Harry Litman [00:00:07] Welcome to Talking Feds, a round table that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. The original animating idea of this podcast was to provide listeners a genuine sense of how prosecutors analyze and decide issues, as opposed to the 15 second sound bites that we breezily serve up on cable shows. It's evolved quite a bit since those early days into the current juggernaut that it is, but today we return to our roots. Private citizen Donald Trump, no longer protected by any form of presidential immunity, is facing an avalanche of lawsuits and potential lawsuits against him and his family and close associates. State and federal, civil and criminal and business and personal, the latest is a nine count civil case brought Friday by Congressman Eric Swalwell for damages growing out of the January 6th insurrection. No fewer than three of these present the tangible possibility of a felony indictment, which would be a first in US history.
These three cases are our focus today on Talking Feds. We will analyze them from a different standpoint than you've probably heard, much more in the way that the prosecutors in the various offices are currently approaching them. We'll get down to the nuts and bolts questions that prosecutors wrestle with in determining whether to bring a case. How will the government prove intent? Will the defendant testify? How will the star witness hold up? What's the weak link? What legal issues could dominate the case? It's a Talking Feds version of a meeting of five top prosecutors kicking the tires of an important case or cases to be sure they are strong and in the parlance of prosecutors, righteous. Unlike the prosecutors in the various offices, we're limited to what's in the public record, but that permits people who have spent their careers as prosecutors to offer up a wealth of informed speculation.
And today, we are really fortunate to welcome some of the most experienced and high powered former prosecutors in the country, who among them have brought some of the most challenging and high profile cases in the last 50 years. And they are Cynthia Alksne. Cynthia is an MSNBC legal analyst and a former prosecutor with a wealth of experience in both the federal and state systems. She's been an assistant D.A. in Brooklyn, an assistant attorney general for the state of Texas, a prosecutor in the Civil Rights Division of the Department of Justice, and an assistant United States attorney in Washington, D.C. Cynthia, welcome to Talking Feds.
Cynthia Alksne [00:03:07] Thank you.
Harry Litman [00:03:07] And coming to us from an undisclosed location where the sound is a little marginal: Andrew Weissman, a distinguished senior fellow at NYU, as well as the co-chair of the Investigations Compliance and Defense Practice for Jenner and Block. Andrew has extensive experience prosecuting and supervising high profile cases. He served as team leader in Robert Mueller Special Counsel's Office as chief of the Criminal Fraud Section at DOJ and an assistant U.S. attorney and supervisor in the Eastern District of New York, where among his many victories, he led the successful prosecution of Vincent Gigante, who obscured his leadership of the Genovese crime family by wandering the streets of Greenwich Village, muttering to himself in bathrobe and slippers. Andrew is also the author of The New York Times best selling "Where Law Ends: Inside the Mueller Investigation. Andrew, thanks as always, for joining us.
Andrew Weissmann [00:04:05] Great to be here.
Harry Litman [00:04:06] Jennifer Rogers is an adjunct professor at New York University, as well as a legal analyst for CNN. She was an assistant United States attorney in the Southern District of New York, beginning as a line prosecutor and going on to hold several supervisory positions, including as a deputy chief appellate attorney, the chief of the organized crime unit and a chief of the general crimes unit. Jen, great to have you back on Talking Feds.
Jen Rodgers [00:04:34] Thanks, Harry.
Harry Litman [00:04:35] John Gleeson, a partner at Debevoise and Plimpton, where he went after serving 22 years as a federal judge in the Eastern District of New York. He took the bench after a legendary career as a federal prosecutor in the Eastern District of New York, during which his many successes included heading the team that convicted John Gotti. I actually was the young punk who vetted him for the judge position, and I can report that he was held in awe and considered the ultimate prosecutor's prosecutor by everyone in New York, which is really saying something. He's been a role model and mentor to a generation of New York lawyers, and it's only taken us at Talking Feds two years to get him to join. Thanks very much for being here, Judge John Gleeson.
John Gleeson [00:05:22] My pleasure. Thank you for having me, Harry.
Harry Litman [00:05:24] All right, we've got three cases to work through, and only about 50 minutes or so to do it. So let's start with the Fulton County case out of Georgia, the Atlanta area. Can somebody sort of set the table on this one for us?
John Gleeson [00:05:40] Sure. I set the table. This would be an interesting prosecution if it's brought. It's Fannie Willis, the Fulton County prosecutor has stated her investigation has commenced into whether or not criminal activity occurred, and the essence, the bulk of the case really is a conversation many of us have already listened to, a long conversation that the president had with Brad Raffensperger, the secretary of state of Georgia, in which the then president famously encouraged Raffensperger to find enough votes for the president to win Georgia, notwithstanding what many people believe are indisputable historical facts that the president lost Georgia. The potential allegations of criminal activity include solicitation of electoral fraud and false statements to Ralph Amberger and other government officials, related charges, conspiracy and racketeering. There's a federal offense that prohibits interfering with the people's right to elections...
