Trump Guilty: Legal Analysis of the Verdict

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DA Alvin Bragg: First and foremost, I want to thank the jury for its service. Jurors perform a fundamental civic duty. Their service is literally the cornerstone of our judicial system.

Brian Lehrer: Manhattan DA, Alvin Bragg, opening The Brian Lehrer Show this morning after the jury announced its 34 verdicts of guilty in the case of Donald Trump falsifying business records to corrupt the 2016 presidential election. After Trump complained about Bragg and the judge, the DA reminded everyone there that it was the jury who heard the evidence and came to their verdicts. Now what happens? An appeal to be sure, a sentencing date of July 11th. Could Trump actually be sent to prison four days before the start of the Republican convention?

Another trial, by the way, begins this coming Monday. This is worth noting. Right after the first trial of a former president on criminal charges, comes the first trial of a sitting president's son. Hunter Biden faces cover-up charges too. Trump's was basically a cover-up case. In Hunter Biden's case, covering up that he had been addicted to drugs when applying for a gun permit in Delaware. That one is a federal case brought by the Biden Justice Department against the president's own son. Let's talk about what happened in that Manhattan courtroom and what happens next.

With me, University of Chicago law professor, Aziz Huq, a scholar of constitutional law, criminal procedure, and the federal courts, and author of books including How to Save a Constitutional Democracy published in 2018. Before we say hello to Professor Huq and before we open the phones to everyone because, obviously, this is very public moment for members of the public to say things and ask questions, and you will have plenty of opportunities during the course of the show, but here's a special invitation to one person who may or may not be listening right now.

There was one juror who during jury selection listed WNYC as among the places they get their news. If you are listening, whoever you are, you're invited to call in as anonymously as you want and tell everyone how the jury reached its conclusions or just how you did. 212-433-WNYC, 212-433-9692. Everyone else hold off for a couple of minutes. Let's see if this particular juror feels comfortable enough calling in. Here on the radio, of course, you don't have to show your face and put yourself at risk from pro-Trump vigilantes or anything. If you're comfortable enough with us, juror, whoever you are who said you listened to WNYC, 212-433-WNYC, 212-433-9692.

You are invited and you know you'll be treated with respect. 212-433-WNYC, 433-9692. If you're listening and you don't want to call, I get it. You deserve at least one day off after all of that, but if you do and you think it would be a good public service, 212-433-WNYC, 433-9692. Everyone else hold off for just a few minutes. With us now is Professor Aziz Huq from the University of Chicago. Professor, we really appreciate you coming on. Always good to have you on the show. Welcome back to WNYC.

Professor Aziz Huq: Thanks, Brian. Sorry that I can't give you the inside scoop that you were just looking for.

Brian Lehrer: Only one person out there, unless other jurors also listen to WNYC, but didn't say so on their jury selection forms. Only one person can actually do that. Although later in the show, listeners, I'll tell you as I tell Professor Huq, we will have Andrea Bernstein on with us who's been covering the trial for NPR. She, of course, has been in the courtroom the whole time, so we certainly will get firsthand eyewitness accounts from her vantage point. Professor Huq, were you surprised at how quickly this verdict came? They had barely finished reading back some stretches of testimony and the judge's instructions yesterday afternoon as the jury had requested when the jury announced they had reached a verdict. Did that surprise you or did it tell you anything about what the dynamic might have been among the 12 jurors?

Professor Aziz Huq: I think that case against Trump that Alvin Bragg brought was complex from one perspective, and it was simple from another perspective. Clearly, the jurors took the second view. They boiled the case down to its simplest core question. The complex version of the case was the one which locked together a series of interactions involving The Trump Organization, various players within it, a number of people who Trump or people in his organization aimed to pay off and the National Enquirer. There were lots of moving parts that Trump's lawyers tried to push holes in during the trial.

The simple version of the case was there was a transaction that was made to Stormy Daniels. The question was whether Trump knew about that transaction, and the question was whether he intended that transaction to be made with an eye to shifting the campaign in October 2016, which would have potentially been a violation of New York and federal law. The jurors clearly took the second simpler view of the case. They seemed to have homed in, given that testimony that they asked for, on the key question of intent and knowledge on the part of Donald Trump, a single defendant. I think that that's why they took a relatively short time and accounted, again, for the evidence that they requested earlier this week.

