David Sklansky: Trump is a chaos agent, so the normal, you think that in any game of chicken, he’ll win because he doesn’t care if the world blows up, but here, I don’t think he’s going to win. I think that 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, he, you know, since the contempt order, 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, and that’s, you know, you have to take your victories for the rule of law where you find them. 

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day.

I’m Pam Karlan with Rich Ford. Don’t forget to subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all of our new episodes as soon as they’re available. 

Today, we’re here with our colleague, David Sklansky, who is the Stanley Morrison Professor of Law and co-director of the Stanford Criminal Justice Center.

He’s a former federal prosecutor and an expert on all things law criminal, so thanks so much for being with us here today, David. 

David Sklansky: Thanks for having me back. 

Pam Karlan: Yeah, and speaking of all things criminal, it seems right now that the trials of Donald Trump have actually begun. 

David Sklansky: One of them has. 

Pam Karlan: Well, one of them has, but, of course, they have to be in sequence because a defendant has to actually be at his trial, absent some very unusual circumstances.

So I thought what we might do is start with the case that’s actually begun. It’s a case in New York. It’s a state prosecution. Can you tell us a little bit about what’s going on in that case? 

David Sklansky: Well, I think for a lot of us, what’s really 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 election.

Pam Karlan: One of the things that really interested me about the trial is, and I clerked in the Southern District of New York, so I’ve seen the sort of jury pool you get there, is just how fast the jury was selected here. I mean, you’ve had a couple of big trials. Did you get your jury selected as fast as Judge Merchan got the jury selected here?

David Sklansky: No, generally not in a case that’s…where there’s a lot of pretrial publicity. I think Judge 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. How, in what an orderly manner the case is progressing through witnesses.

The thing that’s made it so fast is not that they’re 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: Yeah, I remember this is now many, many years ago, you were still a prosecutor at the time, we were talking about, I think it was right after the acquittal had come in in the OJ case and you said you figured there was going to be an acquittal as soon as the trial got past a couple of weeks.

I mean, is your sense that the faster a case goes, the better it is for the prosecution? 

David Sklansky: Absolutely, because the prosecution has to convince a jury that the defendant is guilty beyond a reasonable doubt, and the more complicated things are, 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: Yeah, he’s doing it four days a week, right? It’s like Wednesday’s off. 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? 

David Sklansky: Well, 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, with the exception of the district attorney, and it prohibits him from attacking the families of those people, and it attacks… prohibits him from attacking potential witnesses in a way that could be that it appears designed to tamper with the trial. I think a lot of people wondered whether a contempt… whether the threat of being held in contempt really could work with Trump.

Can you really get him to stop attacking people? And so far, the answer seems to be yes. The judge found him in contempt earlier this week and fined him $9,000, which is obviously a slap on the wrist. 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, and the judge threatened to do that if Trump continues to violate the gag orders, and I think that that threat… so far it looks like that’s going to be effective. A lot of people thought, well, what does Trump care? If they throw him in jail, that’s more publicity for him. He really doesn’t want to go to jail, I think.

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

David Sklansky: Yeah, and obviously, the judge doesn’t want to put him in jail either, so there’s a bit of a game of chicken here, and Trump is a chaos agent, so then normally, you think that in any game of chicken, he’ll win because he doesn’t care if the world blows up, but here, I don’t think he’s going to win. I think that 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, he, you know, since the contempt order, 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, and that’s, you know, you have to take your victories for the rule of law where you find them. 

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

David Sklansky: That’s true. Yes. 

Pam Karlan: And I think nobody’s really talked about that, which I think is kind of interesting. That this is not civil contempt, which is when you’re trying to force somebody to do something, so you say to them: unless and until you do this, it’s going to cost you, you know, $3000 a day until you turn this document over, or we’re going to put you in jail until you agree to testify, or something like that. Let me ask you a question about the trial strategy, which is interesting, which is, it seems like, you know, 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? 

David Sklansky: Yeah, well, I think when you have a witness who’s 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 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 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? 

David Sklansky: 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, and one difficulty with this case is 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, and I do think that that’s one potential area of trouble for the prosecutors here. I’d say that the other potential area of trouble is tying Trump personally to the falsification of their business records, but my guess is that, ultimately, the jury is not going to find that difficult because ultimately, the jury is, I think, 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.

People are just doing this to help him out, without… he doesn’t come across or present himself 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 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, which he didn’t, it wasn’t a crime.

My guess is, if I had to bet, I would bet 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.

