It can feel like a full time endeavor to keep up with all the criminal and civil cases involving former President Trump–from the New York state case involving alleged hush money to the immunity arguments recently argued before the U.S. Supreme Court. On a recent episode of Stanford Law School’s bi-weekly podcast, Stanford Legal, criminal law expert and former federal prosecutor David Sklansky helped break it down. The Stanley Morrison Professor of Law at SLS and co-director of the Stanford Criminal Justice Center analyzed the defense and prosecution strategies and the broader implications, shedding light on the legal challenges facing Trump, the first current or former president in U.S. history to face criminal charges. 

Podcast co-hosts Richard Thompson Ford, the George E. Osborne Professor of Law, and Pam Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law, interviewed Sklansky.

The following is an edited version of the full transcript, which can be found here.

Pam Karlan: Let’s start with the current state prosecution in New York. Can you tell us a little bit about what’s going on in that case? 

What’s interesting and reassuring is that we’re having a fairly normal criminal trial. It looks a lot like a criminal trial of the kind that we see all the time. The charges have to do with the alleged cover-up of hush money payments that Trump orchestrated to Stormy Daniels and two other people to cover up stories of alleged extramarital flings that he had, and to make sure that they wouldn’t come out before the 2016 presidential election.

I think Judge Juan Merchan is running a really tight, good courtroom, and I was surprised how fast the jury was selected. I’ve been struck by how quickly the trial is going, in general, and the orderly manner in which the case is progressing through witnesses. It is not that they are doing anything super rapidly. It’s that there is not a lot of other stuff that’s happening that’s gumming things up and that’s throwing them off, and a lot of that has to be credited to the judge. 

Pam Karlan: Is your sense that the faster a case goes, the better it is for the prosecution? 

Absolutely, because the prosecution has to convince a jury that the defendant is guilty beyond a reasonable doubt, and the more complicated things are, and the longer it takes to explain things, the harder it is to convince 12 people that something is clear beyond a reasonable doubt. I think the fact that the judge is moving this along so rapidly is good news for the prosecution. 

Pam Karlan: He’s doing it four days a week, right? I guess that’s, in part, so that Donald Trump can do the other things that he’s busy doing right now, particularly running for president. And, of course, because he’s running for president, he’s been speaking a lot more than the average defendant does about his case outside the courtroom. What’s been going on there? 

He is subject to a gag order, and the gag order prohibits him from attacking court staff, with the exception of the judge and prosecutors, and the exception of the district attorney. And it prohibits him from attacking the families of those people, and it prohibits him from attacking potential witnesses in a way that could appear to be designed to tamper with the trial. I think a lot of people wondered whether the threat of being held in contempt really could work with Trump. Can you really get him to stop attacking people? So far, the answer seems to be yes. The judge found him in contempt earlier this week and fined him $9,000. Everybody knows it’s a slap on the wrist, but that’s the maximum financial penalty allowed under New York law, and the only other sanction is putting him in jail. The judge threatened to do that if Trump continues to violate the gag orders. I think that so far, it looks like it’s going to be effective.  

Pam Karlan: I’ve been to Rikers Island, and I can tell you, I wouldn’t want to go there either. 

Yes, and obviously the judge doesn’t want to put him in jail either, so there’s a bit of a game of chicken here. Trump is a chaos agent and in a game of chicken, you might normally think he will win because he doesn’t care if the world blows up. But here, I don’t think he’s going to win this game of chicken. As much as the judge doesn’t want to put Trump in jail, Trump even more doesn’t want to go to jail, and so far, since the contempt judgment came down, Trump has attacked the judge, which he’s allowed to do, and he’s complained about the gag order, which he’s allowed to do. But he doesn’t seem to be violating the gag order anymore. You have to take your victories for the rule of law where you find them. 

Pam Karlan: One thing, I think, that has not been said a lot: he was found guilty of criminal contempt here, so he’s already, in a sense, been convicted of nine crimes. 

