The Ezra Klein Show: Two Attorneys Rank the Severity of Trump’s Indictments

I'm Josh Klein and I'm Elise Hu.

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From New York Times Opinion, this is the Ezra Klein Show.

Hey, it is Ezra.

I am on book leave, but our guest this week is my colleague,

the Times Opinion columnist, David French, whose work I have learned a ton from

and whose just way of comforting himself in public life I've often quite admired.

He began his career as a lawyer.

He has deployed with the US military.

He's the author of many books, including Divided We Fall, America's Secession Threat

and How to Restore Our Nation.

And I'm excited to see what he does here behind the mic.

I hope you enjoy it too.

I met Ken White the first day of law school.

We bonded immediately.

We were both Star Trek nerds.

We were both already losing our hair.

And we were both fascinated by criminal and constitutional law.

Neither of us ever lost that fascination.

And Ken went on to become one of the nation's most respected legal voices

on both the criminal justice system and the First Amendment,

which is why I wanted to have him on the show today.

As much as I love to talk about free speech,

this conversation is going to focus on criminal justice,

specifically the four cases against Donald Trump.

Most recently, we've had the sweeping Georgia indictment

regarding Trump's efforts to overturn the election.

Before that, we had the more narrow federal January 6 case,

which also focused not just on January 6,

but Trump's efforts to overturn the election.

And before then, we had the Florida case involving the handling of classified documents

relating to the national defense.

And last and least, we have the Stormy Daniels Hush Money case.

Ken has unique insight into all these cases

as a defense attorney and former federal prosecutor.

He can dive into both the prosecution and defense strategies

in all four cases against Trump.

Where are they strong? Where are they weak?

Has the prosecution or defense made any mistakes?

If you find Ken insightful, and I know you will,

you can hear more from him on his own podcast

co-hosted by Josh Barrow called Serious Trouble,

and you can read him at his sub-stack called The Popat Report.

As always, you can email the show at ezraclineshowatnytimes.com.

Ken White, welcome to the Ezra Klein Show.

Thank you so much for having me, David. It's great to talk to you.

Well, I'm really looking forward to this episode.

And, you know, one of the goals is to help listeners

be conversant in the big issues in each one

of the criminal cases against Donald Trump.

This is not about diving in deep, deep, deep into the details

because each of these cases are going to ultimately end up

with records running in the thousands of pages.

There's going to be twists and turns.

This is much more of a broader view.

And we're going to be ambitious.

We're going to walk through each one of the four

major criminal cases against Trump in the reverse order

of their filing.

So we're going to start with Georgia.

Then we're going to go with Jack Smith, January 6 case.

Then we'll go with Jack Smith,

Documents Case out of Mar-a-Lago,

and then we'll end up with the Bragg indictment out of Manhattan.

And the goal is to hit what are the big issues?

What's the prosecution sort of best case?

What is the defense's best case?

Which case is most dangerous to Donald Trump and why?

So, Ken, let's start with Georgia.

You have a career as a prosecutor, a federal prosecutor.

You have a career in defense.

You've been on both sides here.

So I'm going to ask you to put on your both sides hat.

And let's sort of start with Georgia.

Talk a bit about how ambitious this case is and why.

How is it that prosecutors may arguably have more flexibility

here in the Georgia case than maybe in the federal cases?

Well, David, the Georgia RICO case

is a lot more ambitious and a lot broader

because they are very deliberately

cobbling together a bunch of different conspiracies

into one big charge.

So that's, I guess, what RICO is designed to do

to allow prosecutors to take on organizations

and groups of people that are doing diverse things wrong

and tie it all into one charge or one set of charges.

So what's really notable about the Georgia RICO indictment

is how it takes a bunch of different,

what you would normally call different conspiracies

to do different things allegedly wrong

in connection with the election,

people who are not interacting with each other.

You know, when you and I were taking criminal law

back in the last millennium,

this would be described as different spokes on the wheel,

people who are completely disconnected from each other,

all doing illegal things towards sort of a general goal.

And that winds up putting together a lot of people

who don't seem like they really go together

in terms of what they're doing

and putting together some pretty wildly different conduct,

which is why you're seeing some very strong motions

to sever out defendants in Georgia.

That's one way the indictment there is different.

The other way it's different is that

it reflects a very different sensibility

about the politics of it.

So we'll talk more about the DC indictment by Jack Smith,

but that one reflected a sensibility

that we're gonna very explicitly say

some things Donald Trump was allowed to do

and were legitimate and that's fine,

but these things were illegitimate.

The Georgia RICO indictment just leans into everything,

throws it all in the same pile,

does not make much of an effort to explain

or advocate about the distinction

between legal politics and illegal fraud.

One question about the Georgia.

So in RICO, you're somewhat famous online for many reasons.

One of them is for loathing RICO

and maybe not necessarily loathing RICO,

but loathing overuse of RICO.

But there's some interesting distinctions here

between Georgia RICO and federal RICO.