Brian Lehrer: I mentioned the juror who listed WNYC as one of the places they get their news. We also know from the jury selection process that one of the jurors said they only get their news from Trump's Truth Social platform and from X, formerly known as Twitter. Since they only needed one unconvinced member to create a hung jury, it's an indication that this was a slam-dunk set of guilty verdicts even to the Truth Social user. I don't know how much we can read into that because we don't know anything else about that person, but does it indicate anything to you?

Professor Aziz Huq: I think that this was a case where almost all of the facts were relatively clear, but where the legal theory that Alvin Bragg and his colleagues relied upon, turned upon the presence of a certain kind of intent. In criminal cases, like many other legal cases, intent, what was the state of mind, the intentions, and the purposes of often a defendant, will be key, but it will often be very difficult to prove intent. In many cases, especially criminal cases, intent is easy. When someone points a gun at another person and fires that gun, we understand what intent that person has because we infer from their actions, but where you have white-collar crime where there's a question of what one intends to do through the execution of, in this case, it was checks and vouchers that The Trump Organization used, questions of intent are often murkier. I think it would be unwise to think of this case as a slam dunk at the front end given the difficulty of proving intent, especially in white collar cases of this kind.

Brian Lehrer: Listeners, we can't wait for that juror to call forever. Still, feel free, whoever you are, of course, but now we can take everyone's calls, comments, questions, emotions, analysis, the law of it, the politics of it, whatever, on these convictions of Donald Trump. 212-433-WNYC, 212-433-9692. By the way, not that all of you held off anyway. I can say that five people didn't care that I asked people not to call and jam up our lines until we saw if that juror would call in. For the rest of you, the other five lines are still open. 212-433-WNYC, call or text, 212-433-9692 with University of Chicago law professor Aziz Huq.

Professor, let me finish establishing that contrast between what DA, Alvin Bragg, focused on after the trial and what former President Trump did. We heard the Bragg clip celebrating the jury. We'll hear more of that later too, but here is 30 seconds of Trump just after the verdicts were in.

Donald Trump: This was a disgrace. This was a rigged trial by a conflicted judge who was corrupt. It's a rigged trial, a disgrace. They wouldn't give us a venue change. We were at 5% or 6% in this district, in this area. This was a rigged disgraceful trial. The real verdict is going to be November 5th by the people and they know what happened here and everybody knows what happened here.

Brian Lehrer: Professor, for you as an expert in criminal law, are those, in effect, just political complaints by Trump, or could some or all of them be grounds for a successful appeal? I'm going to ask you a number of questions about what we might expect on appeal because there will be an appeal. Let's take the venue of Manhattan first where Trump got just 15% of the vote in 2020 and he brought it up in that clip. How might an appeals court view that fact if they view it as relevant at all?

Professor Aziz Huq: I doubt that the choice of venue will be relevant. Just because someone votes for a candidate other than Trump doesn't mean that they're incapable of giving Trump a fair trial. Trump had, as everyone knows, a team of very expensive, very experienced lawyers who were able to engage in jury selection. In the process of jury selection, they had ample opportunity to screen individuals for biases that meant that they would not be able to give their client a fair trial. There is no reason at all to think that they were unable to perform that function which lawyers are supposed--

Brian Lehrer: Let me jump in on that point because I did see Trump's lawyer, Mr. Blanche, on Fox last night, and he was indicating that maybe they couldn't, by saying you only get a limited number of appeals. He said he didn't want to criticize the jury, but you only get a limited number of, I don't mean appeals, you only get a limited number of jurors you can strike. There was an implication left at least that my hands are tied, it's Manhattan. It's not like we were going to find six people who voted for Trump and six people who voted for Biden.

Professor Aziz Huq: I would go back again to say that a jury isn't fair just because it has six people who vote one way and six people who vote another way. It's fair if you have 12 people who are willing to listen to the evidence, deliberate, and make a judgment on the law, reflecting that evidence. All of the accounts that we have of the trial, all of the accounts of the jury selection suggest that that's what we had in this trial. If whoever handles the appeal chooses to make the argument that you've just identified, that Trump's lawyers only had a certain number of strikes, I think that that argument would be extremely hard to make. I certainly don't think it is an argument that most criminal defense lawyers would lead with, especially given that there are other arguments that I think are more likely to catch the attention of an appellate court in New York.