I think I understand it now, and remember, following the trial at a distance, like we are, is different from being in the courtroom every day, which is what the jury does, so it could be that it really will be much more clear to the jury than some people, including me, are worried it might be, but I think if there’s an area of danger for the prosecution, that’s it, I think. That the danger that the jury won’t understand and won’t be able to… won’t be convinced beyond a reasonable doubt that the falsification of business records was done to cover up another crime.

As opposed to just. Go ahead, Pam.

Pam Karlan: And I assume that the judge is going to have to instruct the jury on what crime it is at the end of the trial.

David Sklansky: Well, I don’t know if the… the DA’s office has said we don’t have to pick. We don’t have to specify. So it’s possible that they will ask for instructions that tell the jury if they find any of the following offenses.

Pam Karlan: Oh, right, but they’re going to have to be instructed on what would be the crimes that are covered up. 

David Sklansky: What the possibilities are.

Pam Karlan: Yeah. 

David Sklansky: That’s right. And the principle theory that the prosecutors are relying on, I think, is a little convoluted. It’s not as straightforward as if I was a prosecutor, I would want it to be. The theory is that the other crime that Trump was trying to further or cover up with the falsification of business records is the misdemeanor offense of conspiring to elect somebody illegally, so the difficulty here is that you’ve gone from one crime, falsification of business records, for which you need another predicate offense. The predicate offense there is election fraud, but that crime also needs a predicate offense, and I think the predicate offense, the predicate offenses that they have in mind for that are New York tax fraud or federal campaign finance violations, but I think anytime that you have a… your theory of prosecution is, this was a crime because of a predicate offense and the predicate offense was committed because of yet a third predicate offense. That’s a little more complicated than, ideally, you would want a theory to be if you’re trying to get 12 laypeople to agree beyond a reasonable doubt that it’s correct.

Pam Karlan: Yeah, I mean, the through line of it is pretty clear, which is he wants to have these stories buried because he thinks that it will affect the election. It was a very close election. This was right after the tapes came out about him, so it’s interesting that the legal theory is much more convoluted than the kind of straightforward explanation of what was going on.

David Sklansky: Yes, and the fact that the straightforward explanation of what’s going on is simpler, that does help the prosecution. 

Pam Karlan: Yeah, so I remember in his opening, Todd Blanche talked about, you know, he’s a family man, just like you and me and everything. And I wonder, you know, he… 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 humanly possible to keep him off of the stand. 

David Sklansky: Yeah. 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 not violating… 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. 

Pam Karlan: Yeah, I mean, I’m thinking back to the second E. Jean Carroll case where he took the stand for about 17 seconds, and that was it.

And I think maybe this has been some of what Judge Merchan has been doing so effectively by running the trial as he’s made it clear he’s not going to let, you know, Donald Trump get on the stand and talk about whatever he wants. 

David Sklansky: And he’s not letting him testify from council table, which is what Trump would like to do.

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. 

Pam Karlan: Yeah, I mean, but so far, it’s been like with various lawyers and the wonderfully named David Pecker. I just wonder what he’s going to do when Stormy Daniels gets on the stand or when Michael Cohen is on the stand.

David Sklansky: That’ll be interesting. I mean, he’s… self control is not one of his great skills, so I think he may lose it then, but I’m not sure. I mean, the judge has done a very good job in keeping, in making it clear to Trump that he can’t do monkey faces from council table and grunt and grimace and laugh and think that that’s going to be okay.

Rich Ford: David, we’ve talked about the New York case, but there’s 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?

David Sklansky: It’s possible, particularly for the two federal cases.

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 take in… to ask the Intermediate Court of Appeals to review this.

They’ve asked the Intermediate Court of Appeals to review it. The Intermediate Court of Appeals hasn’t decided yet whether to review it, and that’s, 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 just a very complicated case, so I think the odds of that getting to trial before the election are low. The D.C. case, which is in federal court and has to do with Trump’s efforts to overturn the election in Congress, I think, was… looked like the case that would… was most likely to get to trial before the election, but then, the Supreme Court agreed to review Trump’s… 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 argument about that, and it’s not clear when they’re going to be releasing the decision, and it’s not clear 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 that up. 

Pam Karlan: Well, and even once the Supreme Court rules in that case, the judge had kind of stopped the clock on the discovery and the like, I think, 88 days out from when she had originally scheduled the trial for, and so the question is, is it going to take another 88 days after the Supreme Court rules before the case is ready for trial? That takes you to, depending on when the Court rules, late summer, early fall, and then there’s this serious question in the very midst of the presidential election campaign: how comfortable will the judge be starting a trial that requires Donald Trump to be in a courtroom every day?

