Rich Ford: This is Stanford Legal, where we look at the cases, conflicts, and legal stories that affect us all every day. I’m Rich Ford, here with my colleague Pam Karlan, and we’re back after taking some time away, so don’t forget to subscribe or follow us on your favorite podcast app, that way you’ll have access to all of our new episodes as soon as they’re available.

You know, you could be forgiven for wondering if there are any new indictments coming down the pike for President Trump. I mean, as he hits the campaign trail, seeking the Republican presidential nomination, the legal cases against him are mounting. There are currently four cases against Trump, the first current or former president in U.S. history to face criminal charges.

Pam Karlan: One thing, Rich, is it’s interesting, you know, we’ll be talking about the four criminal cases today with our guest, but it’s not as if those are the only cases against him. I think there are also at least two or three civil cases. He’s a litigious man.

Ford: Right, right. And I just heard just recently he lost a summary judgment motion and the judges declared that he did in fact, lie about the value of his properties in New York in one of those civil cases. So, there’s a lot of litigation swirling around this guy.

Well our colleague David Alan Sklansky is here with us today. He’s the Stanley Morrison Professor of Law and the co-director of the Stanford Criminal Justice Center. He’s got a recent book called Pattern of Violence, how the law classifies crimes and what it means for justice. And he’s an expert in criminal law, and a former prosecutor. And he’s going to talk to us today about all of these criminal cases surrounding Donald Trump and what we can expect to see in the future. David, welcome to the show. And maybe you could just give us a quick overview of the four major criminal indictments.

David Alan Sklansky: It’s really amazing to think that a year ago we were talking about whether Trump would ever be indicted. It seemed kind of inconceivable for a former president to be charged. A lot of people thought he would never be charged. And now we have four different indictments by three separate prosecutor’s offices.

So two of the indictments are federal indictments. They’re brought by the office of the special counsel, Jack Smith. And two of the indictments are state indictments, one in New York and one in Georgia. So the two indictments that Jack Smith’s office had brought are a case in Florida, which has to do with Trump’s illegal retention of classified documents and his to mislead the government about whether he had documents that he was supposed to have returned. That’s one indictment. And then there’s a separate indictment in the District of Columbia that focuses on his efforts to overturn the results of the 2020 election.

That’s also the heart of the case in the Georgia prosecution, which was brought by the District Attorney in Fulton County, Georgia, Fani Willis. It too focuses on efforts to overturn the 2020 election. But it is narrowly focused on efforts in Georgia. And the New York indictment, which was actually the first of the four indictments to be brought. It was brought by Alvin Bragg, the district attorney in Manhattan. And it charges Trump with felony fabrication of business records for falsifying his business records to cover up the fact that he was reimbursing Michael Cohen for $130,000 in hush money that had been paid to the adult film star Stormy Daniels.

Karlan: So, there’s a kind of before, during, and after his presidency quality to these indictments. The New York one is about stuff he did before he became president, the D.C. indictment and the Georgia indictment are about things he did while he was president, and the Florida indictment is about things he did after he was president. Am I getting that kind of, right?

Sklansky: Kind of right, yeah. So the documents that he falsified that are the center of the New York case were falsified while he was president, because he reimbursed Michael Cohen after he was elected and after he took office. But the reimbursements were the aftermath, the denouement of a hush money scheme that had mainly taken place before the election obviously, because the whole point was to cover up stories that Trump had an affair. In a way, I mean, everything is head spinning about Trump but it’s a little head spinning to remember there was a time when it was a big deal that somebody was saying that Trump had an affair with her. And Trump thought he had to cover that story up because it would hurt his support, possibly. Different times.

Ford: David what would you say is the most serious of these charges? And then, you know, follow up, which is the strongest case?

Sklansky: So, I think it sort of depends on which metric we’re looking at things. If you want to know what conduct is the most troubling? I would say that it’s the efforts to overturn the results of the election, and that’s the center of the DC indictment and the Georgia indictment. I think the strongest, from a legal perspective, is the Florida case. That’s the case where it’s really hard to think of what kind of defense Trump can raise to the charge.

