Donald Trump's trial in Manhattan looks like it's going to get started a lot more
quickly than people anticipated. Basically, a lot of people weren't sure exactly how
long it would take for jury selection to take place. And as of clothes
of business yesterday, they already had seven jurors selected. They're going to have.
It's going to be a jury panel of eighteen twelve jurors and six alternates.
Usually the way it works, and often the way it works in New
York apparently, is that you get thirty eight people and then both sides get
ten challenges. Ten people they can just peremptorily you shove off the jury pool.
So you go from thirty eight each side subtracts ten, and then you're
down to eighteen. And that process usually takes long. That's not what the
judge is allowing. The judges basically just letting them get to eighteen and then
saying, all right, now, you guys, use your challenges. And
then often attorneys are a little more loth to kick people off the jury then
because they don't know if they're going to get somebody better. So it looks
like we're going to we could have a trial starting with Trump's case as soon
as Monday. And this is a hugely significant thing. It's hugely significant for
you know, if Donald Trump is actually convicted of a criminal offense that's going
to massively impact could anyway massively impact the election. And what do you do
if he's convicted absolutely on all counts. How do you deal with a presidential
candidate who's in jail? So this is a hugely consequential thing right now.
I want to kind of go through some of the legal questions again. I
know I talked about this a little bit last week, but just to sort
of refresh people on what a stretch these charges are out of all of the
criminal charges Trump is facing at the federal level, and this is a New
York state charge. Mind you, this is the weakest case. It's the
weakest case, but it's a jury pool manhattanites who are not going to be
sympathetic to Donald Trump. So I think while the charges are weak, the
fact that you have such a liberal jury, I think means you could very
well see Trump convicted. So let's dig into this. What is he actually
being charged with and how do we sort of how do we think through it?
And I want to talk about sort of the interesting legal issues involved,
which I think are incredibly I think the charges are such a stretch against Trump.
And one of the things to remember is the various you know, jurisdictions
that are at play here. The kinds of things Trump is being charged with
are things that lots of other prosecutors have already said no, thanks, we're
not going to charge him with. The prior District Attorney of Manhattan before Alvin
Bragg looked at this case and said no, not going to charge it.
The federal prosecutors in the Southern District of New York. And let's recall the
federal prosecutors in the Southern District of New York who prosecute all the federal crimes
in Manhattan. They're the creme de la creme. Okay. There's no prosecutor's
office in the country more elite than the prosecutors than the prosecutors who work in
the Southern District of New York, the federal Southern District of New York.
Okay, this is the absolute creme dela creme. There were Biden administration federal
prosecut in the Southern District of New York who looked at this thing and said,
now, we're not going to bring charges here. Alvin Bragg did.
Alvin Bragg, the ultra left wing prosecutor, the ultra left wing District Attorney
of Manhattan, who doesn't want to prosecute, you know, normal criminals,
any person of color who you know, punches old ladies on subways. There's
this huge swath of New York criminal law he just does not want to enforce
for various kinds of racial equity reasons. He's the only one who wants to
bring this charge. And the case against Trump, it's being characterized as a
hush money case that he paid hush money to a porn star. Technically,
paying hush money to a porn star is both one not illegal, highly unsavory
illegal, and two it's not actually what he's being charged with. What Trump
is being charged with is miscategorizing in his records what that payment was. So
Donald Trump signed a non disclosure agreement with Stormy Daniels. It's not her,
actually, I can't remember her actual name. I think Stephanie Clifford is her
name. Stormy Daniels a porn star that allegedly he had an affair with,
and he signs basically a non disclosure agreement with her that basically she will receive
a sum of money which was going to be paid to her through Michael Cohen,
Trump's erstwhile lawyer, fixer Slash Sleeze Ball, and in exchange for that
money, Stormy Daniels would not publicly discuss their affair. Such an agreement is
sleazy and unsavory in this context, certainly, But non disclosure agreements are a
totally legal thing in many, many, many many contexts in American civil law.