Brian Lehrer: I think Gary in Little Ferry in Jersey has a possible grounds for appeal question. Gary, you're on WNYC. Hi there.

Gary: Hello. Thank you, Brian. Even though I hate Donald Trump and if I had my [unintelligible 00:13:39], he'd be in jail now waiting execution because how else you explained January 6th?

Brian Lehrer: Oh, boy.

Gary: Being a traitor, but I do have problems with the New York decision. You charged him with a New York state law. In reality, it was a federal law. To me, that's diluted. I want to make a statement about the jury. Roy Cohen was indicted in Manhattan three times, and nobody was more hated by the left than Roy Cohen, and he was acquitted every time. This jury nonsense doesn't hold.

Brian Lehrer: You're saying reason to believe the jury was fair, but your question is about the law, correct?

Gary: Absolutely.

Brian Lehrer: Gary, thank you for your call. Let me drill down on the question that he's raising. I think it relates to something I've been reading about this, Professor Huq is, I'm going to quote from an article in The Telegraph, which I think goes to Gary's point, this describes it as being about the statute itself. It says, "To convict Trump, the jury had to find he had falsified records with the intent to commit or conceal another crime, but it does not specify what the other crime is." Then it says, "For Trump's case, the crime question was the violation of New York Election Law Section 17-152. A rarely used law that prohibits groups from using unlawful means to influence an election. While jurors had to be unanimous that Trump had broken the law, they didn't have to agree on what those unlawful means were. They were given three options; a violation of federal election campaign law, falsification of business records, or violation of tax laws."

The question is, Professor, after I read that stretch, is that ambiguity of vulnerability for this case, including whatever confusion there may be to the caller's point about charging him under New York law with what was actually a federal offense?

Professor Aziz Huq: I think that this is likely to be the focus of legal attention in an appeal. I think that the law here, as I understand it, is genuinely complex, and there are issues that Trump's lawyers, on appeal, certainly could press on, of the kind that the caller described. Let me try and explain how the New York law works and what kinds of arguments the appeal on Trump's behalf would likely make. I'm going to try and set those arguments out in their strongest form without endorsing them or suggesting that they would prevail on appeal.

The statute that Bragg employed is a statute that makes the falsification of business records a misdemeanor. That falsification act becomes a felony only if the falsification is done with the intent to commit some other crime. If you falsify business records, for example, with the intention of let's say defrauding WNYC, even if you don't get around to actually defrauding WNYC, you've still committed a felony falsification offense. Now, in Trump's case, the falsification of the record question was relatively straightforward. That is, it was relatively clear that he had committed a misdemeanor.

What was unclear was whether he had the correct kind of intent to commit a felony. That intent would require that he intend to commit some further crime. It's important to note that the New York Court of Appeals, which is the highest court in New York, has held that if you commit the falsification of Business Records Act and you intend, in doing so, to commit some other crime, you have committed a felony even if you don't commit the other crime. The key question here is what is Trump's intent, not what other crime he did or did not commit. He doesn't need to have committed some other crime to have committed the felony offense of falsifying records.

Brian Lehrer: I know this whole topic from what I quoted in The Telegraph, some of your answer, even what the caller was bringing up, is pretty in the weeds and might be leaving some listeners in the dust. Without going further into the weeds, do you have a prediction of how the appeals court would rule on this set of arguments?

Professor Aziz Huq: I don't have a prediction, but I think that there are at least two kinds of arguments that Trump's lawyers could make, that he didn't have the right kind of intent, or there was enough confusion about what other offense might have been lurking out there, for them to successfully seek a new trial. It is very hard, without going into the weeds, to make a prediction of whether either one of those two theories, which I do think are the most powerful theories that an appellate lawyer could bring, is going to succeed in New York courts.

These are, like you said, intensely technical questions about the minutia of state criminal law. One of the things that I would flag is that the strategy of Todd Blanche through the trial itself was not to focus upon the weakest parts of the prosecution case, but rather to throw all the spaghetti against the wall and see what sticks. This came up, particularly in the manner in which he questioned Stormy Daniels and the focus upon the question of the nature of her relations with Trump. If he takes, or if the lawyer handling the appeal takes that throw-everything-against-the-wall approach, I think that that will actually make the appeal less likely to succeed.

