Explaining Trump's Major Indictments and More

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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. Happy Super Tuesday, if it is a happy Super Tuesday. It's a Happy Super Tuesday for Donald Trump and those who support him in Colorado, one of the 15 states voting today. You know that the news broke yesterday during yesterday's show, in fact, that the Supreme Court ruled nine to nothing that Colorado cannot remove Trump from the presidential ballot just because he caused an insurrection, that little thing that's covered in the insurrection clause of the Constitution.

Here's an aspect of that ruling that I think has been undercovered so far. None of the nine justices disputed the finding of the Colorado courts that Trump engaged in an insurrection. Maybe they just didn't need to take a position on that in order to come to their conclusion, or maybe their silence is more meaningful than that and suggests the strength of the January 6th related criminal charges against Trump. We have the perfect guests to answer that question and talk more broadly about the intersection of criminal accountability and the presidential election now. NYU law professors Melissa Murray and Andrew Weissmann, they have a new book called The Trump Indictments: The Historic Documents with Commentary.

It's exactly what the title says. The actual text of the four criminal indictments against Trump annotated with commentary. Those four indictments are in the federal election fraud case, the Jack Smith case, the Georgia election bullying case, fined 11,000 votes. Remember that? Plus the classified documents case, and from here in New York, the campaign finance fraud charges connected to the Stormy Daniels hush money.

Besides being an NYU law professor, Melissa Murray is co-host of the podcast Strict Scrutiny, and besides being an NYU law professor, Andrew Weissmann is co-host of the podcast called Prosecuting Donald Trump. You may remember, he was a lead prosecutor for Special Counsel Robert Mueller in the Russia investigation, and author of the related book Where Law Ends: Inside the Mueller Investigation. They're both also MSNBC contributors. Andrew and Melissa, great to have you both on again. Congratulations on the book, and welcome back to WNYC.

Melissa Murray: Thanks for having us, Brian.

Andrew Weissmann: Nice to be here.

Brian Lehrer: Andrew, can I first get your take on the nine-to-nothing Supreme Court ruling yesterday on the Colorado case, specifically the aspect that I brought up in the intro. I don't know if you heard it while you were getting seated, but that none of the justices from anywhere, left to right on the high court, took a position on whether Trump committed insurrection as the Colorado court system found that he did. What might their silence on that question mean?

Andrew Weissmann: I think their silence meant that they were just keeping their heads down. I think that if you look at Amy Coney Barrett's concurrence, the brief one-paragraph concurrence. She basically said the part out loud, which is, "This is political season. We don't want to get in the middle of this. How do we lower the volume?" I think that from the oral argument to the written decision, they really did not want to weigh in on that, but I do think it's important to note that that factual issue has not been challenged. Obviously, that would be an issue if the trials go forward, and it's obviously an issue for the electorate in deciding who to vote for and deciding whether-- Essentially, the electorate is the jury on that issue.

Brian Lehrer: Right. We'll talk about the book in general in a couple of minutes, but, Melissa, let's jump right off the Colorado case to one of the four indictments you transcribe and annotate in the book, the federal charges brought by Special Counsel Jack Smith. Trump isn't charged with insurrection exactly like he was judged on in Colorado. Can you remind us of what he is charged with and what the difference is between that and insurrection?

Melissa Murray: He's been charged with a number of crimes. One of them stems from the Sarbanes-Oxley Act, and that is the obstruction of an official proceeding. There is actually litigation going on right now that's pending at the Supreme Court to determine whether that particular statute was intended to apply in circumstances like those around January 6th. That case is pending with a different defendant, a sort of rank and file January 6th defendant. Depending on what the Supreme Court says there, we will know more about whether two of the charges that Jack Smith has filed against Donald Trump will continue to go forward.

The other charges here again are about a conspiracy to defraud the voters of the United States. That was actually, I think, a very significant charge, and one that had not only real legal effect, but actually symbolic effect. This is a statute that dates from just after the Civil War and was intended to be used to prosecute those in the south who were intent on keeping newly freed slaves from the ballot box and being fully incorporated into the polity as citizens. Again, very different charges from what we've seen in some of the other cases, but meaningful nonetheless.

Brian Lehrer: Andrew, how much of this indictment is about the January 6th riot at the Capitol itself, as opposed to the months-long effort by Trump and his allies to overthrow the election by pressuring states to abandon their electoral results, and pressuring Mike Pence and things like that?

Andrew Weissmann: The charges really conform to the facts as we saw them in the January 6th committee hearings. What happened actually on January 6th, which a lot of us shorthand the case as the January 6th indictment, that's really the culmination of the charge scheme, which involves all sorts of aspects. It involved what was happening in various states, including Georgia, where the infamous taped call with Brad Raffensperger. It involved pressuring the Department of Justice to say that there was fraud in the election. There was pressure on Mike Pence to not count the votes. There are all sorts of aspects, but the last-ditch effort was what happened on January 6th, which was to try and have the Congress not count these votes with a fake elector scheme.