You know, to companies have a dispute, all of a sudden,
nobody's talking about it. Why, well, everyone money was exchanged. Non
disclosure agreements were signed. Non disclosure agreements are used quite often in American civil
law, and they are legal most of the time. Now, there are
some instances where maybe they're not. If you sign a non disclosure agreement but
you get called in a criminal law context to talk about it, you kind
of have to talk about it, so it's not. There are certain things
that a non disclosure agreement has to kind of bend and conceive to, But
non disclosure agreements happened all the time. Hush money, if you will money
to hush someone is not in itself illegal most of the time. So Trump
makes this arrangement with Stephanie Clifford. That's not illegal. The crime allegedly that
Donald Trump made, according to New York law, was falsifying his business records
for how that payment was categorized instead of so basically what it was is,
Michael Cohen goes to a bank on his own line of credit, He gets
money. He has an LLC that pays Stormy Daniels one hundred and fifty thousand
bucks. Trump pays back Michael Cohen instead of listing in his records that this
payment is repayment of a loan. Basically Cohen laid out the money for Trump.
So this is basically Trump paying back Cohen for basically a loan in a
sense. Instead of categorizing it like that, Trump in his books characterized it
he basically instead of paying Cohen all the money up front, he broke the
payments up into chunks and gave Cohen a series of monthly payments that were categorized
as ongoing legal fees for ongoing legal work. Now here's the thing in New
York law, if you're falsifying business records, that's the fact of stating things
incorrectly is not itself a crime. The crime is stating things incorrectly in order
to commit fraud. Now fraud. A good way of thinking about this is
lying for money. Okay, fraud. When you hear the word fraud,
a good shorthand for that is lying for money. And in New York it's
a little bit broader than that, like lying for advantage in some sort of
material advantage for yourself. Nobody was really advantaged by the lie. In fact,
if anything, Trump and Cohen made the tax situation for themselves worse by
characterizing the payments as legal fees rather than as repayment of a loan. Okay,
if if I loan you one hundred and fifty thousand dollars and you pay
me back that money, well, the money I get back that one hundred
and fifty thousand dollars, assuming I don't know charge your interest or anything.
If I loan you a hundred fifty thousand, I get one hundred fifty thousand
dollars back. My receiving one hundred and fifty thousand dollars back, that's not
taxable income to me the way that Trump and Cohen did it, though,
it was taxable. It was basically, if you're paying if you're giving the
money to someone and calling it legal fees rather than repayment of a loan,
then everyone's got to pay tax on that. So no one was making money
off of it. It wasn't really a fraudulent thing. And by the way,
those payments and the categorization of that was after the election, so calling
it that. So that's that's sort of one of the points. So,
first of all, the initial crime itself unclear whether all the elements were actually
met. Was anyone actually being defrauded. No, was fraud actually happening.
No, they were mischaracterizing it, but it wasn't. No one was making
any money off of that mischaracterization. If anything, they lost money off of
it because they had to pay basically double the tax. Well, here's the
thing in New York. Falsifying business records to commit fraud the level it was
at everyone sort of acknowledges would have been a misdemeanor. It only becomes a
felony if it's in furtherance of some other felony. And this is critical.
The other problem that the DA of Manhattan had. If it's just a misdemeanor,
then the statute delimitations has already passed. Basically, if it's a misdemeanor,
you got to bring that charge within a year or two. We're way
past that time, all right. This is conduct that happened in twenty sixteen
and twenty seventeen. It would have had to bring that case in like twenty
eighteen or twenty nineteen, so we're way past that point. It's only if
it's a felony. Though. If these falsification of business records were in furtherance
of a felony, then the statute of limitations is longer and Brag can bring
this claim now. So that's what Bragg's claiming. He's claiming that this was
in furtherance of a federal elections felony, of a violation of federal election law.
Basically, Trump not reporting this payment as an election expense, that that
is a felony, violation of elections law. Now, a lot of problems
with that one. Alvin Bragg bringing this case in New York state law.
New York state law doesn't have jurisdiction over federal elections law. Secondly, federal
elections officials did not prosecute Trump for this crime. They looked at it and
didn't think it was a crime. John Edwards, I don't know how many
you remember him. He was a former senator from North Carolina used to be
He was John Carey's running mate in two thousand and four. He was prosecuted
for a similar kind of thing as an elections violation and was acquitted. So,
yeah, Trump paying hush money to this woman. It might have helped
his campaign. But is that a campaign expense that needs to be reported.
