felony, falsifying business records charge. But what I read about the case, people, definitely racialized it and kinda made it a point that he shouldn't get convicted because he is, like, a role model to the black community, and, like, there were very few at the time and in sports. But what does that say about our judiciary system? And even if that, like, that's only 1 of the arguments that was brought to the media, obviously. Like, the jury made their own opinions on the facts of the case, but how that relates to bringing Trump to the stand and, like, what that says about our judiciary.
Danessa Watkins:Right. And you also raised the point about what would you know, what did the people of California want out of the OJ Simpson trial, which I think is an interesting question too.
Jack Sanker:Well, I think I think the OJ Simpson trial can also be understood as, like, the the LAPD trial. You know? And then in in a lot of ways, the LAPD was on trial during that. And, like, it's I'm not I'm not an expert. I'm not an OJ Simpson versus the people of California scholar, but, there was quite a bit of, you know, improper, policing and and overt racism that was uncovered and, discussed at trial in front of the jury.
Jack Sanker:So not that that's exactly what happened here, but, yeah, the venue matters, and, like, the people that are in your jury pool matter, and your reputation matters. And that's that should not shock anyone, is my opinion. I think if people need to, like, consider what the alternative would be here. And with respect to the Trump case, like, he again, we're gonna operate on the assumption that he's technically guilty of what he was charged with because that's what the jury said. And I have no reason to discount that at this point.
Jack Sanker:If if you're technically guilty of it, then your argument boils down to, but I should've no. I should not have been charged because of XYZ. Like, my because I
Danessa Watkins:Usually, constitutional due process rights were violated is is
Jack Sanker:yeah. And if that's the case, I hope that the the commission gets thrown out. You know? If if this was a if if Trump's constitutional rights were violated, then I then I hope that the appellate court or I think it's the superior court of New York I'm not sure how
Danessa Watkins:The yeah. I think that I don't know. They label their courts differently.
Jack Sanker:Yeah. Yeah. Yeah. And then I hope that, you know, that's addressed and and whatever. And I hope that he gets the same amount of justice in that regard as process justice, as anyone inherently and by 200 plus years inherently and by 200 plus years of tradition, by statutory law, like, builds into the system the discretion of the people involved in it.
Jack Sanker:It's not an algorithm. You know? And so if the prosecutors and the judges have, you know, a 20% margin in which they can kind of go with their gut, then you can't be mad that they, like, looked at the vibe and went with their gut here, and they find you, as a defendant repulsive or, you know, or a good person that we should cut some slack to. Like, that's that and that, of course, leads itself to a lot of biases.
Danessa Watkins:Like, you mentioned racial
Jack Sanker:biases, of course. That 20%, percent, you know, discretion or 30% discretion, whatever you wanna call it, is gonna skew hard, towards, over prosecuting minorities. And if someone has, you know, an inherent racial animus. But that again, that's, like, that is the system that everyone has had and including Trump. So I'd I'd that's what bothers me most is this idea that he's being treated any differently than someone who was, you know, brought in off the street with with a routine charge.
Jack Sanker:I I don't see that at all. I think it's in fact, the complaint here is that he wasn't treated differently. Mhmm. And that's, you know, cry harder. Well, I'm actually glad you brought that around because I thought you were going a different way
Danessa Watkins:with that. But yes. No. A 100%. And I agree with you.
Danessa Watkins:If if there were different way with that. But yes. No. A 100%. And I agree with you.
Danessa Watkins:If if there were, you know, if he didn't have his due process rights, if there are findings to that effect at the appellate court level, the supreme court level, whatever it is, then, yes, absolutely. Like, give him the rights that he's owed. But, yeah, at the end of the day, I mean, yeah, this is the system we have. And, you know, thank you 12 jurors for your service because I would be shaking, you know, sitting in their seats trying to make this decision. And the fact that they came down the way that they did, knowing that Trump had already violated all these gag orders and was you know, like, they you know, their safety's at risk.
Danessa Watkins:Their family's safety's at risk, and they still did their job. And so
Jack Sanker:Yeah. I mean, you I think it boils down to if you spend, like, the last roughly 6 or 8 years, like, antagonizing a certain subsection of the population directly, like, coastal liberals, for example, which, you know, we're not coastal liberals, but we're in Chicago. We're, you know, urban, whatever. But if, like, gets your whole personality for the last 10 years is just antagonizing those folks at the, you know, international level as president, it just whatever. Like, don't be surprised when they have the opportunity to get you back within the margins that they do.
Jack Sanker:You know? I just I wouldn't I wouldn't do it that way if I were him. That's just me.
Danessa Watkins:You would commit your crimes in a in a red state?
Jack Sanker:I would I would I would not never commit a crime, but if I did,
Danessa Watkins:I would get I would get away with it. You heard it here, folks. Be a smarter criminal is the Yeah. The wrap up of this show. Now this was super interesting.
Danessa Watkins:You know, there are definitely still some open questions about what's gonna happen. I don't think we'll know for a while. We need to see what the sentences are. We need to see what the appeals look like. We need to see what happens with these other trials that are not gonna go probably before the November 24 election, but, you know, could bring up some interesting legal issues, depending on how those wind up.
Danessa Watkins:So, yeah, again, this is not supposed to be a politically motivated leaning 1 way or another. We are just trying to bring every angle of our analysis to a highly political case, and it's interesting. So Yeah. Alright. Well, that is our show for today.
Danessa Watkins:Remember to like us, follow us, subscribe on Apple, Spotify, YouTube, wherever you get your podcasts. As a reminder, we're coming out with new shows every other week, so look for us on every other Tuesday. Again, shout out to Ava Rosenberg for helping us on this show and giving her insights as well as her, amazing legal research skills. That's all we have for now. We'll see you next time.