Looking Ahead on Trump's Arraignment

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. A shout-out to the hyperlocal paper, The Queen's Daily Eagle, which had maybe the best headline about the local news story of the day. It just said, "Queen's Man Indicted." In a way, this should be a very ordinary, very ho-hum, very Queen's man indicted little case. Another rich businessman allegedly covering up his real finances to hide something sleazy or illegal that he did happens all the time.

Manhattan DA Alvin Bragg has charged falsifying business records 117 times since he took office last year, according to The New York Times. It's a small crime in the scheme of things. It's not, say, murder. It's not, say, obstructing justice to high classified documents, who would do that? Or trying to foment to take over the United States government through violence or fraud. Those charges, those last couple, and those conversations may be to come.

This is expected to be something more like Queen's man indicted, but the Queen's man is Donald Trump. It's another opportunity for what John Bolton has called performance art, which is how Bolton, Trump's former national security adviser, described Trump's approach to public life on MSNBC back in December. Just performance art. Very different from the idea that the Republican Party has turned into a Donald Trump movement.

John Bolton: I think that this whole idea that there's a Trump movement out there is simply wrong.

Brian Lehrer: Bolton may be simply right because judging by the size of the crowds that have stayed away in droves from Trump's calls for massive protests today, the problem for Trump so far on his current performance art stage is that in addition to becoming a criminal defendant, the audience seems to be small. April 4th is so far not becoming January 6th. That, arguably, is the only really important question to be answered today. Queen's man indicted on a relatively small set of charges for doing what a lot of rich businessmen and some politicians do, but will this indictment be the spark for more pro-Trump domestic terrorism by a mob or by a lone radical?

Obviously, the WNYC news team has its eyes and ears on the city and will bring you anything you need to know, which is so far not much. With us now, Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote fellow for Creative Writing and Law at Yale Law School, and author of the book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Thanks for joining us, Emily, on a Queen's man indicted morning. Welcome back to WNYC.

Emily Bazelon: Thanks so much for having me, Brian.

Brian Lehrer: With your Yale Law School hat on first, do you have a sense yet of what will make up the reported 30 or so different charges that are said to be coming down today?

Emily Bazelon: I wish that I knew the answer to that. I feel like we're all so ready to read this indictment already. The reporting suggests that this is a set of accusations about the hush money payments that Trump paid for to Stormy Daniels before the election. If the reporting bears out, the charges will be a combination of charges about business fraud, the idea of falsifying records, and then tying that kind of fraud to trying to influence the election results, which would take a set of misdemeanor charges up to a felony.

Brian Lehrer: 30 charges, potentially because each individual payment to Michael Cohen under the fraudulent bookkeeping premise is a separate charge. There were a series of those payments rather than 30 different crimes. How do you think they get to 30 if that reporting is accurate?

Emily Bazelon: If the reporting is accurate, then yes, the way you framed it sounds like it's probably likely to bear out. I think there's also this question of whether there's more to this indictment than the reporting so far shows, whether there are additional charges we don't know about. That's possible, but until we read the indictment, we are in the dark.

Brian Lehrer: The Wall Street Journal and The Daily Beast, among others, are reporting that the 2015 campaign scheme to cover up another alleged Trump affair with who's referred to as former playmate Karen McDougal before they paid off Stormy Daniels might be a legal key to winning a felony conviction against Trump, even though the McDougal case isn't getting as much media chatter. Do you understand why that might be?

Emily Bazelon: This whole question of whether there was a catch and kill scheme in place with the National Enquirer to stop the Stormy Daniels' account from getting out, I think that also relates back to the Karen McDougal story. If they could show a pattern from this earlier time, then that might help prove that aspect of the Stormy Daniels case and that could be helpful for showing that Trump was paying her off to influence the election results.

Brian Lehrer: Catch and kill in the context of the election campaign. I guess if that's proven, that would negate something that came up on yesterday's show, which is a John Edwards defense. The way John Edwards avoided conviction for his hush money cover-up to a mistress when he was running for president, he said he did it not to benefit his campaign, but to hide the affair from his wife, which is not going to get him into heaven, but it's not a campaign finance violation. Establishing Trump's political intent to deceive the public, that is, not just Melania is why we might hear the Karen McDougal story in court?