No, not necessarily Trump paid off this woman. He might have had multiple
motivations for paying her off. For one, to not cause embarrassment in his
marriage. The timeline of this would have been that he would have had this
affair with Stormy Daniels very shortly after Millennia had their first child, but their
only child. I guess that Trump and Millennia have barren. There are a
lot of reasons why Trump would have done it other than electoral advantage. And
also we're talking about the misstatement of records. The misstatement of records happened after
the election was over. Yeah, he made the hush money payments. Maybe
in furtherance of his electrical He made the pledge that he would give hush money
payments in furtherance of his electoral chances. But the misstatement of records was after
the election. That's not in furtherance of the electoral process in any way.
So it's a the case against Trump here in Manhattan. It rests on so
many weak building blocks. Now I'll just again say, I'm looking at this
like a lawyer. I'm not looking at this like you know, an ethesis.
It seems it seems more idiotic to me rather than evil, that Trump
sort of mischaracterized for his financial records what this payment to Cohen was. If
anything, it seems like it would have just made more sense for him to
treat it as paying off alone. I guess I don't understand. It's more,
I don't understand the manner of Trump's conduct here with the falsification of business
records. Obviously, I not crazy about hush money payments to porn stars and
all the allegations of sexual impropriety. Nonetheless, though I don't think there is
even close to a convictable crime here. But here's the thing, it's a
New York jury. When we will return, we will discuss the dynamics there
with the jury that is next on the John Girardi Show. If you're wondering
why is Girardi talking on and on and on about this Manhattan trial. Look,
Trump, if he's convicted here, could face decades in jail. Okay,
this is really important, guys. I agree that the charges against Trump
are weak. I agree one hundred percent agree, no dispute here. But
if Trump is convicted, he's he's charged with like thirty two counts of falsification
of business records in furtherance of a felony level felneral elections crime, failure to
report. Okay. And by the way, the way that it was spun
up into something like how many how many? How many counts exactly thirty four
counts of felony falsifying of business records. Each count carries up to four years
in jail. And the way that they got to thirty four counts was basically
as I explained in the last segment. Trump agreed to do this non disclosure
agreement with Stormy Daniels. Basically, he would pay her a bunch of money
she would not talk about their alleged affair. He did this via Michael Cohen,
who was working for him in various capacities as a lawyer. Cohen.
Basically, Cohen paid the money and Trump needed to repay him for that Trump
and Cohen Trump instead of categorizing his payments back, Trump instead of categorizing his
payments back to Cohen as repayment of a loan, Trump categorized it as payment
of ongoing legal fees. That's the crime here that Trump categorized his payments to
Cohen as paying legal fees rather than as repayment of a loan. And Trump
basically paid Cohen in installments, so a monthly installment of you know, several
tens of thousand dollars per month over the course of several months, and he
had to pay Cohen more because Cohen knew he was going to have to pay
taxes on it because they were categorizing it as legal fees rather than as repayment
of a loan. So basically there were thirty four individual payments from Trump to
Cohen, and brag is categorizing every single payment as an individual felonious act or
not even the payment. The way each payment was categorized, each payment was
actually repayment of a loan. But in the business records, Trump was categorizing
it as payment of ongoing legal fees, which is kind of a preposterous thing
for Brag to do. This was obviously one single transaction, not thirty four.
It was one transaction paid off in thirty four installments. So the idea
that you're going to take Trump's legal exposure from you know, four years to
you know, one hundred and thirty six years or something like that, is
kind of preposterous. Now, Trump could get convicted of this, all right,
and unlike the federal charges that Trump is facing. Let's remember this about
the pardon power that the president has. Okay, everyone kind of knows this
that the president has the power to pardon people for crimes, and it's basically
an uncontestable, unchallengeable in court power that the president has. Bill Clinton,
on his way out, issued some pardons that looked incredibly sleazy, but there
was no way of really challenging it. The presidential power to pardon is pretty
much absolute, and it's uncontestable. Presidents can pardon people completely for a criminal
conviction. They can even anticipatorily pardon someone for something they haven't been convicted or
even accused of yet. That's one of the most famous pardons in history was
when Gerald Ford pardoned Richard Nixon for any and all wrongdoing in connection with Watergate.
