Two Attorneys Rank the Severity of Trump’s Indictments

With four ongoing criminal investigations, Donald Trump is the most indicted president in U. S. history. After years of defying unwritten norms, he will now be subject to a criminal justice system defined by norms and precedents. What does due process look like for a former president? Ken White is a former federal prosecutor, a practicing criminal defense lawyer and a co-host of the podcast “Serious Trouble.” He writes the popular newsletter The Popehat Report, extensively covering the ins and outs of criminal trials. Among the many commentators on Trump’s unprecedented legal troubles, White stands out for his “lawsplainers,” which analyze the gap between what the law says and what it actually does. This conversation walks through each of the four major criminal cases against Trump. Our guest host David French asks White why he loathes the overuse of the RICO statute and whether it was appropriately used in the Georgia election interference indictment. They also discuss the Florida judge whose “functionally lawless” decision halted parts of the Mar-a-Lago investigation, White’s view that prosecutors can get away with much more in state court than in federal court, how the district attorney in the Georgia case is approaching this “circuslike” indictment, why Trump’s legal intent is both more and less complicated than the public discourse suggests and much more. This episode was hosted by David French, a columnist at The New York Times. Previously, he was a senior editor and co-founder of The Dispatch and a contributing writer at The Atlantic. This episode contains strong language. Book Recommendations: Pax by Tom Holland The Shadow Docket by Stephen Vladeck The Enchanters by James Ellroy Thoughts? Guest suggestions? Email us at [email protected]. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs. This episode of “The Ezra Klein Show” was produced by Rollin Hu. Fact-checking by Michelle Harris, with Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld. Our senior editor is Annie-Rose Strasser. The show’s production team also includes Emefa Agawu and Kristin Lin. Original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser. And special thanks to Sonia Herrero and Isaac Jones.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:03Ezra Klein?

  From New York Times Opinion, this is the Ezra Klein Show.

• 0:22Ezra Klein?

  Hey, it is Ezra. I am on book leave, but our guest this week is my colleague, The Times opinion columnist David French, whose work I have learned a ton from and whose just way of comporting himself in public life I've often quite admired. He began his career as a lawyer. He has deployed with the US military. He's the author of many books, including Divided We Fall, America's Secession Threat, and How to Restore Our Nation. And I'm excited to see what he does here behind the mic. I hope you enjoy it, too.

• 0:55David French?

  I met Ken White the first day of law school. We bonded immediately. We were both Star Trek nerds. We were both already losing our hair. And we were both fascinated by criminal and constitutional law. Neither of us ever lost that fascination. And Ken went on to become one of the nation's most respected legal voices on both the criminal justice system and the First Amendment, which is why I wanted to have him on the show today. As much as I love to talk about free speech, this conversation is going to focus on criminal justice, specifically the four cases against Donald Trump. Most recently, we've had the sweeping Georgia indictment regarding Trump's efforts to overturn

• 1:35David French?

  the election. Before that, we had the more narrow federal January 6 case, which also focused not just on January 6, but Trump's efforts to overturn the election. And before then, we had the Florida case involving the handling of classified documents relating to the national defense. And last and least, we had the Stormy Daniels hush money case. Ken has unique insight into all these cases as a defense attorney and former federal prosecutor. He can dive into both the prosecution and defense strategies in all four cases against Trump. Where are they strong? Where are they weak? Has the prosecution or defense made any mistakes?

• 2:16David French?

  If you find Ken insightful, and I know you will, you can hear more from him on his own podcast, co-hosted by Josh Barrow, called Serious Trouble, and you can read him at his Substack, called The Popat Report. As always, you can email the show at ezra kline show at nytimes.com.

• 2:40David French?

  Ken White, welcome to the Ezra Klein Show. Thank you so much for having me, David. It's great to talk to you. Well, I'm really looking forward to this episode. And, you know, one of the goals is to help listeners be conversant in the big issues in each one of the criminal cases against Donald Trump. This is not about diving in deep, deep, deep into the details, because each of these cases is going to ultimately end up with the records running in the thousands of pages. There's going to be twists and turns. This is much more of a broader view. And we're going to be ambitious. We're going to walk through each one of the four major criminal cases against Trump in the reverse order of their filing. So we're going to start with Georgia, then we're going to go with Jack Smith January 6 case,

• 3:25David French?

  then we'll go with Jack Smith documents case out of Mar-a-Lago, and then we'll end up with the Bragg indictment out of Manhattan. And the goal is to hit, what are the big issues? What's the prosecution's sort of best case? What is the defense's best case? Which case is most dangerous to Donald Trump and why? So, Ken, let's start with Georgia. You have a career as a prosecutor, a federal prosecutor. You have a career in defense. You've been on both sides here. So I'm going to ask you to put on your both sides hat. And let's sort of start with Georgia. Talk a bit about how ambitious this case is and why. How is it that prosecutors may arguably have more flexibility here in the Georgia case than

• 4:10David French?

  maybe in the federal cases?

• 4:11Speaker 02

  Well, David, the Georgia RICO case is a lot more ambitious and a lot broader because they are very deliberately cobbling together a bunch of different conspiracies into one big charge. So that's, I guess, what RICO is designed to do, to allow prosecutors to take on organizations and groups of people that are doing diverse things wrong and tie it all into one charge or one set of charges. So what's really notable about the Georgia RICO indictment is how it takes a bunch of different, what you would normally call different conspiracies, to do different things allegedly wrong in connection with the election.