Harry Litman [00:06:50] But this is all, we're talking all about the state charges that she might bring right as the DA?
John Gleeson [00:06:55] We are. You know, so the question is going to be whether or not the president in this fairly public conversation that included the chief of staff and one of the president's lawyers and the secretary of state of Georgia and others, whether he committed a series of violations based on his effort to get people to throw the election his way, that's how the prosecutor would put it.
Harry Litman [00:07:20] OK, now, by the way, he didn't know it was being recorded. It was interesting that Raffensperger did it, but you said many people believe I would say almost all sane people do. Let's say Trump didn't or a jury actually believed that he had won. Would that be enough to get him off? If he's saying all these things and he actually believes they're true, does that negative his intent? And does he, does he walk?
John Gleeson [00:07:46] In the main? Yes. And it's actually better, I don't mean to get all lawyer on you, but...
Harry Litman [00:07:51] Yeah, no — we're getting all lawyer today.
John Gleeson [00:07:53] Better than just a defense because a defense connotes something that the defendant would have to prove, this is you know, it's not the court of public opinion. That is Willis would bring her case and it would be a court of law in which at the heart of the prosecution would be an allegation the government would have to prove beyond a reasonable doubt. Certainly with respect to any allegation of a false statement that it was knowingly false, you would have to prove that Donald Trump not only said things that were not true, but that he knew they were not true, and that would be the government's burden.
That knowledge of falsity of his various allegations of electoral fraud would be integral to all of these claims. So, yes, around the edges, are there possibilities that a prosecutor might bring a charge that wouldn't require knowing false statements? Maybe, we could talk about that, but the gist of the case would absolutely require proof beyond a reasonable doubt that the former president knew that the statements he was making — many people believe were patently untrue — were, in his mind, subjectively false.
Harry Litman [00:09:05] And is everybody down with that? The charge under Georgia state law, solicitation of election fraud. He does say 'I just need X plus one votes,' 11,780, if he's pushing on him to get them and it's just that many, but he does think he won. Is everyone of a like mind that if that's all we can prove, that's not enough?
Cynthia Alksne [00:09:29] I'm certainly of that mind, if you can't prove that he knew that he didn't win the election. I mean, but there's lots of other things that can go in in that phone call in addition to the 11,780: threatening in a way to the lawyer and to the governor, he's talking about a big risk to them, he says things like, 'well, there's nothing wrong — what about saying that you recalculated,' and he's doing different things to try to get around what it feels like, trying to get around the truth. But you can see that this trial could turn into a complete circus and a relitigation of whether or not he won or not. I mean, just imagine who they would call to say he really did win.
Harry Litman [00:10:07] Well, what do you think? Who would they call? So you're saying they try to call people to say he really did win, or it would be reasonable for him to think it, so whom do they call for that? First they could call him, but that's precarious right?
Cynthia Alksne [00:10:20] Yeah, they would never call him.
Andrew Weissmann [00:10:22] They're not going to call him, but one of the people, I think would be a potentially good witness, but fraught with peril, are the other people on the call with Donald Trump. So, you know, classic defense. I have had lawyers on the call, and I thought if I thought I was doing anything wrong or illegal, they would have stopped me. And I think that may be a bit of a harder sell to a jury to get them to look beyond that.
John Gleeson [00:10:53] I agree with Andrew that proving as a historical matter the falsity of these statements is the easy part. And the hard part is going to be the president's knowledge, and in a way the president's lawyers would say that his defense is built into the statement. He said this is what the political people are telling me and the defense will be looking. Surrounds himself with sycophants who tell him what he wants to hear, they told him there was rampant voter fraud in Georgia. And the question is not whether or not what he said was false, the question is whether or not he believed that it was not false. And in a way, the defense would dovetail perfectly with a popular conception of his presidency, which is he wasn't very careful about learning the actual facts and lived in an alternative fact universe.
Cynthia Alksne [00:11:43] And you can tell they were feeding him information to support the big lie. He said, 'well, you know, what about the X amount of people who were dead and voted?' And he had a specific number. Well, somebody told him that number. 'What about Dominion shredding something?' Well, someone told him that. And and Mark Meadows is on the call, and I think Andrew's right, Mark Meadows would come in and say, 'well, I told the president that there were problems.' Mark Meadows will say whatever president wants a result. So it could be very quickly a circus. Remember, also, there's other things that are part of this, too. There's him calling the investigator, 'find the fraud.' There's him going to pressuring Kemp, the governor, to get a special session. There's the question about the U.S. attorney resignation, so there's other things outside of this call that could create the conspiracy, but there are problems with the intent question.