Could you walk through some of these differences

between the Georgia RICO statutes

and the federal RICO statutes

and why the prosecutor here might have thought

that RICO was in fact an appropriate method

for charging this case.

So the federal RICO originally designed

to go after organized crime is very rule-bound,

very picky, very complicated.

So every crime or cause of action in a civil case

has its elements, its building blocks,

like the recipe for all the things you have to do

to prove this particular crime.

The RICO elements are extremely convoluted and lengthy

and few cases actually make it.

And it's so common for civil litigants

to bring civil RICO charges

as sort of an exclamation point or basically an emoji.

This is really serious.

It's RICO in fact,

that many federal judges have special RICO orders.

It's like, so you think it's RICO?

Well, here's a sheet with 20 questions I have for you.

By the time you're done answering them,

we'll show it's not RICO.

So the federal RICO charges are characterized

by how hard it is to prove and how complicated it is.

And that's why you don't see it in a lot of federal cases

because there's so many more flexible

and straightforward federal criminal tools.

The Georgia statute is a different story.

The Georgia courts have not imposed a lot of this

sort of rule-bound elements type of approach.

They've taken it more like a general conspiracy

without a lot of complicated requirements.

And a lot of the Georgia court of appeals opinions

considering RICO convictions are kind of frighteningly,

kind of that sort of sounds like what the good statutes about.

Not imposing a lot of technical requirements on it.

So that makes it very appealing

as sort of a super conspiracy statute.

As a result, it is used astoundingly broadly in Georgia.

RICO is used in Georgia the way conspiracy is used

in many other locations.

And it's used in a way that I think in my view is intentional

to make cases that are functionally impossible to defend.

So you have cases that go on for months

and months and months.

You know how expensive litigation is,

David, as well as anybody.

And very few people can afford lawyers

for months and months and months,

let alone also not working because you're in trial.

So you have things like this trial

of the rapper young thug

and some people accused of being in a gang with him.

It's been going on for eight months.

Doesn't even have a jury picked yet.

The case where Fulton County DA Fonnie Willis

went after a education cheating scandal.

That was treated as a RICO and those trials,

the one that went to trial went on for like six, seven months.

So it allows the prosecutors to put together

big, functionally impossible to defend cases.

So first I wanna ask you what you think about the wisdom

of this charging approach in this case.

Because one thing I think listeners need to know

is that often prosecutors overcharge

as a deliberate strategy that they're gonna,

as I've used this illustration before,

they throw charges in an indictment

like you might throw croutons on a salad,

which then creates this incredible list of charges

with lengthy prison sentences attached to convictions.

And essentially you take a defendant

who may not have an enormous number of resources

as you noted and you put them

in this incredibly difficult box,

which is if you go to trial on this monster

of an indictment, you cannot even begin to imagine

the amount of jail time you could face.

Or I have this little plea deal for you here

that's a lot better that you're not going to face

nearly the kind of prison terms

that you could potentially face with a jury.

And we can just get all this settled and deal with this

and move on to the next case.

And that kind of approach isn't applicable here for Trump,

maybe for the others, but for Trump, that's not applicable.

So what do you think of the wisdom of this charging approach?

I think there is definitely an element of politics here.

So the DA of Fulton County is an elected position.

There are political overtones to the whole thing.

It's an ambitious DA.

Those are the circumstances

in which big ambitious cases get brought.

I think that this is designed to be a case

that is functionally impossible

to be defended the way it's charged.

You simply can't take 19 aggressive people

with aggressive lawyers to trial in a giant case at once.

It would go for years,

particularly when you've got personalities

like Rudy Giuliani and Donald Trump in the same indictment,

that's just going to make it go even more circuits-like.

And the judge presiding over this

has already basically pointed this out.

So I think it's a great way, great's the wrong word,

effective way for a prosecutor to coerce

a lot of the smaller players in the case

to plead guilty or even to cooperate to flip.

I think it's a great way to get on the scoreboard

and to bring attention to the charges

and eventually wind up with something less.

I don't know if it's like if your purpose is

to identify what Donald Trump did wrong

and come up with a just result

if it's necessarily the right way.

But this is a very typical state prosecutor tactic.

Do you think there's an overreach here?

Well, this is maybe partially a matter of style or taste,

but I prefer the approach that Jack Smith took in DC

to be very explicit about the things that Donald Trump did

that were permissible and legal

and part of legitimate politics and litigation,

and then leaning into explaining very much what wasn't

and identifying calling those things out

as opposed to the approach Fannie Willis took,

which is much more throw it all in there

and call out everything and really not make an effort

to kind of avoid the appearance of attacking

protected speech or protected politics.

So I think because all of this,

it's not a normal criminal case.

This has historic implications.

It's gonna have a greatly exaggerated impact

on the way Americans understand the legal system

and criminal justice system and that type of thing.

And so to kind of go this kitchen sink approach to me,

I think risks diminishing the credibility,

the whole enterprise of holding Donald Trump accountable

for things that he did that were illegal.