• 4:55Speaker 02

  People who are not interacting with each other. You know, when you and I were taking criminal law back in the last millennium, this would be described as different spokes on the wheel. Right. People who are completely disconnected from each other, all doing illegal things towards sort of a general goal. And that winds up putting together a lot of people who don't seem like they really go together in terms of what they're doing and putting together some pretty wildly different conduct, which is why you're seeing some very strong motions to sever out defendants in Georgia. That's one way the indictment there is different. The other way it's different is that it reflects a very different sensibility about the politics of it.

• 5:39Speaker 02

  So we'll talk more about the D.C. indictment by Jack Smith, but that one reflected a sensibility that we're going to very explicitly say some things Donald Trump was allowed to do and were legitimate, and that's fine, but these things were illegitimate. The Georgia RICO indictment just leans into everything, throws it all in the same pile, does not make much of an effort to explain or advocate about the distinction between legal politics and illegal fraud.

• 6:08David French?

  One question about the Georgia. So in RICO, you're somewhat famous online for many reasons. One of them is for loathing RICO. And maybe not necessarily loathing RICO, but loathing overuse of RICO. But there's some interesting distinctions here between Georgia RICO and federal RICO. Could you walk through some of these differences between the Georgia RICO statutes and the federal RICO statutes? And why the prosecutor here might have thought that RICO was in fact, an appropriate method for charging this case?

• 6:44Speaker 02

  So federal RICO, you know, originally designed to go after organized crime is very rule-bound, very picky, very complicated. So every crime or cause of action in a civil case has its elements, its building blocks, like the recipe for all the things you have to do to prove this particular crime. The RICO elements are extremely convoluted and lengthy. And few cases actually make it. And it's so common for civil litigants to bring civil RICO charges as sort of an exclamation point or basically an emoji. This is really serious. It's RICO, in fact. That many federal judges have special RICO orders. It's like, so you think it's RICO?

• 7:28Speaker 02

  Well, here's a sheet with 20 questions I have for you. By the time you're done answering them, it will show it's not RICO. So the federal RICO charges are characterized by how hard it is to prove and how complicated it is. And that's why you don't see it in a lot of federal cases, because there's so many more flexible and straightforward federal criminal tools. The Georgia statute is a different story. The Georgia courts have not imposed a lot of this sort of rule-bound elements type of approach. They've taken it more like a general conspiracy without a lot of complicated requirements. And a lot of the Georgia Court of Appeals opinions, considering RICO convictions, are kind of frighteningly,

• 8:13Speaker 02

  eh, kind of, that's what it sort of sounds like with the statutes about, you know, not imposing a lot of technical requirements on it. So that makes it very appealing as sort of a super conspiracy statute.

• 8:26Speaker 02

  As a result, it is used astoundingly broadly in Georgia. Rico is used in Georgia the way conspiracy is used in many other locations. And it's used in a way that I think, in my view, is intentional to make cases that are functionally impossible to defend. So you have cases that go on for months and months and months. You know how expensive litigation is, David, as well as anybody. And very few people can afford lawyers for months and months and months, let alone also not working because you're in trial. So you have things like this trial of the rapper Young Thug and some people accused of being in a gang with him.

• 9:10Speaker 02

  It's been going on for eight months, doesn't even have a jury picked yet. The case where Fulton County DA Fonny Willis went after a education cheating scandal. That was treated as a Rico in those trials. The one that went to trial went on for like six, seven months. So it allows the prosecutors to put together big, functionally impossible to defend cases.

• 9:34David French?

  So first, I want to ask you what you think about the wisdom of this charging approach in this case? Because one thing I think listeners need to know is that often prosecutors overcharge as a deliberate strategy, that they're gonna, as I've used this illustration before, they throw charges in an indictment like you might throw croutons on a salad, which then creates this incredible list of charges with lengthy prison sentences attached to convictions. And essentially, you take a defendant who may not have an enormous number of resources, as you noted, and you put them in this incredibly difficult box, which is if you go to trial

• 10:16David French?

  on this monster of an indictment, you cannot even begin to imagine the amount of jail time you could face. Or I have this little plea deal for you here that's a lot better, that you're not going to face nearly the kind of prison terms that you could potentially face with a jury, and we can just get all this settled and deal with this and move on to the next case. And that kind of approach isn't applicable here for Trump, maybe for the others, but for Trump, that's not applicable. So what do you, what do you think of the wisdom of this charging approach?

• 10:51Speaker 02

  I think there is definitely an element of politics here. So, you know, the DA of Fulton County is an elected position. There are political overtones to the whole thing. It's an ambitious DA. Those are the circumstances in which big ambitious cases get brought. I think that this is designed to be a case that is functionally impossible to be defended the way it's charged. You simply can't take 19 aggressive people with aggressive lawyers to trial on a giant case at once. It would go for years, particularly when you've got personalities like Rudy Giuliani and Donald Trump in the same indictment. That's just going to make it go even more circus-like. And the judge presiding over this has already basically pointed this out.