One thing that’s interesting about all these cases, at least to me, as a former fraud prosecutor, is that these are all fraud cases. And that’s disappointed some people because some people think that they would like to see Trump indicted for inciting a violent insurrection, that seems like the worst thing he did. That should be the subject of a criminal case. It’s not really the focus of any of these indictments. All of these indictments focus on allegations of fraud. That’s the heart of all of them. And any fraud case turns to a great extent on the question of intent. That’s the hardest thing to prove in most fraud cases and that will be a problem, I think, for the prosecutors in all of these cases.

But the Florida case has less of a problem there, I think, than the others, partly because the prosecutors just seem to have better proof showing that Trump knew that he had these documents and that he wasn’t entitled to them. They apparently have a tape of him boasting about this to friends and supporters at one point. And one of his lawyers Evan Corcoran, who continues to represent him in the D.C. election interference case, apparently gave testimony before the grand jury investigating the documents case in Florida, and testify there that Trump essentially had ordered him to mislead the government and try to destroy the documents. So, I, that’s the case where when I think about, like, what do you do at trial for the defense attorney, I scratch my head.

On the other hand, that case is going to be easier to delay than the D.C. election interference case, partly because there are three defendants rather than just two, partly because it’s about classified documents, and there already is a good deal of litigation about how those documents will be handled, how Trump, the access of Trump’s lawyers and Trump’s own access to the classified documents that they need in order to prepare their defense will be handled.

So I think all of that is going to slow that trial down. Whereas the D.C. trial is built for speed, it only has one defendant. It’s very hard to see how Trump can delay the start of that trial, which is currently scheduled for March 4th, just before Super Tuesday. And from Trump’s perspective, And I think from the perspective of the country in some ways, that’s the big deal.

Not is he going to get convicted? Is he going to get sent to prison? But are we going to have a trial? And one thing that I think that is easy to predict is Trump and his lawyers will do absolutely anything they can to avoid that trial. And you know, sometimes people who have been charged with crimes say, I look forward to vindicating myself in court.

Senator Menendez has already said that. And that’s not something you ever hear from Trump because sitting in a courtroom as a criminal defendant is completely inconsistent with his whole game plan, which is about projecting himself as the big man, the man that’s in charge. So, I think he’s, you know, he’s going to try to get the judge kicked off the case. He’s going to try to bog the case down and discover disputes. If he has to go for trial, which I think he will have to do, he’s going to fight not to have to sit in the courtroom?

Karlan: Yeah, I was going to ask you about the federal rule on that because as I understand it is not required to be in the courtroom.

Sklansky: Well, as a matter of constitutional law he’s not required, but the federal rules of criminal procedure actually do say that the defendant has to be present for a criminal trial. Now, we don’t have much case law on what are the exceptions to that because.

It’s not often that a criminal defendant says, I don’t want to be here when my fate is being

Karlan: I mean, it was interesting in the civil trial, the E. Jean Carroll trial about the defamation and sexual assault. He chose not to show up for even a minute of that trial.

Sklansky: Right. And he, the same thing will happen in January when we have the damages part of that case. He’s not going to show up. He has not shown up for any of the criminal proceedings unless, except when he absolutely has to. So, he’s going to fight not to be present during any of these criminal trials because he knows that it’s just, it’s like kryptonite for his whole M. O. which is acting the big man, the man in charge and dominating the conversation. So, I…

Karlan: So that raises for me, David, another question I have for you which is, is this a case where he needs to take the stand or a case where he can’t be put on the stand? Or how do you think about that with somebody, with somebody like Donald Trump?

Sklansky: I think he’s not going to want to take the stand. He’s not, he’s going to want to speak, but not subject to a judge’s control. He does not want to be in a position where he has to answer questions and the judge will not allow him to change the subject or you know, or unravel the proceedings. I mean, that’s what would happen. That is, so he’s not going to want that. What he wants is for the trial to be a sideshow. And he wants to be he wants to talk to give his side of the story on his own terms on a stage in front of an adoring crowd or on social media. And that’s another that is going to be another battleground.