Harry Litman [00:12:32] Yeah. I'll just quickly specify for listeners, the US attorney quits sort of precipitously, and and it seems now it's because he was ordered to try to pursue some kind of federal remedy for something that he knew was false. OK, so I'm hearing everyone say this is a really tough case. Let me just zero in on one thing Cynthia said. So even if he believes it's true, he does at one point say to Raffensperger, 'Brad, this is criminal culpability. This could be a big problem.' Is that not a separate offense, a kind of a blackmail under state law, even if he thinks that he has won the election?
John Gleeson [00:13:16] Well, that's a little more nuanced, and it ought to be. There is in Georgia, as there is in a lot of states, they call it theft by extortion in Georgia, which prohibits unlawfully obtaining property of another, come back to that in a second, by threatening to, among other things, accuse that person of a crime. So, let's say the state prosecutor decides to go down that road. There's going to be the obtaining property part, and those of us who have been hanging out in the federal arena know how nettlesome an issue that can be. Second is going to be a fact issue because, of course, the president's lawyers are going to say he didn't threaten to accuse him of a crime. He didn't say he was going to take him to a prosecutor.
And I've actually had cases, prominent clients, whose identities I will never reveal to you, who have been the subject of shakedown attempts. And I've successfully pointed out to counsel for the people who are shaking them down that it violates the law to say you're going to go to the D.A., and so that works. On the other hand, there's this word unlawfully obtained property. So even if even if getting the secretary of state to get them votes is property, even if that's a threat to accuse him of a crime, again, I think it comes back to whether he actually believed he was the victim of election fraud. And if he had that subjective belief, even if it was dead-bang wrong, then, you know, he acted like someone who was the victim of that kind of illegal activity. So one wonders whether the unlawfully obtained part of the Georgia statute might be an impediment.
Harry Litman [00:14:57] And to even get more lawyerly here, technically, it's can the government prove beyond a reasonable doubt that he had that, et cetera? So I'm hearing everybody say this is a really uphill case. Take one step back now and just look or hear the sort of indications coming out from the Fulton County D.A. It feels to me, notwithstanding all these problems that John and others are identifying, that she's pretty gung ho. And it's a simple case, and one that I think could be actually unveiled within a couple of months. So I'm hearing the possibility of a real kind of debacle. This would be the first indictment ever against a former president, and it might turn into a circus, as Cynthia said. Does your reading of the tea leaves also indicate that she's leaning heavily toward bringing charges?
John Gleeson [00:15:49] Hard to say with any certainty, but look, prosecutors like Moby Dicks and let's face it, there's no bigger Moby Dick out there now. And and second, you know, you're talking to a bunch of lawyers here, not likely to be a whole lot of lawyers on that jury in Fulton County. So that's another factor that I think weighs in favor of kind of discounting all the concerns that we've expressed here.
Harry Litman [00:16:16] All right. But we're good prosecutors, and one of our jobs here is to decide whether a conviction is probable, also whether it's sort of righteous. So our job, I assume, if we think that it's not probable, is to stand down. Everyone agree?
Cynthia Alksne [00:16:33] Hey Harry, can I ask your question? What do you think about the D.A. giving interviews on this? I'm old school.
Harry Litman [00:16:39] Yeah, I think she's too out front. She's a new D.A. In general, I'm a fuddy duddy fed, and now you've been in both roles, so maybe you're not. But, you know, I think you speak only through your filings in court. But that's that is not happening here.
Cynthia Alksne [00:16:53] I'm not taking fuddy duddy. I'm not taking fuddy duddy, but I'll take old school and it doesn't seem right to me.
Harry Litman [00:16:58] I mean, there's going to be a whole public aspect. And of course, she's leading with her chin a little bit because the other defense besides that he thought it was true is, this is all political and an attempt to take revenge on a political opponent, etc. All right, so let's move now to the investigation, it's probably been the most in the news by D.A. Vance, who we know just last week got his hands on Trump's tax records from accountants, an effort that Trump had fought for a couple trips up and down to the Supreme Court. Now, there's things here we don't know, and I think a lot of things here he doesn't know because he's just beginning to go through the millions of pages he's gotten from the accountants. But, Jen maybe, I think you've been following this pretty closely. Can you sort of lay out our best idea of what they're looking at here?
Jen Rodgers [00:17:50] Sure. So so this is a much wider ranging investigation than what we see out of Georgia, it starts with the hush money payments that we know were made in 2016, for which Michael Cohen took a guilty plea in federal court for the campaign finance violation. So Cy Vance started this by saying that they were looking into how the Trump organization accounted for those payments. And so that's where they started, that's the public-facing reason that they said drove the subpoena that, as you said, went up and back to the Supreme Court. But it has since expanded, and as reported, they're looking at a whole bunch of different kinds of fraud, tax fraud, bank fraud and insurance fraud having to do with the way that the Trump organization valued certain assets like properties that they held. So if you think about it in this way, you could take a particular property, and there's this Seven Springs property that's north of the city that's been in the news a lot. If you are paying your property taxes on that property, you want the value to be low. If you are getting a loan and using that property is one of your assets, you want the value to be high.