• 11:35Speaker 02

  So I think it's a great way, great's the wrong word, effective way for a prosecutor to coerce a lot of the smaller players in the case to plead guilty or even to cooperate, to flip. I think it's a great way to get on the scoreboard and to bring attention to the charges and eventually wind up with something less. I don't know if it's like if your purpose is to identify what Donald Trump did wrong and come up with a just result, if it's necessarily the right way. But this is a very typical state prosecutor tactic. Do you think there's an overreach here? Well, this is maybe partially a matter of style or taste, but I prefer the approach

• 12:20Speaker 02

  that Jack Smith took in DC to be very explicit about the things that Donald Trump did that were permissible and legal and part of legitimate politics and litigation, and then leaning into explaining very much what wasn't and identifying, calling those things out, as opposed to the approach Fonny Willis took, which is much more throw it all in there and call out everything and really not make an effort to kind of avoid the appearance of attacking protected speech, protected politics. So I think because all of this, you know, it's not a normal criminal case. This has historic implications. It's going to have a greatly exaggerated impact on the way Americans understand the legal system and criminal justice system and that type of thing.

• 13:05Speaker 02

  And so to kind of go this kitchen sink approach, to me, I think risks diminishing the credibility, the whole enterprise of holding Donald Trump accountable for things that he did that were illegal.

• 13:20David French?

  Now, there's another aspect of this case that I think is interesting, and that is, we've talked about the Rico aspect, but there's a lot of charges that are related to specific Georgia statutes that prohibit lying to public officials. And these Georgia statutes are different from the federal statutes that Jack Smith charged on January 6th. And it strikes me, Ken, and I'd love your thoughts on this, that these statutes are easier to prosecute. Because what they're essentially doing, if you look at some of these statutes, they essentially say this, if I lie to you, let's say you're a public official, and I lie to you about a material fact, and it's within your jurisdiction, on a matter within your jurisdiction.

• 14:05David French?

  So if you're the Secretary of State, and I'm lying to you about voter fraud, and I'm talking to you in your capacity as Secretary of State on a matter within your jurisdiction, I've committed a crime. I've committed a crime. I don't have to show that I had an intent, for example, to deprive someone of their civil rights, or an intent to defraud the federal government. It's just the lying about the material fact to a public official within their jurisdiction, crime. That seems to be, in my view, the absolute strongest element of this indictment.

• 14:37Speaker 02

  Well, sure. It's probably also the element that carries the lowest possible sentence of all the different charges, and rightly so, because we shouldn't heavily punish things that don't actually have a bad impact. I think you're right, and I think that the Georgia statute seems to have a very loose concept of materiality. That is, how much does your lie matter? And in both cases, it seems to be, is the lie the sort of thing that could hypothetically matter in a scenario we can imagine, which is pretty easy to prove. So, yeah, a lot of the smaller things, the lesser charges, are there that I think are going to be easier to prove, even given how loosey-goosey Georgia Rico is.

• 15:22Speaker 02

  That's one of the reasons that prosecutors throw those in a lot of the time, is you're looking for the jury to be sort of saying, okay, well, this big one's complicated, let's just compromise by convicting me on these easy ones and throwing out the big one, or something like that. And that's strategically why they do it a lot of the time.

• 15:43David French?

  So let's talk about this word that has been mentioned an enormous amount as soon as the January 6th prosecution started. Intent.

• 15:53Speaker 02

  Intent. Yes.

• 15:55David French?

  I think I've seen more Internet arguments about intent in the last, you know, two months than I'd seen in the preceding 20 years. But let's talk about the intent element in Georgia. And then by golly, we're going to talk about the intent element in the federal case. So if you're trying to describe, what is the intent that prosecutors are going to have to show in Georgia? How would you describe it? Both for the more simple statute that we just outlined and for sort of the RICO and bigger RICO and conspiracy charges. And then we'll, we'll table for a minute exactly the intent in the Jack Smith January 6 cases. But what's a brief summary of the intent element here in Georgia?

• 16:34Speaker 02

  So it really varies, charged, charge. On the false statement type of charges, you've got just a requirement that you knowingly lie. So you have to say something and know it's a lie. You don't necessarily have to have an intent that's fraudulent and intent to deceive. You just have to know that the thing you're saying is untrue. The RICO and conspiracy and some of the other things that sound more like obstruction are going to require some sort of specific wrongful intent and agreement to violate the law and agreement to do something wrong. So generally, the more sophisticated the crime, usually the more sophisticated the mental state.

• 17:18Speaker 02

  So some of the crimes are just going to have to show people knew they were lying. Others are going to have to show that they had fraudulent intent, the intent to deceive or defraud. And some, they're going to have to show that they intentionally joined an agreement to do something against the law, that they agreed to commit a crime. So it depends on the particular charge there.

• 17:40David French?

  So if we go, let's say, the simple lying charge. You don't have to prove that Trump knew he lost. Even if he genuinely thought he'd won, if he genuinely thought that Georgia was his, but if he's told a lie in making that case, he can be convicted. Whereas the more broader the conspiracy and the RICO charges, you're going to have to show some intent beyond a simple lie.

• 18:08Speaker 02

  Right, and this is something where I think that all of us who are in the business of being pundits and talking about all this have probably overcomplicated it a little bit. We've been talking about for years how hard it is to prove intent or knowledge in Donald Trump's case because of how he processes facts and how he views things and how he doesn't really sort of see lie from truth or distinguish it the way that we mortals do. But it's easy to overcomplicate this. You don't have to show that he knew he lost anything. You only have to show, even if he believed he won, that he pursued that goal through lies or through fraudulent means,

• 18:51Speaker 02

  that he tried to get people to violate their oaths of office, that he tried to get people to do things that were illegal or that he lied to them in the pursuit of that. That's much easier. It's easy because there's a big difference between the public narrative of what happened after the election and what these charges actually say. So even the Georgia indictment, which is much more ambitious and sweeping and considerably less subtle, kind of concedes that the point is the illegal way he went about it. The crime is not believing against all evidence that he won.