Because unless you flesh out these technical questions about what's the right kind of intent unless you walk the judges through your explanation of why the jury instruction here didn't give the right kind of intent instruction, you're very unlikely to persuade a higher court in New York to reverse the conviction. I think it's not just the nature of the potential legal errors, but also the strategy that the appellate lawyers take when, as you say, there is the inevitable appeal that will determine what's likely the outcome.

Brian Lehrer: Joan in Manhattan, you're on WNYC with University of Chicago law professor, Aziz Huq. Hi, Joan.

Joan: Oh, hi. Yes, [unintelligible 00:21:29] two of you have noticed what I've noticed with a hint of irony here, that the right-wing seems to have suddenly discovered that we don't have equal justice in America. I heard somebody yesterday comment that, "Oh, this is terrible, this verdict. This proves we used to have the best equal justice system in the world, and we no longer do." They suddenly noticed that one-half of the ruling class, the Republicans, they think are being treated worse than the other half of the ruling class, the powerful Democrats.

That means we don't have equal justice, and they still haven't noticed, I don't think, that we've never had equal justice. Not for the rich and the poor, the people of color, and not color women and men. What do you think? Have you noticed that?

Brian Lehrer: Joan, thank you very much. Yes, it's interesting, Professor Huq, that Trump and his supporters keep referring to a two-tier justice system. It's the same thing, at least the same phrase that we hear from lawyers who defend a lot of poor people, right? Usually, it turns out to be a lot of poor people of color because, who's in that low-income category? Here they're using the same phrase, a two-tier system of justice, but the argument is the justice system is biased against rich white guys, or at least as Joan put it, rich white Republicans.

Professor Aziz Huq: We have an adversarial criminal justice system. That means that the quality of the case that a defendant can bring depends upon the quality of the lawyer that they are able to hire. The quality of the lawyer they're able to hire depends upon how much money they have. The effect of wealth on the quality of criminal justice is, therefore, pervasive. It is not defendants like Donald Trump who are able to hire well-heeled former federal prosecutors and large teams of assistance who are harmed by the variation in the quality of criminal justice.

It is defendants who depend upon public defenders in states like Louisiana, which recently dramatically moved toward cutting funding for public defendants. It's those defendants who aren't ever able even to get to trial but have to take plea bargains because they have, for counsel, public defenders who are massively overwhelmed by their caseload. If there has been unequal application of the rules with respect to Donald Trump, I think we should look to the case that was filed in Florida that has been slow-walked and has been, I think it is fair to say, purposefully hindered by the trial judge, a Trump appointee Aileen Cannon, over the course of the last eight months, in ways that are inexplicable in the absence of some motive on Cannon's part, to assist the person who appointed her.

I think that absolutely there is a two-tiered or a multi-tiered criminal justice system. We will have a multi-tiered criminal justice system as long as that depends upon the money that the defendant can bring to the table, but Trump has been the beneficiary not the victim of that system.

Brian Lehrer: In a minute, we're going to take a break and continue with Professor Huq, and we're going to move to the topic of sentencing and whether Trump is likely to actually have to go to prison four days before the Republican Convention begins in July because that's when the sentencing is going to take place, Thursday, July 11th. Before we get to that, one more thing about a potential grounds for appeal, there's Trump's claim about a conflicted judge. He's spoken about this so many times. We heard it in the clip we just played.

Here's part of an article from The Guardian earlier this month.

It's The Guardian, which is obviously not Fox News. It says, "The judge overseeing Donald Trump's hush money campaign finance trial has been cautioned by a state ethics panel over two small donations made to Democrat-aligned groups in 2020. Judges are prohibited from contributing to any campaigns including for federal office. This was about a $35 donation to the Democratic group, ActBlue, that included $15 earmarked for Biden for President, and $10 each to the Progressive Turnout Project, and one called Stop Republicans."

Professor, apparently, the judge did break the rules about partisan campaign donations, just $35, but it still makes a statement. Is it grounds for a successful appeal no matter what people may think of what the judge did in the courtroom of public opinion?