If you are, at least according to Michael Cohen, who testified about this, getting insurance and you want to show that you're a rich guy, you also want the value of that property to be artificially high. And this particular Seven Springs property was actually used for a tax write off. They gave a conservation easement as a donation and took a tax write off of that. So that, of course, they want to be artificially high so that they can take a big tax write off. So you can see the ways that you have an incentive to change around, manipulate the value of a property depending on what you're using it for. And Michael Cohen has said that that is what was happening with various properties in the Trump organization, and that Donald Trump knew about that.
Harry Litman [00:19:50] Yeah. So he says that's their basic M.O.. I've had cases like this where very confusing, paper driven charges suddenly become clear because the low value is hard to grasp for some jurors in the high value. But when you put them next to each other, the contrast screams out. But, you know, in explaining this, just setting the table, Jen, I think you were inevitably had to say the name twice, Michael Cohen. What's your guys' thinking about how much the case has to be made through him? And is that a big problem? He's been convicted and people know he hates Trump.
Jen Rodgers [00:20:28] Well, worse than that. I mean, the feds didn't sign him up because he wouldn't come clean, and he wouldn't plead guilty to what they want and he wouldn't tell them about all of his criminal activities.
Harry Litman [00:20:39] By the way, and that's Brady material, right? They're going to have to tell the defense that fact.
Jen Rodgers [00:20:44] Yeah. So he is, I would say, a troubling witness, to say the least. And I think that's why it's been reported that Vance's circling around Allen Weisselberg, the CFO of the Trump Organization, he's effectively the accountant, you know, the books and records guy who knows where everything is...
Harry Litman [00:21:04] Yeah, if he cooperates, he's classic. Well, what do you guys think? Who do you put on first? Any of you old trial lawyers, who do you put on first in this case?
Andrew Weissmann [00:21:11] I'll take a crack at that. So I think there's no way in God's green earth that Michael Cohen could take the stand...
Harry Litman [00:21:17] Even take the stand. They don't even put him on, OK?
Andrew Weissmann [00:21:20] It's also the case, he doesn't seem to have any direct evidence anyway. And I'm all for witnesses who have committed crimes of the past. But he has neither really good direct evidence and as Jen said, has not fully cooperated with the government. So I think he's sort of a nonstarter.
Harry Litman [00:21:37] Even on this core point, Andrew, of just the valuation of the Stormy Daniels payment? And, you know, he's got the phone call?
Andrew Weissmann [00:21:46] All of that I think you're to be able to get through other people. And I don't actually see the Stormy Daniels case as being the critical piece. I think this looks to me like just a classic financial case like Jen said. Where you're going to be looking at bank fraud, insurance fraud, tax fraud. Did Donald Trump and other people follow their motives of inflating when it was in their interests and deflating, when it was in their interest in inconsistent ways. This is exactly what we did with Manafort, I think the trick here is going to be similar to what we talked about in the Georgia case, which is you have to prove Donald Trump's intent.
Harry Litman [00:22:23] Right.
Andrew Weissmann [00:22:23] And having the accounting records and knowing what the accountants were told and by whom is going to be critical. It helps the government that it's a small organization and there aren't that many people for Donald Trump, a notorious micromanager, to have relied on. But I think Allen Weisselberg it's either going to be the fall guy or is he going to be the key cooperator. And that traditionally in an economic crime case like this happens to the CFO. They're sort of in the wrong place at the wrong time, and I think there's going to be enormous pressure on him to flip.
Harry Litman [00:23:00] To flip and cooperate. I mean, he could be both, right? The government could put him on and say, we did all these things, I told Trump. And then the defense comes forward, here I think his defense is more routine. I mean, in the Georgia case, we have the strange psychology of Donald Trump and how he believes falsehoods perhaps. Here, I think it's pretty standard that a CEO would say, 'oh, I was too busy, the accountants did it, I never heard what they said.' So you're going to have to have, I guess, Weisselberg say something like, 'I told them' to establish knowledge?
Andrew Weissmann [00:23:37] Yeah. I mean, I think the the accounting records could be really central. I mean, I'm thinking in the Manafort case, we got the accounting records, they were direct communications with Paul Manafort, that the case was basically over when we got those records. So here, it'll be interesting to see what, if anything, happened directly with Donald Trump. But Trump, like people like Skilling and Lay, apparently did not use email. So you don't have email, you're going to really need to have witnesses around Donald Trump. But there are other people who work there aside from Weisselberg, and so you can be pretty confident that the DA is going to be approaching all of them and trying to jam them up, because they'll need it.
Harry Litman [00:24:24] And approaching them in a starchy way? Like saying you better cooperate or we're going to charge you?
Andrew Weissmann [00:24:29] Yeah, I would think in a traditional way you build a case and unlike what happened in the special counsel's investigation, they're not going to have to worry about somebody pardoning them because Andrew Cuomo, if he is still the governor, is not going to be pardoning any of these folks.