• 19:32Speaker 02

  The crime is pursuing that belief through fraud and lies.

• 19:38David French?

  Right. Yeah, there are two things that have kind of driven me crazy in the public conversation. One is the argument, we don't have to prove intent. Because I'm thinking, can... Just read the statutes. Now, what intent you have to prove varies from statute to statute. What do you have to show? That's one that drives me crazy, but another one is, well, oh, gosh, if we have to prove intent, then how can you possibly convict him? But intent elements are extremely common in criminal charges and prosecutors prove intent all the time. This is not a magic get out of jail card to say, no, I didn't mean it, or I didn't mean to tell a lie, you have to acquit me. Am I right in framing it like that? Or am I missing something?

• 20:21Speaker 02

  You are. A lot of what this reflects is this sort of public sensibility that Trump is so sort of norm shattering and outside of normal political practices that the normal doesn't apply and that he's just, there's also this perception that he's always skated and he's going to skate again, no matter what. But I think we're starting to see that sort of just plodding, methodical, putting on your case against him can work. We saw that in E. Jean Carroll's defamation case. We're seeing it in other instances. And yes, all the time prosecutors prove beyond a reasonable doubt intent when it's disputed. You know, the most common bread and butter federal charges of wire fraud and mail fraud

• 21:04Speaker 02

  require you to prove there's a fraudulent scheme, that you intended to do a fraudulent scheme. And where Trump is his own worst enemy is his tendency to talk a lot and say things a lot, which are now being brought to bear very effectively to help prove intent. So when you're talking about how do you prove that someone intended to do something, that they had fraudulent intent, you do it the same way. You decide whether your teenager is lying to you, right? You analyze what they say to you. And in the case of Trump, if you've got him saying something to Mike Pence, like the problem is you're too honest, then that's exactly the sort of thing you lead with, is they say, he knows that what he's doing is dishonest.

• 21:47Speaker 02

  So there are some things in the past that we've talked about that people wanted him to be prosecuted for, particularly during the Robert Mueller era, where the intent was going to be hard to do. But these things, he's talked his way into a lot of the evidence against him.

• 22:21David French?

  Let's move on to Jack Smith. It's a good logical next move. How would you sort of in a nutshell describe the distinction? What's different about the Jack Smith case versus the Fonny Willis case?

• 22:35Speaker 02

  The Jack Smith case in DC is brought by inexperienced federal prosecutor for federal court and it shows. Federal court is very different than state court. Much more formal generally prosecutors can still get away with a remarkable amount, but not as much as they can in state court. Federal judges are tougher taskmasters. To slightly overgeneralize, the court is more concerned with being rule-bound and with protecting constitutional rights. And it's probably the forum you'd often rather be in as a defendant. I'd certainly rather be defending the DC case than the Georgia case.

• 23:20Speaker 02

  So, Smith seems to be both more concerned with the fact that he's in federal court and he can't get away with as much and he has to be more careful of these distinctions. He also seems to be more explicitly concerned with the eyes of history being upon him and that type of thing, with making something that is more overtly avoiding the appearance of being deliberately political. Even though frankly, I think everyone who thinks it's political is going to no matter how you frame it and everyone who thinks it's not, it's going to think that no matter how you frame it. So it's narrower, it's more specific and there you've got this general conspiracy to defraud the United States. This is the plain vanilla conspiracy statute used all the time, but there's a clause in

• 24:05Speaker 02

  there, instead of just conspiring to violate a federal law, there's a clause for conspiring to defraud the United States and to cheat the US. And that's what he's going with here. He's going with a conspiracy to obstruct and actual obstruction and a conspiracy against civil rights. Some of these, people expressed surprise when Smith came out with them, thinking this is sort of, you know, very aggressive and forward in legal theory and really historically it's not. There are arguments on all of these for why. The law is wrong, but the law for the last century has fairly clearly shown that

• 24:45Speaker 02

  these are all theories that work, that you can defraud the United States by interfering with one of its proceedings by deceit, that you can obstruct an official proceeding by submitting fake things to it and things like that, and that you can have a conspiracy against rights through election fraud by trying to fraudulently interfere with accounting or processing of votes. You can argue that all those cases are wrong, that they interpret the statutes the wrong way, but I don't think you can seriously argue there isn't legal precedent for all these theories.

• 25:17David French?

  Yeah, I think that's a very key distinction because the arguments that I've seen from those who are defending Trump, if they're honest arguments, what they're saying is, I acknowledge the precedent is against us, but the precedent is bad precedent. And this current court would not, in fact, apply the law in the same way. That seems to be the core of the argument. But the fact remains that as of this moment, the precedent does indicate that each one of these charges is sort of solidly within historical practice.

• 25:53Speaker 02

  You know, you mentioned this whole thing about how we think the Supreme Court would go, being very central to the theories of the law, the critics of the D.C. indictment.

• 26:02David French?

  Right.

• 26:02Speaker 02

  And certainly, this is a conservative court. It has overturned a lot of precedents. I do not see this court as being super eager to help Donald Trump in these sorts of situations. This court did not do the things that Trump partisans hoped it would in connection with the 2020 election or any of the subsequent litigation. And the kinds of theories people are sort of, I would call it wish casting, that the court will step in and narrow some of this federal criminal law, is not actually the way this court Is generally working. They've stuck their neck out for some things that are Trump

• 26:43Speaker 02

  policy goals, but not so much for Trump as a litigant. I think that the faith that they're going to do that is misplaced.