David Sklansky: Yeah, and that’s all assuming that the Supreme Court said what everybody thought was the law, and until we heard the… until we saw the argument. Most people assume that there was no immunity from prosecution.

Most people assumed that whether Trump actually is guilty of crimes may have something to do with whether the activity that he’s being prosecuted for was part of his official acts as president, but that he wasn’t immune from even having to stand trial, so if the Supreme Court says that’s true, then we still have the problems that you’ve just pointed out, Pam.

But if the Supreme Court says, well, whether he’s totally immune from even having the trial depends on some further factual inquiries about whether what he’s being prosecuted for were private acts or official acts, and it sounded like that’s where some of the justices were going. Then, there’s even more time that’s going to be taken up after the Supreme Court rules.

Pam Karlan: I think some people had kind of hoped the Supreme Court would rule very quickly. I was thinking about examples, you know, the Nixon tapes case, they ruled within two weeks. Cooper against Aaron, which was the case about the desegregation of Little Rock Central High School, they ruled the day after the oral argument.

Bush against Gore, they ruled three or four days after, but after hearing that argument, I don’t see any likelihood that the Court is going to decide next week whether there’s immunity here or not.

David Sklansky: I agree, and they certainly… partly because none of the… as a collectivity, the Justices didn’t seem in any rush to get that decision out there.

Pam Karlan: I think that’s right, and they didn’t seem to be coalescing around a single point of view in the way that, for example, at the Trump against Anderson case about whether he should be kicked off the Colorado ballot in the primary election, they seem to be kind of coming together on a bottom line, and here, it’s not clear… not really clear where they’re going to go. 

David Sklansky: In fairness to the Court, part of that is because nobody, not even the prosecution, seemed to be arguing that the D.C. Circuit’s ruling against immunity should be affirmed on the grounds that the D.C. Circuit had used. 

Pam Karlan: Well, although, I think they kind of pulled a statement out of context and the Chief Justice was pretty dismissive of it, but can I turn to the fourth of the cases because if you had asked me a year ago which case should go to trial first, which case is the simplest, most straightforward, it was the documents case. 

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

We don’t have that. 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 that the last trial date that was set for it, it was, I think, May 20th, which obviously isn’t going to happen, and we don’t have a trial date after that.

We have proposals for trial dates. It is possible that that case will go to trial. The trial dates that the government’s proposed are before the election. Actually, the trial dates that the defense proposed, if there’s going to be a trial at all this year, would be in August, but the defense does say they don’t think there should be a trial this year at all, and the trial judge, A, doesn’t seem very focused on moving the case along, and B, doesn’t seem to be managing the case super skillfully.

Rich Ford: Well, I suppose this is the obvious conclusion, but when is it too late for these cases to go to trial? I mean, I suppose a lot of people think that, I mean, assuming if Trump wins, most of these cases go away, although not all of them.

David Sklansky: I think, 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. Legitimate reasons are, I think that 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 that would interfere with that.

The illegitimate reasons are that if Trump is president, he’s going to be the head of the executive branch. He’s going to… 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… to derail the state cases. 

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

David Sklansky: Yeah. Yeah. Yeah. Yes. That’s even easier. 

Pam Karlan: And there’s not much… I mean, assuming that we get to a verdict in the New York case before the election, and I think there’s, you know, 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.

You know, there’s not much that you could do to derail that case. 

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

Pam Karlan: And the Georgia case. I think even from the beginning, the Georgia case was not going to be tried till 2025, right?

David Sklansky: I mean, we’re going to get a verdict in the New York case unless we get a hung jury, and if we get a hung jury, it’s unclear how quickly the case could get retried or whether it would be retried. 

Pam Karlan: Wow. I mean, you know, when you think about this, it’s just so extraordinary. We went what, 250 years with no presidents ever being, I mean, there’s that famous case that involves like the carriage ride in Central Park and President Grant.

David Sklansky: Yeah, President Grant. Yeah

Pam Karlan: I think that’s like the closest we’ve ever come to where we find ourselves now, and we haven’t even talked about because we’ve been so focused on the criminal cases, the various civil cases against Donald Trump, including one by police officers and members of Congress who were injured on January 6th.

So, you know, he’s a full-scale employment practice for lawyers. So, I want to thank our guest today, David Sklansky. This is Stanford Legal. If you’re enjoying the show, tell a friend, and please leave us a rating or review on your favorite podcast app. It’ll help us improve the show and get the word out.

I’m Pam Karlan, along with Rich Ford. See you next time.