And the pardon power was actually something that came to the American presidency from
the British monarchy. Okay, so the crown had the power to pardon people
for criminal crimes, for criminal offenses. And this is sort of the monarchic
nature of the presidency that this was a power of the monarchy that when the
New Constitution was drafted, was vested in the president sort of as a monarch,
not in the sense of like a hereditary king. The president is a
single man who exercises power monos one k power. Okay, Well, the
one limitation on the presidential power power to pardon, is that presidents only can
pardon for federal crimes. They can't pardon for state crimes. And that's what
Trump's being charged with. Now. He's not being charged by federal prosecutors.
This is not a federal criminal case. This is a New York state case.
This is a New York State criminal case being prosecuted by the District Attorney
of the County of Manhattan. The only person who can pardon for New York
state crimes is the governor of New York, all right, So what the
president. The president's power over the federal system, that's what each individual governor's
power is over their state system. Gavin Newsom can pardon for California crimes,
not Joe Biden. Kathy Hakule, the governor of New York. She can
pardon for New York crimes. Not Gavin Newsom and not Joe Biden. Okay,
so that was always the thing. Trump sort of has this in his
back pocket. If he could delay his federal criminal charges until after the election
and he wins, he could pardon himself. He can't do that for New
York. So what I'm saying is, look, I think the charges against
Trump are extremely weak, but it's a jury trial, and it's a New
York City Manhattan jury. He could get convicted and no one's gonna pardon him.
Where does that leave Republicans? That'll be next on the John Girardi Show.
I hate to kind of raise this possibility for people, and I know
people will get upset. But the trial's happening, all right. Trial is
they're doing jury selection right now. The jury might be impaneled in the trial
over President Trump and the allegations in New York of falsifying business records allegedly and
further into a felony. Look, Donald Trump could be convicted, you know,
two months from now. Okay, it's today, is what April seventeenth?
We could be June seventeenth and Donald Trump could be convicted. It could
be again. And again I'm saying I think that the charges against him are
weak. I think they rest on a whole bunch of weak presuppositions. But
it could happen. It's a jury trial, all right. These things are
not always decided by you know, these things are not always decided by what's
right and what's wrong. It's decided by how the jury rules. You're telling
me there aren't twelve people in Manhattan who wouldn't be able to put Donald Trump
away. It's it's highly possible. Okay. Now, I want to talk
about this as it relates to the election. The Republican Convention is July fifteenth.
We are at April seventeenth. All right, what if Trump's convicted?
And again, I'm not saying it should happen. I think it manifestly should
not. I think the charges against him are weak. I don't think they
are backed up by the evidence. I don't think the crimes. I don't
think his alleged conduct even matches up with the the alleged crime. I don't
think that his falsification of business records was fraudulent. It didn't builk anyone out
of money. It didn't cheat the government out of money. If anything,
the government got more tax money out of it. Because basically it was Donald
Trump characterizing repayment of a loan to Michael Cohen. So Michael Cohen pays Stormy
Daniel's money, not to tell her story, Trump repays Michael Cohen. Instead
of listing the payment as repayment of a loan, he characterizes it as payment
of legal fees to Michael Cohen, which it manifestly was not. Now that's
not true. Is statement of what the payments are. But it wasn't in
furtherance of fraud in any way. Fraud is lying for money. There was
no material advantage that anyone was getting out of that, and it was a
payment that happened after the election was over. Trump didn't win the election because
he misstated on that payment form that this was paying off alone versus paying off
legal fees. Okay, And that's I think the critical thing, one of
the critical things in all this why this is weak. The crime was not
doing anything to further Trump's electoral chances. The crime was saying that this payment
was paying legal fees rather than paying off alone. That crime didn't further Trump's
electoral chances. That crime only happened in twenty seventeen after Trump had already won.