• 26:51David French?

  Before we leave the January 6 cases, let's talk a little bit about this attempt to remove some of these cases from state court to federal court. You very helpfully outlined some of the differences in practice in federal court and why defendants often like to be in federal court versus state court. But let's walk through this removal argument in Georgia.

• 27:15Speaker 02

  Sure. Well, removal is bringing a case that was filed in state court into federal court. And criminal removal, there's a statute and its origins are uncertain. Even the cases that talk about it say, we're not entirely sure what the point of this is, but it seems to be there wants to be some sort of bulwark to keep the state from interfering with federal business through criminal prosecutions. So there's a statute that says a federal official charged with a crime in state court can remove it to federal court and they'll have a burden to keep it there of showing that they were a federal official, that the things they're

• 27:56Speaker 02

  charged with are of or relating to the color of their office, to their official business, and that they have a colorable that is plausible federal defense, a defense under federal law. And so Mark Meadows is the first one ruling to have his effort in this case assessed by the federal judge who's looking at it. And Judge Jones has kind of got something of a wide open field here. A lot of these issues have not been thoroughly litigated.

• 28:26David French?

  Right.

• 28:27Speaker 02

  And he asks sort of like, almost like a philosophical question. It's like, well, what is the heart of the Georgia case? What is it that has to be related to your office? And where he kind of comes out is the heart of the Georgia case is the allegation of a RICO conspiracy and agreement to violate the law. Particular pieces of evidence that aren't themselves crimes are not the heart of the case. And therefore, even if one or two of those are things that arguably are related to Mark Meadows' color of office, that doesn't make the whole thing related to his color of office. He's not supposed to be doing political things. That's not his function and so on. This could go either way in front of the 11th Circuit.

• 29:10David French?

  Yeah.

• 29:10Speaker 02

  It could even go either way in front of the United States Supreme Court. You've got all these competing interests. You've got these ideas of federalism, where generally federal courts don't interfere with state courts, particularly in criminal cases. On the other hand, you've got the supremacy clause and the idea that the federal law reigns supreme, and then you throw all the politics on top of that. And I have no idea where this is going to come out.

• 29:33David French?

  And one thing that I think is important to emphasize is even though if this case is successfully removed, it's still going to be prosecuted under the Georgia state statutes and under Georgia state precedent. So all of the Georgia state laws that are at issue in the case are still going to be the laws at issue in the case. Now, there are going to be differences in the rules of the federal court, and there's going to be differences in the jury pool that you draw in the federal court. But they're still prosecuting these state criminal offenses in that federal court, even if it's removed.

• 30:07Speaker 02

  They are unless the judge determines that there's a federal defense that precludes it. So the precedent seems to suggest that if the judge determines that there's a federal immunity issue and holds like a hearing and resolves disputed facts and that type of thing, then that could be in effect dismissing the case. But again, that's a heavy lift for Mark Meadows and the others here because it's hard to explain why this stuff is actually related to their job and why it's necessary and proper.

• 30:55David French?

  Let's move on from January 6 to documents. And I'll set it up like this. It's really interesting to me, if you've seen all of the back and forth of all of the various legal experts weighing in on all of the aspects of this case, even though there's a lot of disagreement, I've seen some general agreement that goes like this. The Manhattan case involving the Stormy Daniels hush money payments is the weakest case. A lot of fights over whether the Georgia case or the Jack Smith January 6 case is more dangerous to Trump, where I kind of literally go back and forth on that in my own mind as to which one is sort of the more dangerous case for Trump. And then there's this consensus where you sort of bring up the documents case and they go, oh yeah, that one's the strongest

• 31:40David French?

  case. And it's really hard to find somebody who would say anything other than that. Where do you stand on this sort of consensus that the documents case sort of is in a class by itself?

• 31:51Speaker 02

  It is in a class by itself because it's a very different set of facts and because Donald Trump in absolutely classic client form has absolutely sunk himself with his mouth by repeatedly saying things that undermine any potential defense he has there, saying and doing things. So, you know, he is, he is the classic client who cannot keep his mouth shut, who keeps saying things that lock him into stories, that preclude defenses, that admit things, stuff like that. On the other hand, the countervailing factor is that it is in Florida with a different jury pool where the hope of at least getting one juror to hang the jury seems to be much more

• 32:32Speaker 02

  plausible. And in Judge Eileen Cannon, he has a judge who has previously been willing to really go out on a limb for him to a notable extent, you know, one of someone he appointed, someone whose decisions in the case where she basically shut down the investigation after the search warrant of Mar-a-Lago were very widely seen as being without sound basis in law. And, you know, draw from that what you will. So, those things protect him there. But in terms of which case I think is like the simplest and strongest, the combo, that probably is the documents case. There is widespread consensus that his

• 33:18Speaker 02

  Defenses that he can, you know, declassify things with his mind or that they're automatically declassified when when he takes them, that those are nonsense. They are not taken very seriously, except by the most partisan commentators. And the record of the things he said in front of other people, his braggadocio, his throwing around of papers, that type of thing, is just great intent evidence. So I think that case is extremely dangerous to him. And really, what's standing between him and probable conviction in that one is a Florida jury and Judge Eileen Cannon.