Now there's another aspect of this case

that I think is interesting,

and that is we've talked about the RICO aspect,

but there's a lot of charges

that are related to specific Georgia statutes

that prohibit lying to public officials.

And these Georgia statutes are different

from the federal statutes that Jack Smith charged

on January 6th.

And it strikes me, Ken,

and I'd love your thoughts on this,

that these statutes are easier to prosecute

because what they're essentially doing,

if you look at some of these statutes,

they essentially say this,

if I lie to you, let's say you're a public official,

and I lie to you about a material fact,

and it's within your jurisdiction,

on a matter within your jurisdiction.

So if you're the Secretary of State

and I'm lying to you about voter fraud,

and I'm talking to you in your capacity

as Secretary of State on a matter within your jurisdiction,

I've committed a crime.

I've committed a crime.

I don't have to show that I had an intent, for example,

to deprive someone of their civil rights

or an intent to defraud the federal government.

It's just the lying about the material fact

to a public official within their jurisdiction, crime.

That seems to be, in my view,

the absolute strongest element of this indictment.

Well, sure, it's probably also the element

that carries the lowest possible sentence

of all the different charges, and rightly so,

because we shouldn't heavily punish things

that don't actually have a bad impact.

I think you're right, and I think that the Georgia statute

seems to have a very loose concept of materiality.

That is, how much does your lie matter?

And in both cases, it seems to be,

is the lie the sort of thing

that could hypothetically matter

in a scenario we can imagine,

which is pretty easy to prove.

So yeah, a lot of the smaller things,

the lesser charges are there

that I think are going to be easier to prove,

even given how loosey-goosey George Rico is.

That's one of the reasons

that prosecutors throw those in a lot of the time,

is you're looking for the jury to be sort of saying,

okay, well, this big one's complicated.

Let's just compromise by convicting me on these easy ones

and throwing out the big one or something like that.

And that's strategically why they do it a lot of the time.

So let's talk about this word

that has been mentioned an enormous amount

as soon as the January 6th prosecution started, intent, intent.

Yes.

I think I've seen more internet arguments about intent

in the last two months

than I'd seen in the preceding 20 years.

But let's talk about the intent element in Georgia.

And then by golly, we're going to talk about

the intent element in the federal case.

So if you're trying to describe,

what is the intent that prosecutors

are going to have to show in Georgia,

how would you describe it,

both for the more simple statute that we just outlined

and for sort of the bigger Rico and conspiracy charges?

And then we'll table for a minute exactly the intent

in the Jack Smith January 6th cases.

But what's a brief summary of the intent element

here in Georgia?

So it really varies charge to charge.

On the false statement type of charges,

you've got just a requirement that you knowingly lie.

So you have to say something and know it's a lie.

You don't necessarily have to have an intent,

that's fraudulent, an intent to deceive.

You just have to know that the thing you're saying is untrue.

The Rico and conspiracy and some of the other things

that sound more like obstruction

are going to require some sort of specific wrongful intent

and agreement to violate the law

and agreement to do something wrong.

So generally the more sophisticated the crime,

usually the more sophisticated the mental state.

So some of the crimes are just gonna have to show people

knew they were lying.

Others are gonna have to show that they had fraudulent

intent, the intent to deceive or to fraud.

And some they're gonna have to show

that they intentionally joined an agreement

to do something against the law.

They agreed to commit a crime.

So it depends on the particular charge there.

So if we go, let's say the simple lying charge,

you don't have to prove that Trump knew he lost.

Even if he genuinely thought he'd won,

if he genuinely thought that Georgia was his,

but if he's told a lie in making that case,

he can be convicted.

Whereas the more broader the conspiracy

and the Rico charges, you're gonna have to show

some intent beyond the simple lie.

Right.

And this is something where I think that all of us

who are in the business of being pundits

and talking about all this

have probably over complicated a little bit.

We've been talking about for years how hard it is

to prove intent or knowledge in Donald Trump's case

because of how he processes facts and how he views things

and how he doesn't really sort of see life from truth

or distinguish it the way that we mortals do.

But it's easy to over complicate this.

You don't have to show that he knew he lost anything.

You only have to show, even if he believed he won,

that he pursued that goal through lies

or through fraudulent means

that he tried to get people to violate their oaths of office,

that he tried to get people to do things that were illegal

or that he lied to them in the pursuit of that.

That's much easier.

It's easy because there's a big difference

between the public narrative of what happened

after the election and what these charges actually say.

So even the Georgia indictment

which is much more ambitious and sweeping

and considerably less subtle

kind of concedes that the point is

the illegal way he went about it.

The crime is not believing against all evidence that he won.

The crime is pursuing that belief through fraud and lies.

Right.

Yeah, there are two things that have kind of driven me crazy

in the public conversation.

One is the argument, we don't have to prove intent

because I'm thinking can just read the statutes.

Now, what intent you have to prove

varies from statute to statute.

What do you have to show?