Emily Bazelon: Yes, I think that's right. I think you're putting your finger on the key issue here. Assuming that we're right about what this indictment is about, the key issue is whether the prosecutors can prove that Trump knew that he was trying to illegally influence the election. One helpful fact in the Trump case that was not true in the John Edwards case is that the prosecutors this time around have Trump's lawyer and fixer Michael Cohen as their chief witness.

In the John Edwards case, the people around Edwards said he didn't know that this was illegal and that was helpful to him. The jury acquitted him on one charge and deadlocked on the other five charges. This time around, we have Michael Cohen front and center, constantly going on television to talk about Trump's wrongdoing in his eyes and clearly willing to testify against Trump. Of course, Cohen is also a convicted felon on these same set of charges. If this case ever got to a jury, all of those things would very much come into play.

Brian Lehrer: Talk about Michael Cohen a little more, because on the one hand, he's a convicted felon on related charges, as you say. I think wasn't perjury one of his charges? Is he a convicted liar?

Emily Bazelon: Oh, I'm trying to remember exactly what he was convicted for. Let's look that up.

Brian Lehrer: Anyway, there are people trying to use that against him. In any case, he's a convicted felon, so he's got reputational questions. On the other hand, he was convicted of being the recipient of the money on these false premises that Donald Trump admits that he was the payer of. That makes it sound like a slam dunk case based on what the Justice Department has already proven against Michael Cohen. What am I missing?

Emily Bazelon: Cohen actually pled guilty to tax evasion and campaign finance violations. Not perjury, just to be clear about that. The broader point you're making is that the federal prosecutors already went after Cohen for being the agent in this alleged scheme in which Donald Trump is the principal. I think what you're getting at here is it's odd to say, "Okay, Michael Cohen is going down for this, but the person he was doing it for would not."

It is, though, important to mention that the federal prosecutors who pursued Cohen did not pick up these federal charges or any charges against Donald Trump. Now, at the time Trump was president, he couldn't be indicted as a sitting president, but they didn't bring these charges against Trump afterwards either. That's why it's fallen to the-- Now the Manhattan DA, who obviously works for the state, not the federal government, is bringing the charges.

I think that could cut both ways. You can say, "Why isn't the Justice Department pursuing this?" It's good that we have state sovereignty so Alvin Bragg, the DA in Manhattan can step in instead, or you can say, "Why is this Manhattan DA going out on this limb when the Department of justice didn't think there was enough here, or for whatever reason, decided not to charge Trump?"

Brian Lehrer: What do you think might be the answer to that second question?

Emily Bazelon: [laughs] If you're the Justice Department, you are looking at a range of different potential avenues of criminal liability for Donald Trump. You started out the show by bringing them up. The documents, the classified documents squirreled away at Mar-a-Lago. There's the question of whether he is responsible criminally for the January 6th insurrection at the Capitol. Separately from that, there are the potential charges for trying to overturn the election results in Georgia. That's state, not federal. If you're DOJ and you'relooking at this range, this hush money payment is Stormy Daniels might seem like small potatoes not worth it. Prosecutors generally have a lot of discretion and they balance which of the charges they think are important or easiest to prove or that they want to pursue, and they did not go here. Maybe it's because they think the other things are more important.

Brian Lehrer: Listeners, your legal or other arraignment day questions for Emily Bazelon from The New York Times Magazine and Yale Law School, and The Slate Political Gap Fest. Welcome here. 212-433 WNYC, 212-433-9692. Let me play a couple of clips Emily of William Barr, Trump's former Attorney General, on Fox News Sunday this weekend defending Trump in the case that people think will be brought and get your take. Here's a one-line critique on the argument that the charges are politically motivated.

William Barr: It's the very essence of the abuse of the prosecuted function which is pursuing a person rather than pursuing a real crime.

Brian Lehrer: Pursuing a person rather than finding a crime and figuring out who did it. Is that a defense Trump can use in court?