• 34:00David French?

  Well, let's talk about the judge for a minute. You were very polite in your description of, I believe you said, no sound basis. At the risk of using another legal term of art, I would say that her original decision that essentially halted the parts of the Mar-a-Lago investigation was either Bonkers Town or in the suburbs of Bonkers Town, it was so bad. And in fact, it was sternly rebuked by the Court of Appeals.

• 34:26Speaker 02

  Yeah, it was functionally lawless. And the advocacy that led to it by Trump's attorneys was so terrible that it was that much more notable. The arguments were terrible. And then the way she accepted them and even did some other things they hadn't even asked for were terrible. And federal courts of appeal are not very emotive, usually. It's bad news when they are. But you can read between the lines, the tone of an opinion. And the opinion overturning her was fairly brutal in its explicitness. So this is a judge who has basically gone way out on her own, doing crazy things for Trump.

• 35:09David French?

  You've practiced in front of a lot of different district judges. I've practiced in front of a lot of different district judges and they'll have varying temperaments. But one thing that I have seen is that if you're a district judge who's operating within the broad norms of the profession, once a court of appeals has absolutely smacked one of your rulings down and done so reading between the lines in a way that is almost screaming in all caps, in my experiences, so long as the district judge is still within those broad norms of the legal profession, in some ways, they're going to be more careful. Because at this point, they're in a, almost a legacy moment here.

• 35:52David French?

  And so you saw recently Judge Cannon just basically granted the prosecution's protective order motion in the case, appears to be adopting a more careful approach to this. How much do you think that that really brutal court of appeals smackdown in the documents subpoena and the search litigation, realistically, can we expect a more careful Judge Cannon as a result of that judicial rebuke?

• 36:18Speaker 02

  I think there's a number of factors that lead to a more careful Judge Cannon. First of all, there's just experience. She is, and you know, we can probably share this feeling, preposterously young to be a federal judge. I think she's only 42 and that's very young to wield that sort of power. And a lot of the time, when you see a judge, a person like that becoming a federal judge, you see some sort of stumbling around at first. When you see, you know, corporate lawyers or other lawyers whose practice is not so much trial practice, becoming a federal judge, you see an acclimation period. But often, they become very good judges because they learn this stuff and they learn it as a judge and they become very careful about it.

• 37:01Speaker 02

  Also, there's a community of judges and lawyers that is different than the political community. And so the experience of being a federal judge appears to be broadly speaking, sort of moderating. It tends to move people towards that more professional consensus middle in terms of things. And part of that is your reputation and how the court of appeal treats you and that type of thing. But part of it's just the community that you're part of, the judges you interact with, you go to for advice, that type of thing. Also, judges are human and a lot of the time, like if a party leads a judge into error, And they get smacked down. Judges will sort of tend to resent that party a little

• 37:43Speaker 02

  bit. They will often start thinking, well, you know, the last time I looked, listened to you, you know, the 11th Circuit basically said in judicial terms, I was being an idiot. So why should I listen to you? So I think all those factors will tend to move her towards the center. That said, a lot of my commentary about cases and stuff is saying, this thing you think is extraordinary is not extraordinary. You know, this judge yelling at the prosecution is not in the tank for the defense. That's just the way judges are. This judge doing this is actually doing what judges all the time. It's not such a big deal. Calm down. I can't really say that about Judge Cannon based on that earlier case. That was remarkable,

• 38:28Speaker 02

  totally outside of norms to extent that makes me very concerned about the way she's going to approach the rest of the case. And it would be difficult to overstate how easy it is for a federal judge to tank a case if they want to.

• 38:40David French?

  Yeah, that's one thing I've tried to communicate to people about that initial Judge Cannon ruling. I was gobsmacked when I read it.

• 38:49Speaker 02

  Right.

• 38:50David French?

  I mean, literally just absolutely gobsmacked. And I'm also much like you, Ken. I spend a lot of time saying, whoa, hold on, calm down. Everything is not running out of control. What you're watching is the system in process, and this is what the system looks like. We're within norms. But that ruling was well outside of legal norms.

• 39:14Speaker 02

  Yes.

• 39:15David French?

  Now, she has not issued rulings since then that have been outside norms. The trial date that she set seems pretty reasonable to me. The protective order that she just outlined seems pretty reasonable to me. So since then, she seems to have pulled in a bit. But you're absolutely correct. We shared the same view. But let me do a little detour here because when you're talking about judicial norms, the Trump team has filed a motion for the judge in the January 6 documents case to recuse herself based on statements that she made in other January 6 cases. And I know you've looked at this, this is the federal January 6 case.

• 39:57David French?

  What are your thoughts on the Trump team's recusal motion and what the judge had said in that case?

• 40:02Speaker 02

  I don't think it will succeed or that it should. And I think it illustrates the difference between what people think the rules for recusal are and what they actually are. Federal recusal is extremely narrow. And in general, there are only two ways you get there. One way is where the judge's comments are simply so historically extreme and out of bounds that no one can possibly take them seriously as a neutral judge. The other is if it's from an extrajudicial source, like, you know, the defendant is their next door neighbor and they hate them, that type of thing, from extrajudicial reasons. Here, Judge Chutkin, in some of the January 6 cases where defendants were saying basically,

• 40:47Speaker 02

  "Well, I was there because of Trump," made comments to the effect of, "Well, you know, the person who inspired you to do this stuff isn't in jail, maybe he should be." So you can certainly see why that seems to show some prejudging of Donald Trump. And you could imagine a system where you argue that makes her ineligible because she's expressed that. But it's not extrajudicial. So she's come to that conclusion based on the evidence before her in court in related cases. And that generally is not a basis for recusal. And that's why, you know, a judge can hear a bunch of related cases without having to recuse themselves.