That's one that drives me crazy.

But another one is, well, oh gosh,

if we have to prove intent,

then how can you possibly convict him?

But intent elements are extremely common

in criminal charges and prosecutors prove intent all the time.

This is not a magic get out of jail card to say,

no, I didn't mean it or I didn't mean to tell a lie,

you have to equip me.

Am I right in framing it like that

or am I missing something?

You are.

A lot of what this reflects is this sort of public sensibility

that Trump is so sort of norm shattering

and outside of normal political practices

that the normal doesn't apply and that he's just,

there's also this perception that he's always skated

and he's gonna skate again no matter what.

But I think we're starting to see that sort of just

plotting methodical putting on your case against him can work.

We saw that in Eugene Carroll's defamation case.

We're seeing it in other instances.

And yes, all the time prosecutors prove

beyond a reasonable doubt, intense when it's disputed.

You know, the most common bread and butter

federal charges of wire fraud and mail fraud

require you to prove there's a fraudulent scheme

that you intended to do a fraudulent scheme.

And where Trump is his own worst enemy

is his tendency to talk a lot and say things a lot

which are now being brought to bear very effectively

to help prove intent.

So when you're talking about how do you prove

that someone intended to do something

that they had fraudulent intent,

you do it the same way you decide

whether your teenager is lying to you.

Right.

You analyze what they say to you in the case of Trump,

if you've got him saying something to Mike Pence

like the problem is you're too honest,

then that's exactly the sort of thing you lead with

is they say he knows that what he's doing is dishonest.

So there's some things in the past that we've talked about

that people wanted him to be prosecuted for,

particularly during the Robert Mueller era

where the intent was gonna be hard to do.

But these things, he's talked his way

into a lot of the evidence against him.

Let's move on to Jack Smith, it's a good logical next move.

How would you sort of in a nutshell

describe the distinction?

What's different about the Jack Smith case

versus the Fani Willis case?

The Jack Smith case in DC is brought

by an experienced federal prosecutor

for federal court and it shows,

federal court is very different than state court.

Much more formal, generally,

prosecutors can still get away with a remarkable amount,

but not as much as they can in state court.

Federal judges are tougher taskmasters

to slightly over generalize the court is more concerned

with being rule bound and with protecting

constitutional rights and it's probably the forum

you'd often rather be in as a defendant.

I'd certainly rather be defending the DC case

than the Georgia case.

So Smith seems to be both more concerned

with the fact that he's in federal court

and he can't get away with as much

and he has to be more careful of these distinctions.

He also seems to be more explicitly concerned

with the eyes of history being upon him

and that type of thing with making something

that is more overtly avoiding the appearance

of being deliberately political.

Even though, frankly, I think everyone who thinks

it's political is going to, no matter how you frame it

and everyone who thinks it's not,

it's gonna think that no matter how you frame it.

So it's narrower, it's more specific

and there you've got this general conspiracy

to defraud the United States.

This is the plain vanilla conspiracy statute

used all the time, but there's a clause in there

instead of just conspiring to violate a federal law,

there's a clause for conspiring to defraud the United States

and to cheat the US and that's what he's going with here.

He's going with a conspiracy to obstruct

and actual obstruction and a conspiracy against civil rights.

Some of these people express surprise

when Smith came out with them thinking,

this is sort of very aggressive and forward in legal theory

and really historically it's not.

There are arguments on all of these

for why the law is wrong,

but the law for the last century

has fairly clearly shown that these are all theories

that work, that you can defraud the United States

by interfering with one of its proceedings by deceit,

that you can obstruct an official proceeding

by submitting fake things to it and things like that

and that you can have a conspiracy against rights

through election fraud by trying to fraudulently interfere

with accounting or processing of votes.

You can argue that all those cases are wrong

and that they interpret the statutes the wrong way,

but I don't think you can seriously argue

there isn't legal precedent for all these theories.

Yeah, I think that's a very key distinction

because the arguments that I've seen

from those who are defending Trump,

if they're honest arguments, what they're saying is,

I acknowledge the precedent is against us,

but the precedent is bad precedent

and this current court would not, in fact,

apply the law in the same way.

That seems to be the core of the argument,

but the fact remains that as of this moment,

the precedent does indicate that each one of these charges

is sort of solidly within historical practice.

You mentioned this whole thing

about how we think the Supreme Court would go

being very central to the theories

of the law, the critics of the DC indictment.

And certainly this is a conservative court.

It has overturned a lot of precedents.

I do not see this court as being super eager

to help Donald Trump in these sorts of situations.

This court did not do the things

that Trump partisans hoped it would in connection

with the 2020 election or any of the subsequent litigation

and the kinds of theories people are sort of,

I would call it wish casting,

that the court will step in and narrow

some of this federal criminal law

is not actually the way this court is generally working.

They've stuck their neck out for some things

that are Trump policy goals,

but not so much for Trump as a litigant.

I think that the faith that are going to do that

is misplaced.