It already is turning into a battleground. What constraints can these judges place on his ability to continue to talk about the case in it, targeting the judges, targeting the prosecutors, threatening witnesses, and that’s we’re going to see a lot of litigation about that. We already are seeing a lot of litigation about it.

Ford: Wow. Well, that raises a question in my mind, David, which is, how much does public opinion matter in all of this? You know, it seems to me if there was any other criminal defendant, there’d be no question that they wouldn’t be able to get away with some of the things that you’re saying Trump is likely to do. But Trump is not any other defendant and he’s likely to be the Republican nominee. How do you see a judge navigating the normal rules of criminal procedure with the unprecedented nature of this particular defendant?

Sklansky: I think it’s really tough. I think we’re not used to dealing with a situation where a defendant feels like what I really care about is getting a lot of people behind me because if I can argue that half the country wants me to be president, then it’s going to be impossible to put me in jail. I’m too big to jail at that point. And that’s his strategy here, right? He’s been very clear about that, and it is, it does put the judges in a difficult position. It puts, in particular, Judge Chutkan in a very hard position. Tanya Chutkan is the federal district judge who’s presiding over the election interference case in Washington, D.C. And she has before her right now a motion, well she has a couple motions in front of her. She has a motion saying that she should recuse herself. And she has a motion that the prosecutors have filed asking for an order restricting Trump’s ability to threaten witnesses and disparage the prosecutors and the judge in ways that can intimidate or make it harder to get a fair and objective jury.

And Trump’s lawyers are saying, and Trump is saying, this is absolutely outrageous. I cannot be muzzled. It is completely inconsistent with democracy. Of course, side note it wasn’t, he didn’t view it as completely inconsistent with democracy to refuse to release his own tax returns. He, when he was running for president in 2016, he made up a rule that he was not allowed to release his tax returns while he was being audited.

He didn’t seem to mind being muzzled in that regard. But now he says, I have heightened First Amendment protections because I’m the leading candidate for a major party nomination for president. And it is hard to imagine what will happen if Judge Chutkan says, okay, well, you’re going to jail if you keep threatening witnesses.

It’s not hard to imagine what will happen if she says that, but if she actually puts him in jail, that will be very difficult to do.

Karlan: Yeah, I think the last time somebody ran for president from jail was Eugene Victor Debs in, what, about 1916, 1920, somewhere.

Sklansky: Right. With, with single digit levels of support. So it’s a different kind of situation.

Karlan: Do you think it’s possible to get an unbiased jury in a case like this?

Sklansky: Yeah, I do. I mean, that’s one part of this that I’m relatively optimistic about. This business about how do you handle a president major party can’t presidential candidate who refuses to stop intimidating witnesses and disparaging the judges in ways that are designed to kind of go them into saying something you could use to get them disqualified.

That’s uncharted territory, and I don’t know how I don’t think we know how well the legal system can deal with that but finding a jury. That can fairly and objectively assess the guilt of somebody who is well known and is charged with criminal violations in a very high publicity case. That’s something that the legal system has dealt with a lot.

You can’t find people who haven’t heard of the defendant, or who don’t have any prior opinions about the defendant. That’s asking too much. But if what you’re, but the legal system doesn’t ask for that. The legal system asks for, to find people who can put aside their preconceptions and reason together.

Karlan: But here’s what, I agree with you on that. What concerns me a little bit is can you get a jury of people who will not be afraid to be jurors in a case like this given the stories about what happened to the election workers. And if you can’t stop Donald Trump from saying things about folks, how do you reassure potential jurors that sitting on this case is not going to ruin the rest of their lives?