Emily Bazelon: No. I don't think so. It's a clever way to phrase what's going on here, but let's imagine that Alvin Bragg is operating in good faith, just give him that in the way we would for any public official. He's sitting here, there have been all this investigation by his office into Donald Trump, and here are these checks that Trump signed, and here is this conviction for campaign finance violations for Michael Cohen that we were just talking about, and the connection is obvious.

It seems like he made a decision that when someone's illegal conduct is staring you in the face and you have the evidence for it, you don't not bring the charges, because this person used to be president. I mean, there's a way in which by the rule of law nobody is above the law that that set of reasoning leads you to these charges. The idea that he's politically pursuing Trump, maybe he was reluctant because of Trump's role but just felt like, "Okay, this evidence is staring me in the face. This is my job."

Brian Lehrer: One more, and this one Barr criticizes the idea of a falsifying records charge and a campaign finance charge.

William Barr: They're saying he falsified the corporate record, but for that to even be a misdemeanor, you have to be trying to defraud somebody. It's unclear exactly who was defrauded. This is his own company. Then finally, and most importantly from the federal standpoint, the idea that this was a campaign finance violation is simply wrong. It's wrong on the law.

Brian Lehrer: That was on Fox News Sunday, and they didn't pursue why he thought the campaign finance violation charge, if that's what comes, would be wrong on the law. I don't know if you know what his argument is there. On the falsifying records Barr claims, well, he wasn't trying to deceive anyone. This was all happening in his own company.

Emily Bazelon: Yes. I think what he might be getting at there is that the classic charge of this kind is like you falsify checks so that you can steal stuff from Bloomingdale's or whatever. That you're falsifying the records in order to take something from someone else. That's not exactly what happened here. In terms of why the campaign finance violation is wrong on the law, I read The New York Statutes, they seem like they apply.

They're not the most clearly worded statutes I've ever read in my life, but I can see why Bragg is making this connection, and it's pretty broad brush to say it's simply wrong on the law. What lots of people have been saying is that this is a novel legal theory. What they mean by that is they're putting these two charges together, the business fraud violations and the influencing the election. That's something that it seems like has not really been tried by a New York prosecutor before.

Brian Lehrer: Let me ask you to put on your Political Gabfest hat. Put your law school hat aside for a moment. Don't put it in the closet though, Emily, because you're going to need it again in a few minutes, but your political analyst, Political Gabfest on the question of whether April 4th will go down in history like January 6th. So far no, despite Trump trying to make it so. Why do you think not?

Emily Bazelon: Yes, it's really interesting. Maybe January 6th and all the prosecutions since then have actually had the effect of deterring people from showing up and committing violence in some way where they could be prosecuted. The consequences so far for Donald Trump have been zero to minimal, but lots of people are being prosecuted and going to prison for those events, so maybe the groups that plan those events are not so eager to have a second run.

I also think that Trump can succeed politically even if there isn't some huge upswell of mayhem in New York today, because he's playing the grievance card really successfully, and he does very well and he gets attention and this whole prosecution puts people running against him for president like Ron DeSantis in this awkward position of having to defend him. In terms of the Republican primary, I think this could still benefit Trump at least in the short run.

Brian Lehrer: Yes. I tend to disagree with John Bolton in the clip we played where he said there's no Trump movement in America, because he has no philosophy, he's just doing performance art. I think there's a big Trump movement that does have a philosophy of nativism primarily and white supremacy at large in its core which Trump does seem to genuinely believe in and more troubling so does a large minority of the American public. I'm curious how much you would agree or disagree with that as someone who does a political analysis podcast every week.

Emily Bazelon: I think of course you're right, and this is wishful thinking by John Bolton. He represents a wing of the Republican party which has no power, and he wants to imagine that we're still living in a past era of a different kind of cut taxes, country club, buttoned-down Republican. Absolutely, we have lots of political evidence that Trump represents a movement. Whether it's enough for him to win the Republican primary that's harder to say, because DeSantis or other candidates may be able to capture parts of it and convince Republican voters that they are going to carry this movement forward without all of Trump's baggage, but the idea that it exists and that it's really galvanizing to a lot of people I think we know that.