Before we leave the January 6 cases,

let's talk a little bit about this attempt

to remove some of these cases from state court

to federal court.

You very helpfully outlined some of the differences

in practice in federal court

and why defendants often like to be

in federal court versus state court.

But let's walk through this removal argument in Georgia.

Sure, well, removal is bringing a case

that was filed in state court into federal court.

And criminal removal, there's a statute

and its origins are uncertain.

Even the cases that talk about it say,

we're not entirely sure what the point of this is,

but it seems to be there wants to be some sort of bulwark

to keep the state from interfering with federal business

through criminal prosecutions.

So there's a statute that says a federal official

charged with a crime in state court

can remove it to federal court

and they'll have a burden to keep it there

of showing that they were a federal official,

that the things they're charged with

are of or relating to the color of their office

to their official business

and that they have a colorable,

that is plausible federal defense,

a defense under federal law.

And so Mark Meadows is the first one really

to have his effort in this case assessed

by the federal judge who's looking at it.

And Judge Jones has kind of got something

of a wide open field here.

A lot of these issues have not been thoroughly litigated.

And he asks one of like almost like a philosophical question.

It's like, what is the heart of the Georgia case?

What is it that has to be related to your office?

And where he kind of comes out is

the heart of the Georgia case is the allegation

of a RICO conspiracy and agreement to violate the law.

Particular pieces of evidence that aren't themselves crimes

are not the heart of the case.

And so therefore, even if one or two of those

are things that arguably are related

to Mark Meadows color of office,

that doesn't make the whole thing related

to his color of office.

He's not supposed to be doing political things.

That's not his function and so on.

This could go either way in front of the 11th circuit.

It could even go either way

in front of the United States Supreme Court.

You've got all these competing interests.

You've got these ideas of federalism

or generally federal courts don't interfere

with state courts, particularly in criminal cases.

On the other hand, you've got the supremacy clause

and the idea that the federal law reigns supreme.

And then you throw all the politics on top of that.

And I have no idea where this is gonna come out.

And one thing that I think is important to emphasize

is even though if this case is successfully removed,

it's still going to be prosecuted

under the Georgia state statutes

and under Georgia state precedent.

So all of the Georgia state laws

that are at issue in the case

are still going to be the laws at issue in the case.

Now there are gonna be differences

in the rules of the federal court

and there's gonna be differences in the jury pool

that you draw in the federal court,

but they're still prosecuting these state criminal offenses

in that federal court, even if it's removed.

They are unless the judge determines

that there's a federal defense that precludes it.

So the precedent seems to suggest that

if the judge determines that there's a federal immunity issue

and holds like a hearing and resolves substituted facts

and that type of thing,

then that could be in effect dismissing the case.

But again, that's a heavy lift for Mark Meadows

and the others here because it's hard to explain

why this stuff is actually related to their job

and why it's necessary and proper.

["The Laws of the Federal Court"]

Let's move on from January 6th to documents

and I'll set it up like this.

It's really interesting to me if you've seen

all of the back and forth of all of the various

legal experts weighing in on all of the aspects

of this case, even though there's a lot of disagreement,

I've seen some general agreement that goes like this.

The Manhattan case involving the Stormy Daniels

hush money payments is the weakest case.

A lot of fights over whether the Georgia case

or the Jack Smith January 6th case is more dangerous

to Trump, where I kind of literally go back and forth

on that in my own mind as to which one is sort

of the more dangerous case for Trump.

And then there's this consensus

where you sort of bring up the documents case

and they go, oh yeah, that one's the strongest case.

And it's really hard to find somebody

who would say anything other than that.

Where do you stand on this sort of consensus

that the documents case sort of is in a class by itself?

It isn't a class by itself

because it's a very different set of facts.

And because Donald Trump in absolutely classic client form

has absolutely sunk himself with his mouth

by repeatedly saying things that undermine

any potential defense he has there,

saying and doing things.

So he is the classic client who cannot keep his mouth shut,

who keeps saying things that lock him into stories,

that preclude defenses, that admit things, stuff like that.

On the other hand, the countervailing factor

is that it is in Florida with a different jury pool

where the hope of at least getting one juror

to hang the jury seems to be much more plausible.

And in Judge Eileen Cannon,

he has a judge who has previously been willing

to really go out on a limb for him to a notable extent.

You know, one of so many he appointed someone

whose decisions in the case

where she basically shut down the investigation

after the search warrant of Mar-a-Lago

were very widely seen as being without sound basis and law.

And you know, draw from that what you will.

So those things protect him there,

but in terms of which case I think is like

the simplest and strongest, the combo,

that probably is the documents case.

There is widespread consensus that his defenses,

that he can, you know, declassify things with his mind

or that they're automatically declassified

when he takes them, that those are nonsense.

They are not taken very seriously

except by the most partisan commentators.

And the record of the things he said

in front of other people, his braggadocio,

his throwing around of papers,

that type of thing is just great intent evidence.