Sklansky: Well, it’s hard. I think that it can be done. I think that there’s reason to be concerned that the more threats are made, the harder it gets. So, I think the prosecutors are right to seek an order restricting the kinds of comments and threats that Trump is making. And I think one lever that Judge Chutkan does have, and she’s made this clear, is she can advance the trial, if need be.

Ford: If she feels that the pretrial process is going to make it harder and harder to get a jury. You just need 12, is the answer to how you can get a jury. It may be that most people in the District of Columbia won’t be able to be jurors, but you can find 12 people, I think, who can be fair and objective and who will reason together.

And in some ways, actually, in a lot of ways, the fact that a jury works together as a team is very helpful here. It’s helpful in terms of emboldening them, and it is also helpful in terms of making sure that they approach the case objectively. Because unlike a judge who has to make sure in her own head that she’s not being biased, jurors reason out loud to each other, and they can correct each other. And pull each other back when any of them are veering into ways of thinking that aren’t fair or based on the evidence.

Karlan: We say we’re talking about the Trump indictments, David, but of course there are a bunch of other defendants in these cases. The only case that he’s the only defendant in, I think, is the D.C. January 6th case. So, there are two other defendants in the Florida federal case, and there are, what, 18 other defendants in the Georgia case. And then, there are a couple of members of his family also in the cases in New York. So, what should we make of the fact that there are these other defendants swirling around?

Sklansky: Well, it’s super important. So, in the New York criminal case, Trump is the only defendant, but…

Karlan: There’s the civil cases that all of those other folks are in.

Sklansky: Right. And those are hugely important too, that those are the cases that are brought by the New York attorney general. And in those cases, Trump has codefendants, three of his children and his company. And then in terms of the criminal cases in Florida he’s charged along with two employees, Walt Nauta, who is kind of a gopher. I understand that the term now is body man. So, he was Trump’s body man, which I think means that he hung around and when Trump wants a Coke or something, he goes to get it. And when Trump wants documents moved so that the government can’t find them, or security camera footage deleted, he talks to Walt Nauta about that too. And Carlos de Oliveira, who’s a maintenance worker at Mar-a-Lago and who’s been charged with helping to move some of the documents that Trump was holding on to illegally.

The presence of those defendants complicates that case a little. It’ll slow it, it’s one of the things that’ll slow that case down, but it’s nothing compared to the congestion in the courtroom in Georgia where there are 19 defendants including Trump. And the reason why there are so many defendants in Georgia, by the way, is that this is a racketeering indictment. It’s charged under Georgia’s racketeering law, which, like the federal RICO statute, allows a prosecutor to sweep in all kinds of activity by a lot of different people, if she can charge, that they all have to do with promoting the fortunes of some group or some entity through a bunch of different criminal activities.

And here, the group is this network of people trying to overturn the results of the 2020 election in part by doing stuff in Georgia. So, in the past, this district attorney in Atlanta, Fani Wills, has a lot of experience charging big racketeering cases, she’s done this before. These cases do tend to move slowly, but one of the reasons why they move slowly is Usually, some of the defendants decide at some point that they want to plead guilty and cooperate with the government.

And that’s clearly what Willis is hoping for here. So far, that hasn’t happened. But we already know that all these defendants aren’t going to be tried together, which is what Willis had requested. Two of them, Ken Chesebro and Sidney Powell, two of Trump’s lawyers, have asked to have their trials right away.

They want their trial next month in October, and the judge has said, good, we’ll have your trials next month. So those are going to be the first trial in any of these cases, but it’s only going to be for the two of them. And when the remaining 17 will be tried, and whether those 17 will all be tried together, is not only unresolved, but it’s going to be the subject, I think, of lots of litigation and legal maneuvering in the months to come.

Karlan: Do you think there’s going to be some kind of snowballing there? That is, if they get convicted, do you think that means a lot of the other defendants will then try to plead guilty and cooperate versus if they get acquitted, everybody is going to, everybody’s going to stand pat. I mean, how do you think, how do you think the fact that the prosecution may have to put some of these witnesses on the stand repeatedly at these different trials? How do you think that’s going to affect things?