There will be a whole panoply of things that happened between the date of the actual election. Actually, some evidence even before that, that this was always plan B for Donald Trump up through the time of the inauguration. You'll hear, I think, if this case ever goes forward, of course, we're in a state proceeding right now, waiting for the Supreme Court to decide this case, but if it goes forward, I think that would be the nature of the proof. The whole range, not just what happened on that specific day.

Brian Lehrer: Melissa, here's a question from a listener that they just wrote in on the prospect for potentially holding Trump accountable under the insurrection clause of the Constitution following yesterday's ruling. The question goes, "Please ask your guests what would happen if Trump were convicted after the election but before the inauguration."

Melissa Murray: I think what we saw yesterday in the Supreme Court's decision, you note that it was nine to zero. I will just add some gloss to that to say that it was nine to zero as to the judgment. There was a very strong dissent from the three liberal justices and a separate-- Well, actually, it was a concurrence, but it read like a dissent, and then a separate concurrence from Amy Coney Barrett both saying that five justices in the majority had gone too far to decide the question that Section 3 can only be operative with federal legislation.

That would mean that if Donald Trump was subsequently convicted after the election, it would require an act of Congress to then subsequently disqualify him under Section 3. The four justices in the minority made very clear that they did not think that that question had to be answered by the Supreme Court, that the Supreme Court could simply say that Colorado, as a state, could not disqualify a presidential candidate from its ballot, but it didn't need to go further.

You mentioned that no one mentioned the question of the insurrection or associated Donald Trump with the insurrection in those opinions yesterday, but I will note that in the concurrence from Justices Kagan, Sotomayor, and Jackson, they referred twice to an oath-breaking insurrectionist, which I think, in Supreme Court parlance, is about as close as you can come to actually identifying Donald Trump and associating him with the events of January 6th, and it was very sharp language indeed.

Brian Lehrer: To follow up, Melissa, if Congress does not have to actually pass a law, let's say, between a conviction and the inauguration, were there to be a conviction on the federal charges, what's the alternative? We know Congress won't pass a law because there are too many Republicans in the House that would never pass such a law, but what is the actual alternative that the dissenters on the court were suggesting could be employed?

Melissa Murray: I think they're suggesting that what the court has done, the five justices in the majority in that per curiam, have effectively made Section 3 a dead letter because it's clearly the case that Congress is not going to act to enforce the Section 3 of the 14th Amendment with enacting legislation. That means that if, in fact, he is convicted after the election, we're in this position where perhaps we have a president wearing an orange jumpsuit on January 20th.

Brian Lehrer: Which doesn't actually disqualify him under the law from being elected and even serving. That would be quite a situation. Andrew, you note in the introduction to the book that more than 1,100 people have been charged criminally in connection with January 6th, which you argue disproves Trump's claim that he's the victim of selective prosecution. Almost all those other people were physically involved in the riot at the Capitol, Trump was not, and he never explicitly suggested that they riot, just that they express their anger. Defenders of him would say lots of leaders of nonviolent protest movements do that. Can you really connect those dots?

Andrew Weissman: The answer is, I think, factual and legal at the same time. What we tried to do in the introduction to the book is really examine whether there are comparable cases that have been brought by the Department of Justice that would make it appropriate to have charged Donald Trump in the four cases. We examine the precedent for that, whether it's at the federal level or in the Georgia and New York cases at the state level. With respect to your specific question, one, I would note that not everyone who has been charged was physically present.

Indeed in the Oath Keepers and Proud Boys cases, there were significant players who did not enter the capitol, and very often the people who are not entering the capitol or not doing this hands-on criminal work are people who are leaders of that. I used to prosecute organized crime cases and I remember typical defense when you were prosecuting a boss of a family but the defense lawyer was, well, my client didn't pull the trigger and wasn't actually doing the hands-on work. That didn't mean that they were less involved. In fact, our position to the jury was that the facts are that they're more involved, more culpable.

That is ultimately a factual issue if the jury is going to credit all the evidence that remains for Jack Smith if he ever is allowed to get to trial to prove that. I do think that there are numerous cases that would suggest that much more low-level people have been charged and convicted. I think for both of us, we thought that that really ended up showing why it would actually be a miscarriage of justice. It would be disproportionate to not charge somebody who is senior in a conspiracy when you've charged the lower-level people.

Brian Lehrer: My guests for another few minutes are NYU law professors, Melissa Murray and Andrew Weissmann. They have a new book called The Trump Indictments: The Historic Documents with Commentary. Melissa, now let's take a step back. Why did you decide to publish a book that is basically the text of the four indictments with your commentary?

Melissa Murray: We are law professors, as you say, and a big part of our jobs is explaining the law to students who are learning it for the first time. When we're on MSNBC or on our podcast, we're also explaining the law to an audience that may not have legal training, or if they do have legal training, it may not necessarily be in constitutional law or criminal law and procedure. We have to explain things in ways that are digestible to a lay audience and audiences with very different levels of familiarity with this material.