Harry Litman [00:24:47] You think Trump moves and do you think he's successful if he does, for a change of venue? He'll say New York hates me. I'm from New York. They know me, so they loathe me there.
Cynthia Alksne [00:24:57] I don't think he'll get a change of venue. But I wanted to make one point, just as you know, Brooklyn ADA, and that is that the grand jury process is very different as he's developing this case. You can't just put everybody in the federal system. You would put all these people in the grand jury and make a record and you could use that and build on it.
Harry Litman [00:25:15] Or you'd put an agent in the grand jury just to say —.
Cynthia Alksne [00:25:17] Just to say, I did this interview and so-and-so told me X, Y and Z. You can't put hearsay in the grand jury in the state system. OK, we have to follow the rules of evidence, so you can't say, 'hi, I'm Special Agent Joe and I spoke with Rosemary Vrablic. I can't pronounce your last name. And she told me that Trump told you you can't do that. There's no hearsay. So you have to actually put it in as if you were putting it in trial. And it's makes it much more cumbersome.
Harry Litman [00:25:43] And they get immunity, too, right?
Cynthia Alksne [00:25:44] They get transactional immunity. It's blanket immunity. It's get out of jail free.
Harry Litman [00:25:49] Basically are not going to get charged in the case.
John Gleeson [00:25:51] Yeah, unless they waive it. So if you put the wrong person in, you might put in you might forward transactional immunity to the person who committed the crime.
Harry Litman [00:25:59] Another reason you don't want to have Michael Cohen in. But how can you put him on without having him in?
Cynthia Alksne [00:26:03] Well, you can't. And like, for instance, you might be interviewing all these accountants to try to find out who, you know, who learned what, and all of a sudden you've put in the wrong accountant. The other thing is, I'm really interested in focusing on this woman from Deutsche Bank, Rosemary, whose name I can't pronounce, V-R-A-B-L-I-C, because she's supposedly also knows where the bodies are buried and how it was done and how these loans were done, specifically on the properties in New York City. I'm looking to see if they could do something about flipping her.
Harry Litman [00:26:32] You guys have all of all worked in and around New York a lot. And Vance is brought on, I mean, they've got a lot of powerful trial lawyers in the DA's office, but he's brought on a big former Fed Mark Pomerance. Do you guys know him? And what did you make of that move?
John Gleeson [00:26:48] Well, yeah, I know him from way back. He used to be surprisingly enough, he used to be on the defense side in the organized crime sphere. He worked for Ron Fischetti way back when I argued an appeal against him in the John Gotti case. But he's a great lawyer, he's a very bright guy, had a brilliant career at Paul Weiss. I was a little surprised to see that Cy did that because, as you say, there are a ton of very accomplished lawyers in the district attorney New York office, but I suppose it's a measure of the seriousness with which Cy's going forward with this investigation.
Jen Rodgers [00:27:23] So I started at SDNY just after Mark Pomerance left as chief of the criminal division during his second term. I didn't work with him personally, but I have to say he's one of the legends of the office. You always heard he was just a brilliant trial lawyer, one of the best criminal division chiefs we ever had. So I've only ever heard really stellar things, and I think just to Judge Gleeson's point, certainly Cy Vance has an amazing team with plenty of talent. It may just be that Pomerance wanted to come in and help, you know, not so much that they desperately needed him, but that he was willing to do it. And certainly he has decades and decades of experience. So I look forward to seeing what they do. I mean, between that and the move to retain the firm that can help with the forensic kind of digital searching and evaluation of the accounting and tax side of things, they're clearly very serious and looking to move forward quickly.
Harry Litman [00:28:16] Right, they've brought in this company, which, among other things, really costs a lot of money. And one thing that might or might not be relevant, but I only learned preparing for our episode today, is that Vance is not going to be running for reelection. So he's out as of December 31st. So there won't be the charges of he's trying to get a big scalp. All right, any final thoughts about the Vance prosecution, likelihood, difficulty, when it would happen?
Cynthia Alksne [00:28:43] I can only say I understand that there are people in the Manhattan DA's office who are unhappy because they feel like they've been bigfooted. They have this legendary guy who's come in and it reflects that maybe there wasn't the faith that they could do it.
John Gleeson [00:28:58] Yeah, and I'm glad Cynthia mentioned it. It's a morale, it's obviously a morale issue. It suggests a potential belief on the DA's part that his current staff is not up to it. I hear Jennifer's point, he's value added, but you have to wonder about the morale of the people who otherwise would be performing the role that Mark is going to perform.
Harry Litman [00:29:19] Which is what, by the way, do you see him as if they go to trial, being first chair?