Brian Lehrer: Which is another reason why I think the coverage of Trump's indictment and arraignment often misses the point. Yes, it's historic for a former president to be held accountable for an alleged crime for the first time. Yes, it's a spectacle and a legal battle that needs to be covered, but it's not the central issue. The central issue for me is that frighteningly large percentage of the American people and whether they'll keep nominating presidential candidates who want to turn us into an authoritarian strong man form of government as Trump was beginning to try to do.

Do you think if Trump even goes down in flames that that impulse is going to fade? I mean a pretty honorable Mitt Romney, a pretty honorable John McCain couldn't get elected. They couldn't bring out enough of the Republican vote. Donald Trump brought out that vote, and Donald Trump brought out the terrorists because they were all there waiting for a Republican leader who actually represented them. Is that too dark an analysis for you?

Emily Bazelon: I wish that I thought it was too much of an analysis. Again, we have pretty strong evidence for this. It is also important I think to remember that there are lots of people in the country who feel like they are losing out. I mean many of them white people, many of them living in de-industrialized cities or rural areas where they're just aren't jobs and opportunities, where there's a lot of opioid addiction. There's just a kind of like sense of malaise and loss of hope and loss of hegemony to use a big, fancy word, that I think is affecting people.

Democrats have failed to reach a lot of those voters, and Trump represents alternative to them in a way of feeling more powerful and having a response to a world and a country which they don't identify with. That is a way of thinking about the voters that is more sympathetic to them, and I think it's important to remember that, especially if you live in a part of the country like New York, or I live in New Haven where I'm not surrounded by people who have all of those feelings, but they really matter in the American electorate.

Brian Lehrer: Eddie in Tom's River, you're on WNYC. Hi, Eddie.

Eddie: Hi. I was watching the whole fiasco on television and narrated what he was talking about, how the media was covering it. I don't understand how the city did that, to close down all the traffic in the city for disgraced, twice impeached former ex-president. I worked in the entertainment industry in my whole life. I've seen former I've seen former presidents, they don't get that kind of treatment. Think of all the people that got caught in traffic jams. I just couldn't believe that. They shut down the Grand Central Parkway, the Triborough Bridge, the FDR. This man could come and spend his night in his tower. Really, it was repulsive.

Brian Lehrer: Right during rush hour. Eddie, thank you. Did you watch any of that on TV yesterday, Emily? I did and it was pretty shocking. Obviously, you have to have major league security for Trump in a way that maybe you don't have to for any other former president who's just going to do a more routine thing, but there was a motorcade of I don't know how many cars. Why did they need that?

Emily Bazelon: I guess they're in better safe than sorry mode. During January 6th, we all thought, "My God, why aren't the Capitol Police more prepared for this? Why haven't they locked down the capital? What is happening? Maybe if you're the NYPD or whoever is making these decisions today, you think, "I'm just not going to be those people."

Brian Lehrer: I guess so. I guess so. Let's take another call. Michelle in Monmouth County, you're on WNYC. Hi, Michelle.

Michelle: Hi, Brian Lehrer. I want to make a call about the case against Trump. I personally think that Alvin Bragg is doing his job in bringing justice to a former president who committed, among many crimes, fraud, inflating his wealth to avoid taxes, which was mentioned before. I forget the one woman, the Manhattan District Judge but among them, to inflate the wealth of Trump Tower, Mar-a-Lago.

Also, of course, with the capitol riot, I saw in firsthand, I was shocked. I don't think he should be outside of jail. He should belong in prison for all the crimes that he did and for all the trauma he's caused to the working class, all the lies he spread. I understand that the working class are upset. White working-class people feel like they've been cheated by the political system, but this doesn't mean we should be listening to a con artist.

Brian Lehrer: Michelle, thank you very much. The whole debate over DA Bragg, obviously Trump is trying to make Bragg the issue. Not the first defendant in history to try to make the DA the issue, but it's a sideshow. It exists in the political sector but legally it doesn't mean anything. I think it's a temptation that we in the media can't fall into a trap of too much, debate DA Bragg. He's the DA, he's bringing charges. The charges might stick, the charges might not stick like in the case of John Edwards, but to spend a lot of time debating whether DA Bragg is political, I don't know, falls into a trap it seems to me.