Okay, So that crime that he's charged with is not furthering his electoral
chances, which already happened. Okay. So and so that's that's I think
the core of this why I think Trump's one of many reasons really why I
don't think Trump actually committed a crime here. And by the way, I'm
not as a legal commentator. I'm not saying everything Trump has done is clean
and pure as the wind driven snow, or that some of the charges he's
facing aren't strong than others. I think the federal charges he's gonna face for
mishandling classified documents, I think those are pretty strong. I think everything else
pretty much is bunco but at least that one, those are strong charges.
So just in case someone's like, oh, you're just a Trump apologist.
You're just gonna wave off everything Trump does. No, I'm not waving off
everything Trump does. I just don't think this was I don't think the allegations
made against him here, I don't think he is guilty of that kind of
a crime. I don't think. So that doesn't mean that a New York
jury can't convict him, though, And if they do convict him and he's
you know, years in jail, or is the exposure that he has.
These are felonies that he's charged with here. Felony means a crime that is
punishable by a year or more in jail. Okay, so Donald Trump could
go to jail and it's New York state crime, so he can't pardon himself.
So what do Republicans do at the convention? Trump has already as far
as Republican primary voters are concerned, that's over. Trump already won the primary,
all right, He's already secured enough delegates, He's already won enough states
to secure the primary. So what happens at the Republican convention. Well,
the Republican convention is being run by ultra Trump loyalists. Okay, he's got
Lara Trump has the head of the RNC, and Chris Lachivita, who it's
a longtime super Trump loyalist who's running the actual convention itself. Now with the
Republican Convention, there's a little less wiggle room than in the Democrat convention.
Okay, Republican delegates are bound to vote for the person who has won in
the Democrat convention. It's actually a little easier to weasel out of. You
don't necessarily have to. You ought to vote for the person who won your
state. So if if Joe Biden in the Democrat primary wins Iowa and you're
an Iowa Democrat delegate going to the Democrat convention, which I can't remember where
it is, I think it's in Chicago this year, you go to the
Democrat convention, you cast your delegate vote for Joe Biden. Well, you
don't have to do so, you ought to do so, but you do
actually have some discretion to not cast a firm Republican delegates don't have that leeway.
When they get to the convention. They got to cast their first vote
for Donald Trump. Now it's a parliamentary The convention can change its rules on
the spot, and I guess I just have to ask the question if Donald
Trump is actually in a jail cell, he's there and he ain't getting out
anytime soon. Maybe, you know, maybe he has an appeal of the
case. But if he's actually in a jail cell, do we just continue?
How can he campaign? How can he function? Do we just make
it donald Trump picks his vice presidential candidate and that person is going around the
country stumping for him. I mean, are we gonna just lose the election
because Donald Trump is locked in a jail cell? Or can the convention make
a choice to pick somebody else? Now, there's a piece from the AP
that basically says the Republican Convention rules don't really have a lot of rules laying
out what, you know, what's going to happen or what could happen in
the event that Trump can that Trump is convicted and is in a jail cell.
Now, one of the things this story is the story from the AP,
and it's sort of laying out stuff about the different Republican Convention rules.
One of the things it says is at next year's convention, which starts July
fifteenth in Milwaukee, there will be opportunities to tweak the rules when they are
adopted, or to suspend them, which can require two thirds of delegates to
approve on a vote. It's a parliamentary body, said Benjamin Ginsberg, or
Republican election lawyer. It can always work its will if it wants to one
way or another. Such last minute maneuvers are difficult to organize, and there
are a few current signs that delegates might look for another option, even with
Trump's criminal cases looming. They're all going to be chosen at contests in which
people are voting for, and I think they're unlikely if he wins the primary
to change up because of a court case. Ginsberg said. The Trump campaign
issued a preemptive warning anyway, Now, this was a piece written in uh,
this was four months ago, so this is before Ronald McDaniel was pushed
out and Lara Trump came in. Here's the quote though, from Chris Lachivita,
who is now who currently is running the Republican Convention. Chris Lacivita says
any attempt by any swamp rat, by any Washington DC swamp rat, to
mess with the rules will be summarily crushed by those of us that know how
to run conventions and he's the guy running the convention. He was a senior
consultant in charge of rules and floor operations for the RNC in twenty sixteen,
a year when some Trump opponents consider challenging him at the convention. So he's
basically saying, no, there's not going to be a challenge. And I
guess I just got asked the question. I mean, even of people who
are total Trump loyalists, how can Trump effectively run if he is in jail?