John Gleeson [00:29:24] Who knows? But I can't imagine why he would do it if he were not going to play a prominent role in any subsequent prosecution. I'll just add this by way of conclusion on this, I agree completely with the notion that you don't put Michael Cohen on, even in a case that's not high profile. Prosecutors don't rely on witnesses that aren't completely on Team America or Team New York. And I think Andrew is right, you're not likely to get that kind of email evidence against the former president, but you'll be looking for the people who do attribute the mens rea to him, the specific intent and knowledge that's going to be required. They'll be looking for emails that they send to others that will corroborate what they say on the witness stand about what they've said to the president.
Harry Litman [00:30:12] Like one accountant says to the other, he's saying, we've got to value it at such and such.
John Gleeson [00:30:17] There you go. To the extent possible, you want to do this by physical records, paperwork.
Harry Litman [00:30:23] All right. Well, this one, I think, could really prove to be a sort of historic donnybrook if they bring it, which I wouldn't think would be for many months.
It's now time to take a moment for our Sidebar feature, which explains some of the issues and relationships that are prominent in the news. Our Sidebar reader today is particularly appropriate. It is Mimi Rocah, the district attorney of Westchester County. Not only is Mimi an experienced prosecutor in the state and federal systems, she is a former clerk to Judge Gleason. So take it away, Mimi Rocah.
Mimi Rocah [00:31:05] The George Floyd Justice and Policing Act lays out a comprehensive and bold approach to changes in the culture of law enforcement that will help ensure law enforcement integrity and limit excessive force at the hands of police. Passage of the legislation will make communities safer, by increasing public confidence in the fairness of law enforcement. I'm Mimi Rocah, a former federal prosecutor and now the district attorney of Westchester County, New York, where I work with my law enforcement partners to achieve these goals at the local level.
Some of the highlights of the George Floyd Justice and Policing Act are as follows: the legislation would establish a national standard for operation of police departments. It would mandate data collection regarding police encounters, with increased support for community based policing. It would streamline federal laws relating to the prosecution of the use of excessive force by police. It would work to end racial and religious profiling by police. It would ban chokeholds and no knock warrants. It would limit the transfer of military grade equipment to law enforcement agencies. It would require the use of body cameras. It would change standards for prosecuting police misconduct at the federal level to increase accountability.
It would create new tools to investigate police misconduct. It would support critical community based programs to help change the culture of law enforcement and set forth new training requirements that focus on best practices techniques that are aimed at building trust and positive relationships with the community. Law enforcement cannot do its job effectively if it does not have the public's trust. This legislation is one giant step toward building that trust. It is supported by President Biden and passed the House on Wednesday, March 3rd. For Talking Feds, I'm Mimi Rocah.
Harry Litman [00:33:04] Thanks, Mimi, for that explanation.
All right, we've got one little case left to talk about, and that is the federal investigation now getting pretty thick of the January 6th events. Some three hundred people have been charged. Just Friday, Eric Swalwell brought a large civil suit against not just Donald Trump, but also Trump Jr., Rudy Giuliani. So it seems to me I've been saying this for a while, you know, it's not necessarily a welcome piece of news for Merrick Garland, but as a matter of fairness, there's just no way to really do a comprehensive, aggressive job against all the insurrectionists and low lifes without looking at the possible culpability of Trump. So this is really way in the distance, but we can see it. We can see the form it might perhaps take. Anyway, can somebody kind of give us the basics of how it might develop or what it would look like if it began to be a case that targeted the former president?
Andrew Weissmann [00:34:14] So I think the place to start on this, since all of us know what happened on January 6th, and we followed the news about all of these individual cases is really Merrick Garland's confirmation hearing where he has a lot of domestic terrorism experience. And he focused in on the issue of where did this come from and how did it start and where is it going? And so, like it or not, meaning he may have thought that he could keep his head down and hope that Georgia and Manhattan took the lead on the former president in terms of a criminal investigation. But this is one where it's impossible to ignore the issue of whether there was any sort of coordination. Whether that came from Trump, whether it came from Roger Stone or other people, that is going to be a hard one to avoid.
And there then is the slippery slope, because we're thinking of this as, OK, now, this is a federal investigation with main justice looking at this possibility. But does it open the door to other issues? So John alluded to federal election fraud claim that can arise out of Georgia, they could arise out of issues that the president could have from pressuring other people. There are lots of reports, not just of the Georgia U.S. attorney, but people at Main Justice who were pressured. Is that going to become a focus?
And then something, of course, dear to my heart is the question of obstruction of justice of the special counsel investigation, which although it seems like old news, is something that could not be charged under department policy while President Trump was President Trump. But that is something that can be looked at now that he is no longer in office. And that also has slightly different legal parameters than in our discussion of the Georgia case, because the president there can't say, 'well, I just thought the investigation shouldn't have been brought and that's why I obstructed it.' So his belief in our investigation that whether it was a witch hunt or not, is going to be more motive proof than it is a defense. So I think this is one where I think it's going to be a very difficult hot potato on Merrick Garland's desk.