Emily Bazelon: I hear you. It's why I wanted to take his decisions to assume that they're in good faith until we have evidence otherwise. Obviously, he's a Democratic official and a heavily Democratic city. At the same time, if this blows up on him and there are missteps, it's enormously going to affect his profile. He has a lot on the line here and it's all clear that there necessarily will be a political benefit to him at the end of the day.

Brian Lehrer: Emily, put your law school hat back on because after this break, I'm going to ask you if Trump, as reality show host, is likely to be voted off the island, Manhattan Island, and voted onto another island, Rikers. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with your calls on Arraignment Day in New York City and with Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's Political Gabfest Podcast, Truman Capote fellow for Creative Writing and Law at Yale Law School and author of the book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.

As I said before the break, people like to say Trump is at heart a reality show host, but this time it's he who might get voted off the island. That's a cable news take I've seen. Voted off by a jury is the important point there. I guess we could say he might get voted off Manhattan Island and voted on to Rikers Island. My question is, can you imagine an actual jail or prison sentence coming from the things that you think he'll be charged with today?

Emily Bazelon: My God, this is a tough one. I thought about it on the break. It's possible. They're going to bring charges that he would be facing jail or prison time for. He will not be going to jail pre-trial unless something really wild happens. That's because of bail reform in New York, which is interesting since Trump is someone who is railed against bail reform. Could he be convicted and go to prison? Sure. If there's actually a trial and he's convicted and then a judge is looking at multiple felony counts, then a judge could make that decision in this case.

Somehow, it just seems a little implausible. It's hard to think of it in isolation from the other potential criminal charges Trump is facing. If this turns out to be the first chapter and there are federal charges pending or charges pending in Georgia, then this is all going to be part of a larger set of questions about criminal liability and then it would seem like if there were convictions down the line, you could imagine him going to prison. Whereas if it's just this, I don't know. I think it's going to seem thin.

Brian Lehrer: Trump's former chief financial advisor at the Trump Organization, Allen Weisselberg is on Rikers right now for Trump Org tax evasion. How different is what we're anticipating from that?

Emily Bazelon: On paper, it's not that different. If you're talking about felony convictions, and as we were discussing earlier, Michael Cohen also went to prison on these charges. White-collar defendants go to prison when they get convicted of things like fraud. That is a thing that happens. Yet we are still talking about a former president and we're talking about a hush money payment based on sex. That's just not something in the past that we have held former presidents criminally liable for, let alone demanded that they go to prison for.

Brian Lehrer: The hush money itself is legal. It's covering them up to create a campaign finance violation. That's the presumed more serious charge here. Has anybody ever gone to prison for a campaign finance violation or a campaign finance violation of this size which is actually relatively small at $150,000 or is it just a fine?

Emily Bazelon: Yes. I think often it is just a fine. I'm sure people have gone to prison for campaign finance violations, but you're right, the dollar amount is relatively low. The circumstances, while I think they could still be serious, the notion that you couldn't have some plea bargain settlement that would be a liability other than jail or prison. That seems like it could be very likely.

Brian Lehrer: You released the important book in 2019 called Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. I'm curious if you think there's a progressive prosecutor approach to the crimes we expect Trump to be charged with, one could argue as a non-violent crime, it shouldn't be subject to bail upon indictment, especially since Trump is not a flight risk, we presume. Everybody knows who he is, everybody always knows where he is it, but Alvin Bragg as a progressive prosecutor. Is there a progressive prosecutor narrative here?

Emily Bazelon: For sure bail reform is something that progressive prosecutors have supported, including Alvin Bragg. His own policies would preclude a defendant like Trump from going to jail so yes. I think that part of the story is related to Bragg's stance on incarceration. This is nonviolent and so for all those reasons, it seems like it lines up.

Brian Lehrer: Tony in Brooklyn pushing back on a number of things that he's hearing. Tony, you're on WNYC. Hi, there. Thanks for calling in.

Tony: Hey. Thanks a lot for having me. I appreciate it. There's a different point of view. There's half the country that thinks that this is the weaponization of the DOJ. There's half the country that didn't appreciate Biden demonizing anyone that considers himself a patriot. Now you have this stage. We've been here before. We've impeached him for ridiculous reasons. He always gets away with it in their view but in the view of half the country, we're literally witnessing the destruction of the American way of life when you don't have justice.