• 41:27Speaker 02

  The thing is, recusal is a doctrine largely developed by judges and administered by judges. And they understand each other. And judges, how can I put this, they run their mouth a lot. Okay? And you can't always consume what they say on a explicit or literal, any more than you can with Trump. You know, federal judges emote as much as one's, you know, the proverbial uncle at Thanksgiving. And judges understand that. And so they don't take each other anymore seriously with that type of rhetoric. They don't see it as extreme. They see it as just sort of, you know, you got a black robe. You're sitting up there and everyone's listening to you. You're going to say what's on your mind.

• 42:12Speaker 02

  And that's the way it comes out.

• 42:14David French?

  Yeah.

• 42:16David French?

  It is a unique experience and lawyers who are listening to this will relate to the experience on being on the receiving end of a judge who is venting. And it's really unlike almost any other venting experience that you'll ever endure. Because you really are limited in your ability as a practical matter to vent back.

• 42:39Speaker 02

  But you know what? Once you understand that's just kind of the way they are, you get used to it. It's not such a big deal anymore.

• 42:45David French?

  Yeah, exactly. All right, well, let's end this with a discussion of the first indictment brought against Trump, and that's the Bragg state indictment, state court indictment related to the Stormy Daniels hush money payments. And again, it is really remarkable with all of the various competing legal arguments in a hyperpolarized nation, there is an absolute consensus that this is the weakest of the cases.

• 43:12Speaker 02

  And rightly so.

• 43:13David French?

  Right. And why is that?

• 43:15Speaker 02

  So, I mean, there are a lot of sort of rarely enforced, scarily flexible laws out there that are rarely charged, but could be if a prosecutor just has it in for you and wants to find some way to do it. And this falsifying business records charge in New York seems to be such a thing. And the case is characterized by the way they went about it. You know, they did these tons and tons of counts, just gratuitously. The, what is it, 34 counts of falsifying business records for the concept that false notations were made in various types of check ledgers and things like that, indicating

• 43:59Speaker 02

  that money going to Michael Cohen was for legal services as opposed to a way to reimburse hush money to an adult actress.

• 44:10Speaker 02

  And in addition to kind of being and you can bleep this if it's inappropriate, widely considered to be chicken shit, which it kind of is, it's, you know, a petty thing that they've made into a huge thing and put 34 counts of, I think it's extraordinarily hard to prove Trump's individual understanding or knowledge of it. Trump does not strike me as a generally accepted accounting principles guy. The thought that he personally directed or was involved in personally directing the way payments would be classified and did

• 44:50Speaker 02

  so with fraudulent intent seems like a much bigger lift than saying that, you know, he lied to the Georgia Attorney General or something like that, Secretary of State or something like that. It's complicated, it's nitpicky, it's not the sort of thing you would really see him getting his hands dirty with. It's not the sort of thing you would even necessarily see him as understanding very well. So I think that it's a flailing around trying to find a theory in which they could go after him because they're so mad at him, they've put so many resources in trying to get him. So they find this, okay, well, he treated this hush money as something that actually wasn't, and you know, let's say that. So it kind of comes off as desperate to me. Certainly when it seemed at the time as if

• 45:34Speaker 02

  it might be the only criminal consequences of his long pattern of illegal behavior, it was very disappointing. Now I think it's kind of more embarrassing when you compare it to the other cases.

• 45:47David French?

  Yeah, you know, and just to sort of like nail down the specifics, it really depends on a two-step process because there's the step one, which is, did he falsify business records? Which there's a pretty strong case that business records, and I'm going to use sort of passive voice here, were falsified. But that's a misdemeanor.

• 46:08Speaker 02

  Right.

• 46:08David French?

  And not only is it just a misdemeanor, it's also a misdemeanor that's probably time barred. It's probably, we're probably past the statute of limitations. So to make this the more serious case, you have To show that these business records were falsified in furtherance of the commission of another crime.

• 46:26Speaker 02

  Right.

• 46:27David French?

  And so you have to show that there's another crime in play here. And that isn't really specified with that much clarity, at least in the initial charging documents. And that's where they're just gonna have a problem, a proof problem in that case regarding this other extra step that is the one that A, turns it from a misdemeanor into felony, and B, at least stabs at dealing with some of the statute of limitations issues.

• 46:56Speaker 02

  Well, the statute of limitations, as I understand it, David, that their theory is that basically there's a New York statute where if you're out of state consistently for a period of time, the statute's told. And so he was in Washington and Mar-a-Lago, and I think that's their theory. So from what I've heard, generally, that's not considered to be his better defense. But yeah, I agree with you that the extra step of making it into a felony by having to connect it to some other crime is a problem. Apparently, they're thinking maybe it's campaign finance fraud, which has even more exacting intent standards. Often, you have to know you're violating the law there. Good luck proving that. Or it might be under this weird New York statute about corrupting an election, or whatever it is.

• 47:39Speaker 02

  Those are big lists, but I just, to the very basic idea, I think it's very hard to show that he is personally directing how this is gonna be treated, or that he cares.

• 47:48David French?

  Right.