Sklansky: So, I do think that the results of these trials in October will be very important in terms of what message the remaining codefendants will take about whether they should try to work out a deal or hang tough. And I think Willis’s office knows this they understand that this is a high profile, highly significant trial for them with lots of strategic implications. So, I think that’s what will be foremost on their mind. Now it’s true that when you put a witness on the stand, it can make it harder to call that witness in later cases.

It’s wearing and wearying for witnesses to testify, and every time a witness testifies, you generate some testimony, some written statements that could be used by lawyers on the other side to try to suggest that the witness is lying or mistaken if they change their testimony, and even the slightest degree the next time there’s a trial.

I don’t think that the Georgia prosecutors are going to be holding anything back next month. I think they understand that it’s super important for them to prevail in this first trial in terms of suggesting to other defendants that they might want to get on board. So, I think that they’ll throw everything that they have at it.

Karlan: One other question is, you know, in the Florida case, the two men who were indicted along with Donald Trump both have lawyers who are basically being paid by the Trump campaign by a kind of defense fund that the Trump campaign has put up. And there was another man who was also potentially going to be a defendant and he got a different lawyer and the next thing you know he was a witness for the government. Do you think that’s likely, that kind of thing is likely to happen here as well?

Sklansky: Yeah, I do. I mean, again, this is a set of issues, this problem of codefendants who are paid by the lead defendant. This is something that the legal system has experience with mainly in mob cases. And the way the legal system does, deals with this is by saying that when there’s reason to think that a lawyer can’t fairly represent two defendants, he can be disqualified, or she can be disqualified from representing one of them. I think there are going to be motions of that kind. There are other complications in this case. It’s not just that the lawyers represent other defendants. It’s that the lawyers in some cases are themselves witnesses in other cases.

And that’s going to create complications as well. I’m not sure Evan Corcoran is going to be able to continue to operate as Trump’s lawyer when he appears to be potentially a star witness for the government in the Florida prosecution.

And all of these cases obviously intersect, as you’ve noticed, as you mentioned, Pam not only with each other but also with the civil cases, not just the New York Attorney General civil case against Trump and his business and his children but Jean Carroll’s ongoing civil case for sexual assault and defamation.

There are criminal cases in Michigan against people who are alleged to have acted as fake electors. Much as some of Trump’s codefendants in the Georgia case are alleged to have acted, then there are these ballot eligibility cases in I think five states as of last count. These are lawsuits to kick Trump off the ballot on the grounds that he’s ineligible to run for president under Section 3 of the 14th Amendment because he participated in an attempted insurrection and rebellion against the government of the United States.

Ford: Wow, David. So, there are a lot of legal it’s a tangled legal web that we have here in an unprecedented set of concerns about, you know, that are going to affect the election coming up. Do you have any last predictions about, you know, either which of these are strongest or what you were likely to see next?

Sklansky: I feel like the big question, the $10,000 question here, is are we going to trial in the D.C. election fraud case in March, and is Trump going to be forced to sit in the courtroom? And I think the answer to both of those questions is yes, and I think that trial is going to go forward, I think it’s going to go forward in front of Judge Chutkan, and I think that is huge.

That, having that trial, wholly aside from what the outcome is and what, whether Trump is convicted and if he sends to prison, having a proceeding where there’s a judicial determination pursuant to the rules of evidence about whether Trump committed a crime in his efforts to overthrow the results of the 2020 election is a hugely important thing. It’s a hugely fraught thing and a difficult thing for the legal system to try, but I think it’s going to be interesting to watch how the system handles it.

Ford: Well, thank you so much, David. This has been a fascinating discussion, and there’s so much to talk about that’s of such profound importance for our democracy.

This is Stanford Legal, and if you’re enjoying the show, tell a friend and please leave us a rating or a review on your favorite podcast app. It will help us to improve the show and get the word out for the next time that we’re back. I’m Rich Ford, here with Pam Karlan. See you next time.