How can we expect any swing voter to vote for him? If he's
literally in jail. Do we just run his vice presidential candidate and that person
goes around Do we really expect someone to vote for that person? Or do
we have to switch it up at the convention? And when we return,
I want to talk about how I think this was the plan for Democrats all
along. Next on the John Girardi Show, Donald Trump's criminal trial could be
starting up. The jury selections already started, jury selections going faster than people
anticipated. The actual trial could get, you know, actually hearing witnesses and
rather than just doing the jury selection part. That could start as soon,
maybe even as Monday. And again, I think the charges are weak I
think it's certainly possible that there could be a hung jury that Trump could get
acquitted. I think it's also though possible he could get convicted. It's just
because of the jury pool. It's Manhattan, you know, this is not
Clovis, California. These are you know, Manhattan nights are pretty liberal.
It's not crazy to me to think that you couldn't find twelve people who don't
like Donald Trump very much and are willing to convict him of basically anything.
And as I've said, if he's convicted, he's going to jail, and
he can't get out, all right, not unless a Republican governor gets elected
in New York. He's not getting out, all right. There's no pardon.
So what do Republicans do? Do we run a presidential candidate who is
literally sitting in jail? How does he campaign? You know, I don't
know what leeway inmates in New York State penitentiaries have to tweet or to use
social media. I doubt it's a ton of leeway. Do we just run
whomever Trump picks as his vice presidential pick, whom he hasn't picked yet.
Does the Republican convention switch it out? My fear is that this is precisely
the outcome that Democrats wanted all along. This was the plan. It was
to spend the first two years of the Biden administration investigating all these crimes and
then to launch these criminal trials against President Trump at the most maximally destructive times
possible, to initiate these criminal charges against Trump in order to anger Republican base
voters enough that they wanted to vote for Trump in the primaries. Now Trump
secured the nomination, and get him convicted where he has to sit in a
jail cell. If he's actually convicted, that's going to have a big impact
on the election. I mean, I know for Trump loyalists listening, it's
not going to impact their votes. It's going to impact the votes of a
lot of people in the middle who you know, who Trum needs them in
order to win. So I that has been my fear all along, is
that Trump would get these criminal charges against him. Most of them are bunk,
and indeed, this charge against him in Manhattan is total bunk. Okay.
If I were a juror on it, I would vote to acquit him.
If I were in the prosecutor's office, I would say why are you?
Why are we prosecuting this case? The prior District Attorney of Manhattan declined
to prosecute this case. The federal prosecutors in Manhattan declined to prosecute this case.
Federal elections officials didn't prosecute Trump for anything having to do with the hush
money payments he made to Stormy Daniels as an election crime. There quest there
are problems with is this is the initial crime actually correct? Is it within
the appropriate statute of limitations? Can New York State prosecutor prosecute someone for stuff
that relates to federal election law violations leged or an intent to commit federal election
law violations? That there are so many problems with this case. It is
such a week, such an embarrassingly weak charge, and the only person crazy
enough to bring it was Alvin Bragg, who is just this absolutely committed hardcore
lefty. With all that said, it's a jury trial. Twelve people could
decide, you know what, screw Donald Trump? Guilty, guilty on all
counts, go to jail for however many years? Thirty four felony counts,
four years a piece, Okay, you do the math. He's not getting
out, so I guess that's my fear is that this was the Democrat plan
all along, was to get Republicans to nominate Trump. Then Trump gets convicted,
then Republicans lose they for election. Now, if it's a hung jury,
you just need one of the twelve to say no. So maybe maybe
Trump gets out of it. But it's going to be a fascinating couple of
weeks here. That'll do it for John di already show see you next time
on Power Talk.