So I think that case is extremely dangerous to him

and really what's standing between him

and probable conviction in that one

is a Florida jury and Judge Eileen Cannon.

Let's talk about the judge for a minute.

You were very polite in your description of,

I believe you said no sound basis

at the risk of using another legal term of art.

I would say that her original decision

that essentially halted the parts

of the Mar-a-Lago investigation was either bonkers town

or in the suburbs of bonkers town, it was so bad.

And in fact, it was sternly rebuked

by the court of appeals.

Yeah, it was functionally lawless.

And the advocacy that led to it by Trump's attorneys

was so terrible that it was that much more notable.

The arguments were terrible

and the way she accepted them

and even did some other things they had even asked for

were terrible.

And federal courts of appeal are not very emotive usually.

It's bad news when they are.

But you can read between the lines,

the tone and of an opinion.

And the opinion overturning her

was fairly brutal in its explicitness.

So this is a judge who has basically gone

way out on her own doing crazy things for Trump.

You've practiced in front of a lot

of different district judges.

I've practiced in front of a lot

of different district judges

and they'll have varying temperaments.

But one thing that I have seen

is that if you're a district judge

who's operating within the broad norms

of the profession,

once a court of appeals has absolutely smacked

one of your rulings down

and done so reading between the lines

in a way that is almost screaming in all caps.

In my experiences, so long as the district judge

is still within those broad norms

of the legal profession,

in some ways they're going to be more careful

because at this point they're in almost a legacy moment here.

And so you saw recently Judge Cannon

just basically granted the prosecution's protective order

motion in the case appears to be adopting

a more careful approach to this.

How much do you think that that really brutal

court of appeals smack down in the document subpoena

and the search litigation?

Realistically, can we expect a more careful Judge Cannon

as a result of that judicial rebuke?

I think there's a number of factors

that lead to a more careful Judge Cannon.

First of all, there's just experience.

She is, and we can probably share this feeling,

preposterously young to be a federal judge.

I think she's only 42.

And that's very young to wield that sort of power.

And a lot of the time when you see a judge,

personally like that becoming a federal judge,

you see some sort of stumbling around at first.

When you see corporate lawyers or other lawyers

whose practice is not so much trial practice

becoming a federal judge, you see an acclimation period.

But often they become very good judges

because they learn this stuff and they learn it as a judge

and they become very careful about it.

Also, there's a community of judges and lawyers

that is different than the political community.

And so the experience of being a federal judge

appears to be broadly speaking sort of moderating.

It tends to move people towards that more

professional consensus middle in terms of things.

And part of that is your reputation

and how the court of appeal treats you

and that type of thing.

But part of it is just the community that you're part of.

The judges you interact with, you go to it for advice,

that type of thing.

Also, judges are human and a lot of the time,

like if a party leads a judge into error

and they get smacked down, judges will sort of

tend to resent that party a little bit.

They will often start thinking,

the last time I listened to you,

the 11th Circuit basically said in judicial terms,

I was being an idiot.

So why should I listen to you?

So I think all those factors will tend

to move her towards the center.

That said, a lot of my commentary about cases

and stuff is saying this thing you think is extraordinary

is not extraordinary.

This judge yelling at the prosecution

is not in the tank for the defense.

That's just the way judges are.

This judge doing this is actually doing

what judges all the time.

It's not such a big deal, calm down.

I can't really say that about Judge Cannon

based on that earlier case.

That was remarkable, totally outside of norms

to extent that makes me very concerned

about the way she's going to approach the rest of the case.

And it would be difficult to overstate

how easy it is for a federal judge to tank a case

if they want to.

Yeah, that's one thing I've tried to communicate

to people about that initial Judge Cannon ruling.

I was gobsmacked when I read it.

I mean, literally just absolutely gobsmacked.

And I'm also much like you can.

I spend a lot of time saying, whoa, hold on, calm down.

Everything is not running out of control.

What you're watching is the system in process.

And this is what the system looks like.

We're within norms.

But that ruling was well outside of legal norms.

Yes.

Now, she has not issued ruling since then

that have been outside norms.

The trial date that she set seems pretty reasonable to me.

The protective order that she just outlined

seems pretty reasonable to me.

So since then, she seems to have pulled in a bit.

But you're absolutely correct.

We shared the same view.

But let me do a little detour here

because when you're talking about judicial norms,

the Trump team has filed a motion for the judge

in the January 6th documents case

to recuse herself based on statements

that she made in other January 6th cases.

And I know you've looked at this.

This is the federal January 6th case.

What are your thoughts on the Trump team's recusal motion

and what the judge had said in that case?

I don't think it will succeed or that it should.

And I think it illustrates the difference

between what people think the rules for recusal are

and what they actually are.

Federal recusal is extremely narrow.

And in general, there are only two ways you get there.

One way is where the judge's comments

are simply so historically extreme and out of bounds

that no one can possibly take them seriously

as a neutral judge.

The other is if it's from an extrajudicial source,

the defendants are an extra neighbor

and they hate them, that type of thing

from extrajudicial reasons.