We felt that in this moment where we are faced with the unprecedented indictment four times of a former president who is now also a presidential candidate, that it was absolutely imperative for every American to be able to engage with these materials in a meaningful way. In order to do that, they might need some explanation. We've collected these indictments, we've annotated them heavily so we can help explain some of the charging decisions that took place, why certain charges were brought, and why certain charges were left out, why certain defendants were charged, why certain defendants or co-conspirators are not charged as defendants. To explain all of those choices and to give the listening public, the viewing public, the tools that they need to be able to follow along and to engage in an historic event that is absolutely vital to how we continue as a democracy going forward.

Brian Lehrer: Andrew, I get Melissa's point about speaking to general audiences, because to many Americans not involved in the weeds of understanding these cases the way you two are, and to some degree I am, some of the regular listeners who follow the news really closely, to many other Americans, it can all feel like a jumble of charges that might leave them feeling either that Trump is a serial felon and he's finally being held to account. Or that the system, especially where run by Democrats is throwing the book at him for one reason or another. To that point, a listener texts this question-- or it's not even a question, it's a comment, Andrew. It says, "Unfortunately, today's finer points do nothing to bring sanity to Trump's space." What is the communication goal here?

Andrew Weissman: The way I look at that is there is a spectrum of people. There probably are people in various parts of the polity who are not going to listen, who are not going to be receptive to the facts and the law. I don't have a remedy for that. Just as Melissa said with our students, there are people I think who are looking at this in good faith who do want to understand the facts. This is such a unique moment where what's happening in the law and what's happening in the courtrooms, it's so important for people to understand because they really will be the jury in many ways.

I think that is the goal is for those people who are still approaching this with an open mind and willing to actually do what Amy Berman Jackson, a judge in the DC court used to say that the courts are a place where the facts and law still matter. We're trying to translate that to a larger audience so people can really understand and make up their own minds. This is very much, as Melissa said, what we do in the classroom is what we're trying to do here which is not necessarily change people's minds, but give them the tools to understand what is charged so they can think critically about it. Both with respect to defense arguments, but also to what the prosecution presents, and they can think about, is it fair what's being presented?

Brian Lehrer: One point you make, Melissa, in the book, and we're going to run out of time in a few minutes, but I want to make sure to get this in because it may be new to many Americans, is that other mature democracies, let's say in Europe and elsewhere have held their heads of state criminally accountable on many occasions. Do you want to give an example or an overview of that and why it matters?

Melissa Murray: In the introduction to the book, we talk about this, and again, it's meant to address this question that if we are in a situation where we are prosecuting a former president, are we no better than a so-called Banana Republic? We want to make clear that the fact of a courtroom trial does not necessarily mean that we have lost democracy. It might actually mean that we are bolstering or scaffolding democracy by holding a former leader to account. As we show in the book, there are extensive tables, we are not the first country to do this. It's unprecedented for us. It is not unprecedented in the global landscape.

Italy, for example, has prosecuted a former leader and held them to account. South Korea, Argentina, France. There are numerous examples here, and we detail them in the book. These are countries that we believe, like our own, would count as mature democracies, places where principles of the rule of law are very much viewed as being important and things that scaffold the democratic institutions that form our society. We want to disabuse the listening and viewing audience of that kind of American exceptionalism. This is unusual for us. It is not unusual in the scope of the global sweep of things.

Brian Lehrer: To come back to the news, to end on another question from a listener who was still baffled by the Supreme Court nine-to-nothing ruling yesterday in the Colorado case, the listener asks, "Why have an electoral system if states can't decide who can be on the ballot? Don't they make all kinds of rules for qualifying?" Andrew, to that specific question, don't they make all kinds of rules for qualifying, how many petition signatures you need to get on the ballot, all those other things?

Andrew Weissman: The answer to that is yes, they do. Indeed, until this decision, there were lots of decisions being made with respect to candidates for office who were less well-known and prominent than a major candidate for one of those two big political parties. We did have a crazy quilt. The issue came to the fore in this context. The listener is totally right to raise the fact that this seems somewhat anomalous, but this is the first time that the court has really been asked to address this. It is important to note that the court did cabin this to say that it is about a federal election and a federal constitutional provision.

Having said that, I think that there's a lot of people who look at this as the court basically ducking and saying, as Melissa pointed out, the ruling in many ways just guts this part of the 14th Amendment by saying it's going to only be enforceable by Congress. Congress hasn't done that. It's very unlikely Congress, at least this Congress will do it so that it becomes pretty much a dead letter and the Supreme Court has both killed it and ducked from making a decision.

Brian Lehrer: NYU law professors, Melissa Murray and Andrew Weissman, they have a new book called The Trump Indictments: The Historic Documents with Commentary. Thank you both so much for sharing it with us.

Andrew Weissman: Welcome.

Melissa Murray: Thank you, Brian.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come, of course. Stay with us.

 

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