That’s true. Yes. 

Pam Karlan: The trial strategy is interesting. It seems like the prosecution may be planning to kind of hammock Michael Cohen and Stormy Daniels between a bunch of witnesses who are much more mundane and straightforward. Is that a usual way of doing things? 

When you have a marquee witness, it’s not unusual to put them on early, but it’s also not unusual to try to put them in the middle, particularly if you’re worried that there’s going to be a lot of impeachment. And there’s clearly going to be a lot of impeachment of Michael Cohen, and Michael Cohen’s testimony is important for tying Trump personally to the falsification of the documents. The prosecutors know that’s coming. Their argument has been, and will be, that the jury can believe Michael Cohen because there’s lots of corroboration, so they’re putting a lot of the corroboration evidence on first, and they’ll put it on presumably after he testifies as well. 

Rich Ford: David, what do you think about the overall strength of the case and the importance of the case? We’ve heard from some commentators that this is a weak case. It’s a stretch, and we’ve also heard from some commentators that it’s a trivial case. What’s your assessment? 

I don’t think it’s trivial. It’s certainly not trivial politically. You know, falsification of business documents is something that the district attorney’s office says is taken quite seriously in New York, and they’re right that it’s a charge that’s often prosecuted.

What’s unusual about this case is that the falsification of business records is being prosecuted as a felony, and falsification of business records is only a felony in New York if it’s done to cover up or to further another crime. One difficulty with this case is that it’s never been crystal clear what the underlying crime is that the district attorney’s office is saying Trump’s falsification of business records was designed to cover up, or to further. That’s one potential area of trouble for the prosecutors here. The other potential area of trouble is tying Trump personally to the falsification of their business records, but my guess is that the jury is not going to find that difficult because ultimately, the jury is not going to think that there’s a good chance that all these people were falsifying business records and Trump didn’t know anything about it. Trump doesn’t come across as the kind of person who would be uninvolved while other people were falsifying business records, so my guess is the jury will believe that their business records were falsified and that Trump was in on the falsification. 

I do think that there is a potential problem with the jury being convinced beyond a reasonable doubt that that falsification of business records was done to cover up another crime, and Trump’s lawyer, Todd Blanche, had signaled in opening statements that one of his arguments will be that even if Trump has done everything he’s alleged to have done here, it still wasn’t a crime.

If I had to bet, I would say that the jury ultimately will be convinced that this was done to cover up another crime, but the theory that they have to follow in order to find that is a little convoluted, and I think that even for most lawyers who have been following the trial, it’s been a little difficult to figure out exactly what the DA’s theory is.

Pam Karlan: Donald Trump has hinted at times that he might want to take the stand. I take it that his lawyers are going to do everything possible to keep him off of the stand. 

I don’t think he’ll take the stand. I just think that there comes a point when his bluster gets defeated by his desire not to completely self-immolate, and I think that’s why he’s pulling back on his social media posts. It would be so disastrous for him to take the stand, not just in terms of the outcome of this case, but in terms of the outcome of the election. I think even Trump recognizes that. Trump would like to give a running commentary on the trial with facial expressions and muffled expressions of disbelief, and the judge has kept him on a pretty tight leash in that regard. 

Rich Ford: There are several other criminal trials pending, and in those cases, it seems like Trump’s team has managed to delay those cases. Do you think any of those other cases might get to trial before the election?

It’s possible, particularly for the two federal cases. With regard to the other state case, the one that’s being brought in Georgia, I think the odds of that getting to trial are low, partly because it’s currently tied up in the intermediate court of appeals in Georgia. The trial judge has allowed the defendants, including Trump, to appeal his decision to allow the district attorney to continue prosecuting the case. The defendants had moved to disqualify her based on her romantic relationship with the outside lawyer she had brought in as a special counsel for this prosecution, and the judge refused to disqualify her, although he did say that the outside lawyer had to resign his position as special counsel in case, which he’s done. The trial judge then said that the defendants had leave to ask the intermediate court of appeals to review this.