Here, Judge Chutkin in some of the January 6th cases

where defendants were saying basically,

well, I was there because of Trump made comments

to the effect of, well, the person who inspired you

to do this stuff isn't in jail, maybe you should be.

So you can certainly see why that seems to show

some pre-judging of Donald Trump

and you could imagine a system where you argue

that makes her ineligible because she's expressed that.

But it's not extrajudicial.

So she's come to that conclusion based on the evidence

before her in court in related cases.

And that generally is not a basis for recusal.

And that's why a judge can hear a bunch of related cases

without having to recuse themself.

The thing is recusal is a doctrine

largely developed by judges and administered by judges

and they understand each other and judges,

how can I put this, they run their mouth a lot, okay?

And you can't always consume what they say

on a explicit or literal, any more than you can with Trump.

You know, federal judges emote as much as ones,

you know, the proverbial uncle at Thanksgiving.

And judges understand that.

And so they don't take each other any more seriously

with that type of rhetoric.

They don't see it as extreme.

They see it as just sort of, you know,

you got a black robe, you're sitting up there,

everyone's listening to you.

You're gonna say what's on your mind

and that's the way it comes out.

Yeah.

It is a unique experience and lawyers who are listening

to this will relate to the experience on being

on the receiving end of a judge who is venting.

And it's really unlike almost any other venting experience

that you'll ever endure

because you really are limited in your ability

as a practical matter to vent back.

But you know what, once you understand

that's just kind of the way they are,

you get used to it and not such a big deal anymore.

Yeah, exactly.

All right, well, let's end this with a discussion

of the first indictment brought against Trump

and that's the Bragg State Court indictment

related to the Stormy Daniels hush money payments.

And again, it's really remarkable

with all of the various competing legal arguments

in a hyperpolarized nation.

There is an absolute consensus

that this is the weakest of the cases.

And rightly so.

Right, and why is that?

So, I mean, there are a lot of sort of

rarely enforced, scarily flexible laws out there

that are rarely charged but could be

if a prosecutor just has it in for you

and wants to find some way to do it.

And this falsifying business records charge in New York

seems to be such a thing.

And the cases characterized by the way they went about it.

You know, they did these tons and tons of counts

just gratuitously, what is it?

34 counts of falsifying business records

for the concept that false notations were made

in various types of check ledgers and things like that,

indicating that money going to Michael Cohen

was for legal services as opposed to a way

to reimburse hush money to an adult actress.

And in addition to kind of being in,

and you can bleep this if it's inappropriate,

widely considered to be chicken shit,

which it kind of is.

It's a petty thing that they've made into a huge thing

and put 34 counts of.

I think it's extraordinarily hard to prove

Trump's individual understanding or knowledge of it.

Trump does not strike me as a generally accepted

accounting principles guy.

The thought that he personally directed

or was involved in personally directing

the way payments would be classified

and did so with fraudulent intent

seems like a much bigger lift than saying that,

you know, he lied to the Georgia Attorney General

or something like that, Secretary of State

or something like that.

It's complicated, it's nitpicky.

It's not the sort of thing you would really see him

getting his hands dirty with.

It's not the sort of thing you would even necessarily

see him as understanding very well.

So I think that it's a flailing around trying

to find a theory on which they could go after him

because they're so mad at him.

They've put so many resources in trying to get him.

So they find this, okay, well,

he treated this hush money as something

that actually wasn't, and you know, let's say that.

So kind of comes off as desperate to me.

Certainly when it seemed at the time as if it might be

the only criminal consequences of his long pattern

of illegal behavior,

it was very disappointing.

Now I think it's kind of more embarrassing

when you compare it to the other cases.

Yeah, you know, and just to sort of like nail down

the specifics, it really depends on a two-step process

because there's the step one which is,

did he falsify business records?

Which there's a pretty strong case that business records,

and I'm gonna use sort of passive voice here,

were falsified, but that's a misdemeanor.

Right.

Not only is it just a misdemeanor,

it's also misdemeanor that's probably time-barred.

It's probably where probably passed

the statute of limitations.

So to make this the more serious case,

you have to show that these business records were falsified

in furtherance of the commission of another crime.

Right.

And so you have to show that there's another crime

in play here, and that isn't really specified

with that much clarity,

at least in the initial charging documents.

And that's where they're just gonna have a problem,

a proof problem in that case regarding this other

extra step that is the one that A,

turns it from a misdemeanor into felony,

and B, at least stabs at dealing

with some of the statute's limitations issues.

Well, the statute limitations, as I understand it, David,

that their theory is that basically there's

a New York statute where if you're out of state consistently

for a period of time, the statute's told,

and so he was in Washington and Mar-a-Lago,

and I think that's their theory.

So from what I've heard, generally,

that's not considered to be as better defense.

But yeah, I agree with you that the extra step

of making it into a felony by having to connect

to some other crime is a problem.