You understand that as a combat veteran that's been overseas and served in these countries, I assure you what happens is you have people that want to maintain power, and they control the media. That's what's happening. You literally have the deep state that controls the narrative, and there's people like Tucker Carlson and others that speak to the other half of the country. Brian, I just want to thank you for allowing a person that has always, with his family, aligned with democratic values [unintelligible 00:30:34] strong Republican. That's because we see the destruction of America. Thank you for the [unintelligible 00:30:39] I really appreciate it, sir.

Brian Lehrer: Tony, thank you very much. Call us again. Actually, Tony, are you still there?

Tony: I will.

Brian Lehrer: Let me ask you a question. The deep state narrative, the idea that there's some shadowy cabal that controls private news organizations like the major networks, or us, or [unintelligible 00:31:07], it strikes the other half of the country as wacko. Where does that deep-state theory even come from? Oh, he's gone. Now, he's gone. He didn't hang up on me. He heard me say that we were done in the first place. Emily, it's interesting, right?

Emily Bazelon: Oh, absolutely.

Brian Lehrer: He's right about there are a lot of people who do think this is political. I guess if the shoe was on the other foot, what if it was a Republican prosecutor in, I don't know, Mississippi, where maybe Joe Biden got 12 % of the vote? Going after Biden for something that plausibly is a crime after Biden leaves office, wouldn't the Democrats be saying the same thing?

Emily Bazelon: For sure, they would. A real danger here is that we've broken the seal on prosecuting former presidents. Now, on both sides, there's going to be open season, and behavior that might be up at the edge of the law but doesn't seem really worth the resources to pursue will be pursued. There will be Republican district attorneys who go after Joe Biden when he's no longer in office, that there will be a tit-for-tat about this that is going to reverberate the despair of the country.

That's a slippery slope prediction. It's not necessarily going to happen. The fact that these charges on their face are not persuasive to the vast majority of the country, not that whether Trump did it or not, but whether this is a good idea, whether this is worthwhile. The division over that really opens up the door to future kinds of prosecutions that feed the political desires of one side or the other as opposed to seeming truly necessary.

Brian Lehrer: You keep going back and forth, needing your political analysis hat and your law school hat. I have a hat that's a collectible from the 2,000 World Series, which was the Subway Series, Yankees versus Mets. It has the Yankees NY on one side and the Mets NY on the other side. You need a hat like that for political analysts and legal analysts with maybe an interlocking EB for Emily Bazelon. Greg in Coldspring has a legal analyst question for you. Hi, Greg.

Greg: Hey, how are you doing? I was just curious. Are they going to hit Trump with a gag order over all this?

Brian Lehrer: Good question. Here's another tough one, Emily. I was thinking about this last night. On the one hand, you don't want to limit somebody's free speech to criticize a prosecution against him. On the other hand, Trump has been making these threats online for death and destruction, and that photo of him holding a baseball bat to Alvin Bragg's head.

Emily Bazelon: Right. I think that a judge who issued a gag order would be really tempting Trump to violate it. Then you'd have to deal with Trump being in contempt, and that's like a whole can of worms. I'm not sure a judge is really going to want to go in that direction. On the other hand, it is for sure that Trump is going to be disparaging Bragg that there is going to be a whole set of angry, ugly discussion around that. That's unfortunately just, I think, going to be part of the process. I'm not really sure. Judges in other cases involving Trump, they have also found themselves at the other end of his social media posts. I think that's just going to be the cost of the justice system proceeding in this case.

Brian Lehrer: John in Yonkers, You're on WNYC. Hi, John.

John: Hi. My question is about the documents case. I'm curious. Emily, I love you. I listen to lots of podcasts. I have not heard anybody mention that Trump may have taken photocopies of the documents. That would be an obvious thing for him to do. I'm wondering if you have some thoughts on why maybe nobody seems to focus on that.

Emily Bazelon: That's interesting. I think that in all the searching and looking, they would also be looking and searching for copies, because copies would have the same classification rules attached to them. Obviously, this question of whether they have found everything, has everything been turned over, that still hovers around Mar-a-Lago. I would assume that that would include whatever copying Trump might have been doing. Also, that seems so organized, the idea that he was copying, as opposed to the idea that they just shoved a lot of things in a golf bag and trotted off with them.