Professor Aziz Huq: I think it is very unlikely that the donations that you described, Brian, are going to reach the level that is of conduct that justifies a recusal. I think that we've seen that, in practice, the standard, or the kind of conduct that actually forces judges to recuse, particularly in respect to political matters, has become very high. We've seen this with respect to the Supreme Court, and in particular, the arguments for Justices Thomas and Alito to recuse based upon public statements, based upon, in one case, the active involvement of a spouse in the actions or the events of January the 6th. I think that given the high bar that has been set for recusal by the highest court in the land, it seems to me unlikely that the financial donations, relatively small ones that you described, are going to approach disqualification level.

Brian Lehrer: We'll turn to sentencing with Professor Huq, and take more of your calls and texts right after this.

DA Alvin Bragg: 12 everyday New Yorkers, and of course, our alternates, heard testimony from 22 witnesses, including former and current employees of the defendant, media executives, book publishers, custodians of records, and others. They reviewed call logs, text messages, and emails. They heard recordings, they saw checks and invoices, bank statements, and calendar appointments.

Brian Lehrer: Again, DA Alvin Bragg focusing on the jury after yesterday's verdicts, and there, the physical evidence, Donald Trump guilty on all 34 counts against him, in case you've been under a rock for the last half a day, for falsifying business records to cover up hush money payments to Stormy Daniels after the Access Hollywood tape came out in 2016, so the public wouldn't know about her allegations of an affair before they voted. Again, Donald Trump, after the verdict, outside the court, has he talked about anything other than the jury?

Donald Trump: We don't have the same country anymore. We have a divided mess. We're a nation in decline, serious decline, millions and millions of people pouring into our country right now from prisons and from mental institutions, terrorists, and they're taking over our country. We have a country that's in big trouble, but this was a rigged decision right from Day 1, with a conflicted judge who should have never been allowed to try this case, never.

Brian Lehrer: Trump yesterday. University of Chicago professor, Aziz Huq, is with us, expert on constitutional law and criminal law, and the federal courts, and author of the 2018 book, How to Save a Constitutional Democracy. We'll take more calls and texts from you all as we go. Professor, let's talk about sentencing. It's completely up to the judge as I understand it, Judge Merchan. He scheduled sentencing for Thursday, July 11th. The Republican Convention begins the following Monday, July 15th. Could Trump spend Republican Convention Week behind bars?

Professor Aziz Huq: I think that that's unlikely. These are counts that, while they are felonies, and while they have a maximum sentence of four years imprisonment, generally do not lead to imprisonment. Moreover, it is unlikely that any sentence that is imposed on July 11th, in particular, a sentence of imprisonment, would go into effect before Trump has had a chance to appeal. It is certain that an appeal process will not be complete by July 11. It is very, very likely that an appeals process will not be complete by election day in November.

Brian Lehrer: I've seen conflicting analyses of how sentencing might go in some of the coverage. One version says New York courts generally do not sentence people to prison time for this kind of falsification of business records conviction, so Merchan won't order prison for Trump. A different version says Trump had 10 violations of the gag order against attacking witnesses and court officials' family members during the trial, and he is showing no remorse, so protocol might lean more toward ordering prison time. Also, arguably, I saw it said Michael Cohen went to prison for basically the same conduct in the same case, which, by the way, was brought by Trump's Justice Department. Do you have an opinion about the likelihood of a prison sentence based on those conflicting views?

Professor Aziz Huq: I think that the range of views that you hear out in that public sphere reflects the breadth of discretion that a judge, including Judge Merchan, has in the sentencing phase of trial. The judge is going to make a decision based upon all of the factors that you described, that the fact that generally, in New York, this is not a criminal offense, a felony that leads to jail time. Absolutely, the demeanor and the behavior of the defendant during and after the trial, are legitimately going to factor into his decision. Another factor that I would point to is, to the extent that one thinks of this case is involving The Trump Organization, there is now in the New York courts, thanks to the civil suit brought by Letitia James, a record of persistent fraudulent representations and legally dubious business transactions that extend over a much wider sphere of activity and a much longer period of time. It's not outside of the bounds of Judge Merchan's discretion to take account of the fact that what we are seeing in the context of this criminal trial is but a sample of a larger pattern of financial misconduct by the same organization and the same actors. None of that is to say that any of us can actually predict how Judge Merchan will exercise his discretion. That's the whole point of discretion. It's his decision to make.

Brian Lehrer: Were you saying, a minute ago, that the sentencing process begins on July 11th, that there would be a sentencing hearing, I guess is the implication, and that the sentence itself would not necessarily come down on that day?