Apparently they're thinking maybe it's campaign finance fraud,

which has even more exacting intent standards.

Often you have to know you're violating the law there.

Good luck proving that.

Or it might be under this weird New York statute

corrupting an election or whatever it is.

Those are big lists, but I just, to the very basic idea,

I think it's very hard to show that he is personally directing

how this is gonna be treated or that he cares.

Maybe they have Michael Cohen testifying.

He's gonna be a terrible witness,

his rehabilitation to or not was standing.

Maybe they've got some of the accountants

putting Trump in there, but yeah, I mean,

again, you've got a New York jury,

so maybe they're more adverse to Trump.

You've got state court, more loosey-goosey with the rules,

but still it's no question it's the weakest.

Okay, we've talked about all of these cases.

We have at least three trial dates right now

dating before the election.

And so let's just wind up with a brief discussion

of the trial dates.

Sure.

How many of these trial dates do you think will stick?

In your experience, when you see an initial trial date set,

like we have seen in some of these cases,

how often do these initial trial dates stick?

Is it actually the case that we'll have

multiple criminal cases of Donald Trump

in the height of the campaign?

Just transparently in where I'm coming from this.

I have been dubious that we will have

all of these things unfold in 2024.

I am also dubious they will all unfold.

I think given the way the judge's attitude,

there's an excellent chance that at least one will.

Judge Chutkin in DC and Judge Cannon in Florida

have announced trial dates that are in my view

pretty aggressive, much more aggressive

than I would expect for white collar cases

of this complexity.

So it is very routine for white collar criminal cases

to take a very long time to go to trial.

And the excuse is usually,

but you're on or there's millions of documents

and so forth, but these are complex cases

with tons of witnesses and players.

So the relatively early in 2024 dates we've gotten

in those two federal cases are aggressive.

And I think suggest that those judges

are not gonna let them delay forever.

Some federal judges are big believers

in what's called the rocket docket.

I gotta keep my docket moving,

so I don't care what you need or what you want,

you're going to trial.

And that's often used basically to coerce people

into settle civil cases or plead guilty in criminal cases.

But that suggests to me that the federal cases

are more likely to move forward.

I'd say particularly the DC one,

given Judge Chutkin's attitude there.

But in Georgia, it may be that these get split up

into a bunch of different little cases.

I think some of the ones related to Trump

are going to go to trial before the election.

I'm not sure if Trump's himself will.

And that's gonna, we're gonna see

once the judge starts ruling on his own motions

as opposed to his co-defense motions,

where that's likely to go.

But I think it is strongly likely

that at least one of these criminal cases

is going to go to trial before the election,

maybe two or three.

It's also possible that all four

are booted until after the election,

which would present in a very stark way

this idea that part of what's at issue in the election

is ultimately whether he is a practical matter

gets tried at all, at least in the next term.

As the head of the executive branch,

which includes the DOJ, if he wins,

he could direct the DOJ to drop all the cases against him.

Just wipe these away.

Or he could pardon himself.

Right.

Which I suspect would be his move.

There's controversy over whether that's legal,

but it's almost certainly a political dispute

that's not justiciable by the courts.

So yeah, that's very stark.

He can't, of course, pardon himself on the state claims,

but he could get rid of the federal ones.

And I think the federal ones

are probably the two most dangerous cases for him.

All right, Ken, at the ending of the Every Ezra Klein Show,

there are three book recommendations

that we ask our guests to make.

So what three books are you recommending to listeners today?

So I'm recommending three very different books.

One is Pax, P-A-X, by Tom Holland, not Spider-Man,

the British popular historian,

writing about the peak of the Roman Empire.

And he's got a fantastic narrative voice,

and he's one of those historians who really has a way

to make his enthusiasm for the subject matter

and the period jump off the page.

The next one is Shadow Docket by Professor Steve Vladik.

I'm sure you've read this one, David,

and this is the one about how the Supreme Court's

motion docket, how ruling on special emergency motions,

how the difference it can make in the law

in ways that are not immediately apparent to us

and sort of these big changes that are made

kind of behind the scenes in a way

that are not consumed the same way as opinions and cases.

And then finally, the third,

one of my favorite authors, James Elroy,

one of the most pessimistic and darkest authors

about America and what it's like.

His news book is The Enchanters.

He's got this infectiously pessimistic

down on everything voice.

He's kind of like, he's to drag net

and the notion of cops the way,

Game of Thrones is to J.R.R. Tolkett.

And he's sort of like the seedy side of it all exposed.

He uses language in a really interesting way

and I can't resist him.

Thank you so much for joining the Ezra Klein Show.

Thanks for sharing your expertise

and especially from my standpoint,

it's great to see you and it's great to chat with you.

So thanks for joining me.

It's good to see you again too, David.

It's like the fall of 1991 all over again

and first learning some of this stuff.

All over again.

Oh, those glorious days when we had hair on our heads.

Exactly.

Thank you, Kim.

Thank you.

This episode of the Ezra Klein Show

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