Harry Litman [00:36:47] Yeah, so this is a really good point. And the obstruction, I think probably if he had left office with those few crimes trailing behind him, the kind of sense that had been developing was you could let it go. But as you say, there's just no way fairly to really go hard at the whole January 6th situation without at least giving them a hard look. All right. Let me start there, this is probably reminiscent of things that happened with Gotti and Gigante. He obviously inserts opportunistically a couple phrases in his January 6th speech that he'll point to a lot, or his defenders will — I'm thinking you guys are thinking also that we don't see Trump testifying here. They will make a point of, 'hey, I said let's demonstrate peacefully.' You know, he did that once or twice, just as mob guys will often have on the wiretap a few things about, you know, they just want to make sure the olive oil is pure or whatever. How do you go about dealing and especially in a beyond a reasonable doubt situation with little snippets like that that viewed in isolation make him sound like not a criminal?
Andrew Weissmann [00:38:02] Yeah, I think you grab that statement and you use it for all it's worth, which is it shows that he knew exactly the line, and he really crossed it. Because if he really meant what he said, he would have said it over and over again. He would — his reaction to what happened would be the key proof that he did not intend it. So if you are going to pursue this, I think you would want to know chapter and verse about exactly what he was doing on January 6th as the Capitol was being attacked because that will really put the lie to any defense claim that that statement was meant to be taken literally.
Harry Litman [00:38:43] And he's surrounded by many people on the afternoon of the 6th when this is the most telling detail of all to me, when he's not only delighted, but he's surprised that other people aren't. But what are you going to do? I mean, some of them are his closest buddies, but others are just kind of around at the party. Do you call them and put them in the grand jury? Do you have the bureau interview them and put that agent in the grand jury? How do you proceed to make that case?
Andrew Weissmann [00:39:11] Well, in the hypothetical that there's a green light by Merrick Garland to do this...
Harry Litman [00:39:15] A green light to investigate, right? I think he has to give a green light to investigate. But you're not sure?
Andrew Weissmann [00:39:22] I think you could take this in stages before you got to that point, because you could start with trying to figure out whether there was, what you get from the individuals who you could try to flip at the low level, and see was there any sort of coordination.
Harry Litman [00:39:39] You're talking about the insurrectionists, the low level people?
Andrew Weissmann [00:39:41] Yeah, obviously, you don't actually need that if you had a really strong indictment case. So you could start at the top. But, yeah, you use all the tools that you normally have, which is the FBI can interview people in certain situations, decide that's not appropriate and better just put the person in the grand jury, and you use those tools. Unlike the state system, you can put people on the grand jury without conferring immunity on them. You might have to if they take the fifth, but yeah, you play that all out in terms of all the witnesses who were around the president that day to get a picture of what he was saying and doing. Because his inaction is going to be, I think, really strong proof as to what he was intending prior to the 6th.
Harry Litman [00:40:29] Others, so the charges here, if he's culpable, it looks to me like it's seditious conspiracy, a 20 year offense or maybe rebellion or insurrection, which is 10. I mean, do we need some kind of lesser included offense here so it's not as if the DOJ is taking it upon itself to make sure that the former president dies in prison? You see what I'm saying?
John Gleeson [00:40:57] I see what you're saying, and you'll forgive me for not directly answering that particular question. But let me suggest that in addition to what we've been talking about, which is how you would take steps during an investigation to build a case, I'm going to suggest that it's possible, based on what we already know, for a reasonable prosecutor to conclude, A, that he's guilty of the offenses you mentioned, putting aside lesser includeds, and B, that there's proof beyond a reasonable doubt. There's proof from which a rational juror can conclude beyond a reasonable doubt he committed them. And I think an important question, you know, prosecutors don't bring every case they can bring.
Harry Litman [00:41:35] Right.
John Gleeson [00:41:36] They don't bring every case when those two things are true. So the question is whether you should bring the case, separate and apart from what you do to build it and how you prosecute it. And I think that's a really hard question for Merrick Garland, is where do you draw the line as to when you exercise your executive branch discretion?
Harry Litman [00:41:56] I think this is a good end point. I'd like to hear everyone's thoughts on this, you often, of course, exercise prosecutorial discretion, but typically because the harm is not so large or maybe someone's cooperating. We have a very unusual, even singular set of circumstances here, which is Merrick Garland knows and the line prosecutor knows that you bring this case, it's going to roil the country and inflame domestic terrorists. I don't see a spot for that in the principles of federal prosecution, yet it seems odd to just close your eyes to it. What role, if any, does that kind of special factor play? And does it differ for a blind prosecutor and a Merrick Garland?
John Gleeson [00:42:44] I'll yield to my colleagues in a minute, but let me suggest this. That kind of hydraulic pressure that those consequences you described, Harry, can place on a prosecutor could influence those intermediate steps, the determination whether or not they can prove guilt beyond a reasonable doubt, whether or not they believe guilt sufficiently to bring the case. So it's not, I don't think it's as cut and dried as you suggest.