Brian Lehrer: There is the Washington Post reporting over the last few days that's getting a lot of attention. I wonder if you've looked at it. I'm not sure that I could summarize it accurately, but that seems to add weight to the obstruction of justice suspicions regarding Trump in the classified documents case. I think evidence that he moved documents into hiding after he was subpoenaed to produce them.

Emily Bazelon: That reporting is very interesting, and I think it goes to why this document case could really have legs. Even former Attorney General William Barr likes the documents case against Trump of all the charges.

Brian Lehrer: He did say that on Fox News Sunday.

Emily Bazelon: Right. I think what's going on here is it's one thing to be like, "Oh, my bad. I accidentally took some things I wasn't supposed to have." It's another thing to be preventing the government from recovering those documents. The more evidence there is that that was happening after the government was making it really clear that they were trying to get everything back, the worse it is for Trump.

Brian Lehrer: News organizations ask for cameras in the courtroom for today because of the public interest and larger democracy overtones of this case. I see that the judge has made a ruling. Since I'm not seeing headlines that say, "There'll be cameras in the courtroom," I assume he said no. Did you have an opinion about cameras in the courtroom in general or today as being in the public interest or not in that respect? Have you seen which way he ruled?

Emily Bazelon: I am not sure which way he ruled. I generally think cameras in the courtyard are good because people should be able to see how the process works, and the reporter who spends time in court, particularly just regular old criminal court with lots of defendants no one's ever heard of. I think the more light we shine on that process, the better. Mostly because it's often just pitiful, and it would be good for people to understand how much regular people are at the mercy of it.

That's obviously not super relevant to Donald Trump. I don't think that if the normal rule is no cameras that it makes sense to have a special rule for Trump. The idea that you would single him out in that way because there's media interest, that makes me uncomfortable. I think generally, cameras are part of understanding how our system works, and it's too bad that we don't have that as a general norm.

Brian Lehrer: It would also give Trump another grievance to say that-

Emily Bazelon: Absolutely.

Brian Lehrer: -Trump, the judge is trying to humiliate me by showing me as a defendant, standing there in court. Here's the description of the ruling on that from the Daily News. "The ex-president's arraignment will not be televised. No TV cameras will be permitted inside the Manhattan courtroom for the historical arraignment." It says five pool photographers will be let inside the courtroom at 100 Centre Street, but video cameras will be confined to the hallways and reporters will be barred from bringing so much as laptops inside. I guess we're going to be depending on that old media form of sketch artists [laughs] and reporters coming outside and going on the phone to their news organizations. Oh, like us.

Emily Bazelon: Exactly. Yes, I think this happens a lot in court that there's a rule that  about bringing in sometimes even phones that judges try to prevent people from tweeting about proceedings as they're continuing. There's some sense that you should have to process the information before it becomes instantly live. Again, I think some of that is sort of a fool's errand of preventing modern technology from making media coverage happen faster. I think whatever the rules are, generally, the rules should stay the same for Donald Trump. Not different rules for him.

Brian Lehrer: I guess that report did say five pool photographers. Pool meaning that all the media get to share what they produce. Pool photographers, so maybe no sketch artists since this-- [crosstalk]

Emily Bazelon: Pool photographers exactly means everybody gets access to those pictures.

Brian Lehrer: Still photos will emerge. Last question. The arraignment is scheduled for two o'clock, then DA Bragg I see is scheduled to have a news conference at 3:30. What can the DA say publicly? We'll cover that live, by the way, listeners. What can he say that is okay for a DA to say in an ongoing case in which he's just brought charges?

Emily Bazelon: He can explain the indictment. One thing that has been not super skillful from the point of the DA's office I think is this gap in time between learning there is an indictment and understanding what is in it. There's been a lot of speculation. We've engaged in some of it. This is his chance to get to explain why he's bringing these particular charges, what the content of them is. That's his role here. He should stick to that.

Brian Lehrer: Emily, thanks a lot. We always appreciate it when you come on.

Emily Bazelon: Thanks so much for having me.

 

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