The intermediate court of appeals hasn’t decided yet whether to review it, and even once that gets resolved, we’re talking about a 19-defendant case. Only four of the defendants have pleaded guilty, but that leaves 15 defendants. It’s a very complicated case, so I think the odds of that one getting to trial before the election are low. 

It was thought that the D.C. case, which is in federal court and has to do with Trump’s efforts to overturn the election in Congress, was most likely to get to trial before the election, but then, the Supreme Court agreed to hear Trump’s challenge to the entire proceedings based on his argument that as former president, he’s immune from criminal prosecution. The Supreme Court heard arguments about that, and it’s not clear when it is going to be releasing the decision. It is also not clear that once they release their decision, whether there will be additional findings that the trial judge will have to make in order to decide whether Trump is immune from that prosecution, because he was a former president. So that could tie it up. 

Pam Karlan: If you had asked me a year ago which case should go to trial first, which case is the simplest, most straightforward, I would have said the documents case in Florida. 

Although even then, I think even a year ago, you would have said, of course, there are the discovery issues because we’re dealing with classified documents, and there’s more than one defendant—though not 19 defendants. There are three defendants. But yes, I agree. I think a year ago, we would have thought: That case is pretty stripped down. It’s pretty straightforward. It’s very hard to see what the defense could be. We were talking about the fact that the New York case has been moving along very efficiently because you have a trial judge who really seems to be skillfully helming the case. The Mar-a-Lago case is not that.

There, we have a trial judge who doesn’t seem very skilled in moving the case along, deciding things expeditiously and keeping things on track. I mean, this is a case where the last trial date that was set for it was, I think, May 20th, which obviously isn’t going to happen, and we don’t have a trial date after that.

Rich Ford: When is it too late for these cases to go to trial? I mean, I suppose a lot of people think that if Trump wins, most of these cases go away, although not all of them.

As a practical matter, it’s going to be very difficult to try Trump while he is president, even in the state cases.That’s true for some legitimate reasons and for some illegitimate reasons. There are decent arguments for saying that the president of the United States should be free to do his job and deserves some protection from criminal proceedings while he’s president. The illegitimate reasons have to do with the fact that if Trump is president, he’s going to be the head of the executive branch. The Department of Justice will report to him and there’s a lot that the Department of Justice, under bad leadership, could do to try to slow or derail the state cases. 

Pam Karlan: And they could derail the federal case completely by just ordering the prosecutor to drop the claim.

Yes, that’s even easier. 

Pam Karlan: Assuming that we get to a verdict in the New York case before the election, and I think that absent a hung jury, there’s 0 percent chance that that case won’t be over, at least in the trial court. It’ll be over, I assume, by June 1st. There’s not much that one could do to derail that case. 

I agree. We’re going to get a verdict in that case. 

Listen to the full podcast

David Sklansky teaches and writes about criminal law, criminal procedure, and evidence.  His scholarship has addressed the law, sociology, and political science of policing; the relationship between criminal justice and democracy; the proper exercise and constraint of prosecutorial power; the interpretation and application of the Fourth Amendment; fairness and accuracy in criminal adjudication; the relationship between criminal justice and immigration laws; the history of the hearsay rule and its connection with American slavery; ideas about violence in criminal law; and the role of race, gender, and sexual orientation in law enforcement.  He is faculty co-director of the Stanford Criminal Justice Center, a faculty affiliate of Stanford’s Center for Comparative Studies in Race and Ethnicity, and a member of the American Law Institute.  In 2017 he received the law school’s John Bingham Hurlbut Award for Excellence in Teaching. Before joining the faculty of Stanford Law School in 2014, Sklansky taught at U.C. Berkeley and UCLA.  He won campus-wide teaching awards at both those institutions. Earlier he practiced labor law in Washington D.C. and served as an Assistant United States Attorney in Los Angeles.