Professor Aziz Huq: The sentence, I would make two points. The first point is we know that that is the date of the hearing. Ordinarily, I think we would expect the hearing to be complete in a day, but we have no certainty of that. It might last longer. There might be issues that come up at sentencing, whether questions are fact or law that mean that Judge Merchan decides to hold subsequent hearings. Merely because a sentence is imposed that day does not mean that the sentence would necessarily kick in that day. This is a point of law, which I will confess. I don't know how New York deals with, but once a sentence is imposed, while there is an appeal pending where that appeal may lead to the reversal or the vacation of the sentence, I would imagine that Judge Merchan at least has the discretion to suspend the application of any sentence pending an appeal. I should be clear that that is a question of New York law that I don't want to represent myself as knowing in detail.

Brian Lehrer: Deborah in Manhattan has a sentencing question. Deborah, you're on WNYC with University of Chicago law professor, Aziz Huq. Hi, Deborah.

Deborah: Hi. Good morning. Thank you for your wonderful show, Brian.

Brian Lehrer: Thank you.

Deborah: I'd like to ask the professor if it would be legal, in the sentencing process, to require a psychiatric exam. That's in part because of the contempt. I heard someone on MSNBC say that the behavior of the defendant was so out of line with anything they had ever seen in a courtroom before. Could that be part of the sentencing?

Professor Aziz Huq: Prior to the sentencing, my understanding is that New York requires something called a pre-sentencing interview where the defendant sits down with officers from the criminal justice system, and they gather information from the defendant, including information about state of mind, including information about intentions in the future, including information about remorse or contrition about the relevant offenses. I think it is much more likely that the kind of questions of disposition, state of mind orientation, are going to come out in that pre-sentencing interview. I doubt that the interview will lead to any kind of psychiatric diagnosis or a further psychiatric hearing for the defendant. That's not something that either the prosecution or the defense has an interest in pushing, and so I think we are unlikely to see anything of that kind happen beyond the pre-sentencing interview that I described.

Brian Lehrer: If he is sentenced to prison, does a convicted felon serve prison time while the appeal is going on because we know they're appealing the conviction? If he was free on his own recognizance, as Trump has been during the original trial if he's sentenced to prison time, is he behind bars, or is he free while the appeal is going on?

Professor Aziz Huq: This is the question, Brian, that I punted on because it's a detail of New York law. I want to be very careful about not stating something on a question of law. There's lots of details here that one needs to be cautious about getting right.

Brian Lehrer: That is state by state, the answer to that question.

Professor Aziz Huq: That would be [unintelligible 00:37:35]

Brian Lehrer: Listener writes, "I still don't understand how a candidate can be prosecuted for paying hush money before an election. Isn't that done all the time? Then the alleged crimes of business records were logged after the election, so how is this election fraud?" What would you say to that listener?

Professor Aziz Huq: There were originally four theories that Bragg had of why the falsification here was intended to facilitate a further offense. It's often forgotten that Merchan kicked out one of those four theories at the beginning of the trial. Two of the theories he left over were the campaign finance-related disclosure rules from New York and the federal government. The third was a tax fraud statute. Now, notice that the caller's question bears upon the first two, but not the third theory of falsification felonies. With respect to the first two theories, campaign finance laws apply not just before elections, but also after elections.

They concern expenditures on an election and their duty to report those expenditures, whether that reporting can be done before or after the election. Even with respect to the campaign finance offenses, the issue is, I think that the timing of the election is not a problem in the way that the caller suggests.

Brian Lehrer: Another listener writes, "Can the guest please talk about other examples where the justice system has convicted current or former politicians i.e. Bob Menendez, Chris Collins," this says, "Sheldon Silver, et cetera, et cetera." Listener writes, "The right-wing has framed Trump's conviction as this unique thing that never happens, but politicians are arrested, indicted, and convicted often. What is unique is the politician is the president." I wonder if you have anything to say about that. Also, I wonder if you can put it in some international context. This is a first for the US, convicting a former president of anything. We know more cases against him in the works, but haven't many other democracies sent former heads of state to prison for crimes they were found to have committed?