Harry Litman [00:43:11] Should it be? Should it influence the intermediate steps? Or are you just saying it does as a matter of human nature?
John Gleeson [00:43:16] It does, and we have to recognize that. I remember vividly when those riots were happening, Rodney King got charged federally immediately notwithstanding the petit policy to quell riots in L.A. So I think concerns like this operate at a human level and there's no avoiding that topic and those considerations.
Cynthia Alksne [00:43:39] It seems to me that the pressure is on not to prosecute on some level, because Biden has made it very clear that he wants to put Trump in the rearview mirror. And unless some investigation brings up real coordination, either with getting people to D.C. or paying for them to come to D.C. or if, for example, the White House photographer has pictures of Trump jumping up and down with joy as it was happening or somehow in the Defense Department, it becomes clear that Trump intervened personally and made sure that the National Guard was not there. There is incredible political pressure on Garland and whoever is the United States attorney in D.C. to not do the prosecution because Biden does not want his presidency to be about Trump.
Harry Litman [00:44:24] And is it their job, though, to filter that out or do you think it's OK to consider?
Cynthia Alksne [00:44:28] I think the president has some right to determine his presidency. It's obviously a very serious discussion, and Merrick Garland is a good person to do it because he's principled and he has integrity and he's cautious and he's also not afraid. So to me, the right people are in the jobs to make the decisions. I'm convinced that Biden does not want the prosecution, and I think that makes a big difference.
Jen Rodgers [00:44:53] I think Cynthia is right there, and I also think that Biden chose Merrick Garland in part because he wanted him to make that decision. I mean, he chose a known moderate who is just so reputed for fairness and being right down the middle of the road. I mean, I think one of the most attractive things about Merrick Garland to President Biden was this notion that he would think very, very carefully before taking that sort of step. I agree with Cynthia that President Biden doesn't want this prosecution probably. And I think he chose Merrick Garland, hoping that he might decide that it shouldn't go forward. I do think that Garland can and should consider broader consequences of litigation. I mean, I think a prosecutor should think about those things or can think about those things. And I don't know what the right answer is as to whether to do it or not. But I mean, I do agree that Biden probably chose Merrick Garland because he thought he would be least likely to go forward.
Andrew Weissmann [00:45:53] So I come at it from a slightly different perspective. I don't think this is an easy call, but I start with the president is not supposed to be above the law. And if he broke the law and the crime would otherwise be prosecuted by anyone else against anyone else who did this, then there's a really strong argument for going forward. So with respect to the Manhattan charges, assuming that could be proved beyond a reasonable doubt, and it's tax crime, bank fraud, insurance fraud, the fact that the president committed those before he was president should not result in his being immunized just because he became the president.
And by the same token, I actually think from a presidential point of view, I think it is really troublesome to have no consequences for obstructing a special counsel investigation, because if that's the precedent that you can do that and you cannot be charged while you're in office, and then de facto, once you're out of office, we should all move on. Then all of the talk right now about how should the special counsel rules be changed is for naught, because I don't know why you bother having a special counsel going forward.
Harry Litman [00:47:10] All right. So there you have it. I think the spectrum of opinion demonstrates this is an incredibly rich and nuanced question with huge real world consequences for Biden and Merrick Garland. All right. We're out of time, we just have a couple minutes, maybe just one for our Five Words or Fewer feature. The question today comes from Tori Abramson, who asks following up on this discussion, if there were to wind up having charges against Trump based on the January 6th event, when would they be? Five Words or Fewer, anybody? Well, everybody but anybody first.
Andrew Weissmann [00:47:54] I'd say: when hell freezes over.
Cynthia Alksne [00:47:56] Biden against a federal prosecution.
Jen Rodgers [00:47:58] End of 2021.
John Gleeson [00:47:59] Not in our lifetimes.
Harry Litman [00:48:01] And I'll say: 18 months, more reason to decline.
Thank you very much to Andrew, Cynthia, Jan and Judge John Gleeson, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod , to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. And these aren't outtakes or ad-free episodes that we do have them there, but original one on one discussions with national experts. Just in the last few days, we've posted discussions with Larry Tribe about the impeachment clause, Natasha Bertrand, about the sanctions against Russia for the poisoning of Navalny and Jessica Levinson, about the oral argument in the voting rights case in the Supreme Court.
So there's really a wealth of great stuff there, you can go look at it to see what we have and then decide if you would like to subscribe. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer or general questions about the workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Additional research by Abbie Meyer. Our consulting producer is Andrea Carla Michaels. Thanks very much to Westchester District Attorney Mimi Rocah. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
Andrew Weissmann [00:50:42] So I keep talking, and this is going through my Airpods, and... does it sound any better or just as bad?
Producer JB [00:50:50] Uh...
Cynthia Alksne [00:50:50] Is it any chance you're in a submarine?
Harry Litman [00:50:57] The winter of our discontent...
John Gleeson [00:51:00] He's standing under the 7 train in Jackson Heights.