• 47:49Speaker 02

  Maybe they have Michael Cohen testifying. He's gonna be a terrible witness, his rehabilitation to her notwithstanding. Maybe they've got some of the accountants putting Trump in there, but yeah, I mean, again, you've got a New York jury, so maybe they're more adverse to Trump. You've got state court, more loosey-goosey with the rules. But still, it's no question it's the weakest.

• 48:13David French?

  Okay, we've talked about all of these cases. We have at least three trial dates right now dating before the election. And so let's just wind up with a brief discussion of the trial dates.

• 48:24Speaker 02

  Sure.

• 48:25David French?

  How many of these trial dates do you think will stick? In your experience, when you see an initial trial date set like we have seen in some of these cases, how often do these initial trial dates stick? Is it actually the case that we'll have multiple criminal cases of Donald Trump in the height of the campaign? Just transparently, and where I'm coming from this, I have been dubious that we will have all of these things unfold in 2024.

• 48:53Speaker 02

  I am also dubious they will all unfold.

• 48:55David French?

  Right.

• 48:56Speaker 02

  I think, given the way the judge's attitude, there's an excellent chance that at least one will. So Judge Chutkin in DC and Judge Cannon in Florida have announced trial dates that are, in my view, pretty aggressive. Much more aggressive than I would expect for white collar cases of this complexity. So it is very routine for white collar criminal cases to take a very long time to go to trial. And the excuse is usually, but Your Honor, there's millions of documents and so forth. But these are complex cases with tons of witnesses and players.

• 49:34Speaker 02

  So the relatively early in 2024 dates we've gotten in those two federal cases are aggressive. And I think suggests that those judges are not going to let them delay forever. Some federal judges are big believers in, you know, what's called the rocket docket. I got to keep my docket moving, so I don't care what you need or what you want, you're going to trial. And that's often used basically to coerce people into settle civil cases or plead guilty in criminal cases. But that suggests to me that the federal cases are more likely to move forward. I'd say particularly the DC one, given Judge Chutkin's attitude there. But in Georgia, it may be these get split up into a bunch of different little cases.

• 50:18Speaker 02

  I think some of the ones related to Trump are going to go to trial before the election. I'm not sure if Trump's himself will, and that's going to, we're going to see. Once the judge starts ruling on his own motions as opposed to his co-defendants motions, where that's likely to go. But I think it is strongly likely that at least one of these criminal cases is going to go to trial before the election, maybe two or three.

• 50:45David French?

  It's also possible that all four are booted until after the election, which would present in a very stark way, this idea that part of what's at issue in the election is ultimately whether he has a practical matter gets tried at all, at least in the next term. As the head of the executive branch, which includes the DOJ, if he wins, he could direct the DOJ to drop all the cases against him. Just wipe these away.

• 51:16Speaker 02

  Or he could pardon himself.

• 51:17David French?

  Right.

• 51:18Speaker 02

  Which I suspect would be his move. There's controversy over whether that's legal, but it's almost certainly a political dispute that's not justiciable by the courts. So yeah, that's very stark. He can't, of course, pardon himself on the state claims, but he could get rid of the federal ones. And I think the federal ones are probably the two most dangerous cases for him.

• 51:41David French?

  All right, Ken, at the ending of every Ezra Klein Show, there are three book recommendations that we ask our guests to make. So what three books are you recommending to listeners today?

• 51:51Speaker 02

  So I'm recommending three very different books. One is Pax, P-A-X, by Tom Holland, not Spider-Man, the British popular historian, writing about the peak of the Roman Empire. And he's, he's got a fantastic narrative voice, and he's one of those historians who really has a way to make his enthusiasm for the subject matter and the period jump off the page. The next one is Shadow Docket by Professor Steve Vladek. I'm sure you've read this one, David, and this is the one about how the Supreme Court's motion docket, how ruling on special emergency motions, how the difference it can make in the law in ways that are not immediately apparent to us, and sort of these big changes that

• 52:35Speaker 02

  are made kind of behind the scenes in a way that are not consumed the same way as, you know, opinions in cases.

• 52:44Speaker 02

  And then finally, the third, one of my favorite authors, James Ellroy, one of the most pessimistic and darkest authors about America and what it's like. His newest book is The Enchanters. He's got this infectiously pessimistic, down-on-everything voice. He's kind of like, he's to Dragnet and, you know, the notion of cops, the way, you know, Game of Thrones is to J.R.R. Tolkien. He's sort of like the seedy side of it all exposed. He uses language in a really interesting way, and I can't resist him.

• 53:23David French?

  Thank you so much for joining the Ezra Klein Show. Thanks for sharing your expertise, and especially from my standpoint, it's great to see you and it's great to chat with you. So thanks for joining me.

• 53:35Speaker 02

  It's good to see you again, too, David. It's like the, like the fall of 1991 all over again, and first learning some of this stuff.

• 53:44David French?

  All over again. Oh, those glorious days when we had hair on our heads.

• 53:49Speaker 02

  Exactly.

• 53:51David French?

  Thank you, Ken.

• 53:52Speaker 02

  Thank you.

• 54:06David French?

  This episode of the Ezra Klein Show was produced by Roland Hu, fact checking by Michelle Harris, with Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld. Our senior editor is Annie Rose Strasser. The show's production team also includes Emma F. Agawu and Kristin Lin. Original music by Isaac Jones. Audience strategy by Christina Samulski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie Rose Strasser.