Professor Aziz Huq: I think the answer is yes and yes. Let me try and do both briefly. On the domestic front, I would point to cases like John Edwards, who was a very prominent North Carolina democratic politician, often talked about as presidential hopeful, who was convicted on financial crimes that have many points of similarity with the conviction against Trump yesterday. The other domestic example that I think is really interesting, is a man called Alcee Hastings, who was a federal judge until he was indicted by the Justice Department on fraud grounds and then impeached.

Then he successfully ran for Congress. Again, he was on the left rather than the political right, but I think is another interesting domestic example. You're absolutely right, Brian, that it is true that in other countries there are criminal prosecutions of former elected leaders. We've seen this in places like Georgia. We saw a very high-profile case in Brazil where a person was president, subsequently indicted and convicted for financial crimes, Lula, and then successfully runs for president.

Brian Lehrer: I know examples of heads of state being convicted afterwards in France, in India, in Japan, in South Korea, right?

Professor Aziz Huq: Yes. There are many examples of former heads of state who have been charged and convicted of crimes related to their use of office after the fact. Notice that this, unlike the two federal cases, is not a case about the abuse of official power. It's not a case about powers that Trump had as president, which he misused either to his own personal or political advantage. In some sense, I think that's why, for many people, the two federal cases are more important because, to the extent that our democracy continues, it continues because we can rely on the legal system to prevent powerful actors misusing their official powers.

I think that's the reason I single out particularly the Lula case because it raises this issue of how does a democracy deal with somebody who has enormous public support, but then uses that public support in manifestly unlawful ways? It's a deep paradox and difficulty for democracies, but it's one that's actually more sharply raised by the January 6th prosecution that has been malingering in the federal court system and the Florida case about classified documents that has been blocked up by Judge Cannon.

Brian Lehrer: I guess the question becomes when there's an overlap between a criminal case and politics. We can see it as a banana republic kind of retribution against political enemies, or we can see it as a high standard of democracy, one of the highest standards of democracy because even someone that powerful can be held to account. I don't know if there's an objective way to tell because we know political supporters of almost whatever convicted leader will tend to say the conviction was corrupt, right?

Professor Aziz Huq: I think that's right. I think that in cases where there is an allegation that a political leader has abused powers, he or she has because of their office. The argument for bringing either a criminal prosecution or a mechanism for disqualifying that person from office, and notice that the Supreme Court recently put that off the table as a practical matter for Trump, is extremely strong. I think that, in those cases, what really matters is coming to a judgment about whether the facts support either a criminal penalty or a disqualification.

I think that one of the ways of thinking about these criminal cases is in light of the failure of the American political system to apply the norm of disqualification that is in Section 3 of the 14th Amendment. This is the rule that if you've broken an oath by participating in a rebellion or an insurrection, you are not permitted to stand for office. The Supreme Court recently made that Section 3 rule practically impossible to apply. In a system where you have the appropriate mechanism or the intended mechanism for dealing with oath breakers taken off the table, the argument for criminal prosecutions, I think, becomes much stronger.

Brian Lehrer: Just as a last thought on this, it's worth maybe mentioning again, as I did at the top of the segment, that an actual Biden Justice Department case begins on Monday against Hunter Biden. That's also a first, the first trial of a sitting president's child. Politics is politics, and people believe what they want to believe, but there is also such a thing as looking at the facts. At the level of politics during an election, competing campaigns will try to convince people of one argument or another, but the Biden Justice Department is going to court against Hunter Biden on Monday.

Professor Aziz Huq: It is worth remembering back to 2017 and 2018, when we heard a great deal of evidence, in part through the Mueller inquiry, but otherwise, through leaks, that while in office, Trump tried very hard to turn the Justice Department against his enemies and away from his allies. We have not just the pattern of a Biden Justice Department bringing indictments against the president's son, against a sitting democratic senator, we have actual evidence that the Trump administration took intentional efforts to distort the law to partisan ends with respect to criminal justice.

Brian Lehrer: University of Chicago law professor, Aziz Huq, a scholar of constitutional law, criminal procedure, and the federal courts, and author of books including How to Save a Constitutional Democracy, published in 2018. Professor Huq, by the way, has also agreed to join us multiple times in the month of June as the Supreme Court comes down with its major end-of-term decisions. Thank you in advance for donating that much of your time in the coming weeks. I'll talk to you again soon.

Professor Aziz Huq: Thanks, Brian. It's always a delight to talk to you.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come.

 

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