It’s a Strict Scrutiny and Pod Save America crossover! Jon, Jon, and Tommy get together with Leah  and Kate  to talk about Donald Trump’s arraignment in Manhattan criminal court, and the legal jeopardy he faces now that he’s been charged with 34 felony counts.

TRANSCRIPT

Jon Favreau Welcome to a special arraignment episode of Pod Save America. I’m Jon Favreau.

Jon Lovett I’m Jon Lovett from.

Tommy Vietor Tommy, Utah.

Jon Favreau And we are lucky to be joined by Leah Litman and Kate Shaw, two of the brilliant legal experts from the award winning Strict Scrutiny podcast. Great crossover. Welcome to the pod.

Kate Shaw Thanks for having us, guys.

Leah Litman It’s great to be here.

Tommy Vietor Thank God you’re here.

Jon Favreau All right. What a day.

Jon Lovett Guys, I couldn’t carry all the legal arguments myself.

Jon Favreau Okay. So Donald Trump surrendered to authorities in New York and entered a not guilty plea to 34 counts of filing false business records in the first degree felony charges that carry a maximum of four years in prison for each count. Manhattan District Attorney Alvin Bragg accused Trump of orchestrating a scheme with others to influence the 2016 presidential election that involved paying money to porn star Stormy Daniels, Playboy model Karen McDougal, and a doorman who claimed to have a story about Trump fathering a child out of wedlock. In making those payments, Bragg said that Trump, quote, violated election laws made and caused false business records and mischaracterized the payments for tax purposes. Okay, Leah, we’ve been hearing about how District Attorney Bragg’s case might be based on a novel legal theory. Now that we know what the actual charges are. Can you break down what that theory is?

Leah Litman So it’s actually not all based on a novel legal theory, but the novel legal theory is, I think, a reference to this idea that the state charge here is a misdemeanor as a default. But falsifying business records is a felony when it’s done with the intent to commit some other crime. And here one of the other possible other federal crimes that he’s falsifying business records to conceal is a federal crime. And so the kind of uncertain or unknown legal theory or new legal theory is this idea that the separate crime you can be falsifying your business records to conceal is a federal crime rather than a state crime. But this entire case isn’t actually premised on that theory, because some of the other crimes that the statement of facts and the press conference indicated the D.A. is saying that Trump was trying to conceal are state crimes, you know, violations of state election law as well as state tax law. But there’s also just this idea that like because it’s a new legal theory that necessarily means it’s wrong or bad or it was a problem to bring this case. But the reality is, is that new sets of facts and new ways of committing crimes will sometimes generate new legal theories. And that doesn’t mean the theory is wrong. I mean, I don’t know how many New York businessmen are in the habit of falsifying business records to conceal extramarital affairs so that they can win a presidential election. In fact, I’m having some difficulties imagining, like other people for whom that could even plausibly be true. So it’s just not that surprising that we haven’t seen this novel legal theory tested before.

Jon Lovett I think, first of all, shame on you for a racing unfaithful female business people having affairs, and.

Leah Litman It’s always the men. See, this is why we never do episodes with more than two men on the record.

Jon Favreau So I heard some people arguing that. So in the statement of facts that was released, they released the indictment and they released the statement of facts, which is more interesting and sort of tells the whole story. Bragg did not specify sort of the state crimes that he thinks Trump was trying to conceal with the falsified business records. Later in the press conference, he said it violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means. $130,000 wire payment exceeded the federal campaign contribution cap in the false statements in Ames books violated New York law. Why do you think he A didn’t include all of that in the statement of facts and B seems to be suggesting that there are both federal crimes and state crimes that Trump was trying to conceal with the falsified business records?

Kate Shaw Right. So it turns out, as a matter of New York State practice, when you’re taking this falsification misdemeanor and bumping it up to a felony because it’s being committed in furtherance of some other crime, you actually don’t need in the indictment papers to charge the other crime. And you actually don’t, it turns out, need to specify the other crime. Bragg said that very clearly at the top of the press conference today. So I think what he was doing here was actually pretty consistent with New York state criminal practice. But, of course, these documents are being scrutinized in a way that distinguishes them from ordinary charging documents. And so I think there was a lot, you know, as Leah’s answer just kind of alluded to a lot of like garment and hair rending about the failure to really specify the state and federal crimes that these falsification offenses may have been committed in furtherance of. But, of course, there are broad references that I am sure will be developed as this case proceeds to both federal campaign finance violations to this state election crime, which is based. They just conspiring to advantage or disadvantage a candidate? And that’s like a crime on the books at the New York State crime and the scheme that’s detailed both in the indictment, but obviously, you know, with more kind of color and detail in the statement of facts is obviously about advantaging a candidate for president, Donald Trump. So the face of the New York state statute seems to be pretty clearly satisfied. And then there also is that there were references made to state tax offenses. So I don’t have any great insight into why there wasn’t more detail provided, except that maybe it gives, you know, adversaries and viewers and readers the opportunity to pick apart something at a very early stage when you actually don’t have any legal obligation to show all of your cards. So that’s my best guess at why we have general references, but not specific detailed descriptions of the underlying offenses.

Tommy Vietor QUESTION For for either of you, I mean, coming into today, there was a lot of handwringing about perceived weakness of this case. Some of it was in comparison to some of the other investigations into Donald Trump and the severity of, say, subverting our democracy. But setting that aside, now that we’ve seen all the specifics in this indictment, we’ve seen the statement of facts and the various documentation that was released today, how do you feel, generally speaking, about the strength or weakness of this case?

Leah Litman You know, I feel like it’s pretty clear that they have established a New York misdemeanor falsification of business records. And then I also think we learned at least one additional thing from the statement of facts and the indictment, which is they apparently do have some texts and email exchanges, I think, between Michael Cohen and other people that suggest they wanted to delay having to make the payments until after the election in the hope that they wouldn’t ever have to make them. And that’s some pretty persuasive evidence that they were doing all of this to influence the election. And that could go a considerable way to proving that they were falsifying business records in order to conceal or commit some other crime. So I think they laid out a clear case for why this satisfied the threshold to bring a prosecution. You know, do I wish that we were going to get a perfect case wrapped in a bow that actually held Trump accountable for all of the worse things he did to our democracy? Sure. But I think that the path to an attempted coup and insurrection is paved with a bunch of other legal violations along the way. And so holding someone accountable for some of their thumbing the nose at the rule of law is is a good thing. And, you know, I’m not like super confident this is going to result in a conviction or that everything’s perfect. But again, I think they kind of made their case that this fell squarely within the kinds of cases that they would just clearly be bringing if this was done by someone not in the Trump world.

Jon Favreau Kate, what did you think? Was there any surprises when you read the the documents and heard back at the press conference?

Kate Shaw So a couple of things. In terms of the press conference, I actually thought he spoke pretty that bragged it. He spoke pretty directly to the critics, basically saying things like this case is trivial and doesn’t compare to the kind of existential stakes of the special counsel investigation into January 6th. And, you know, maybe to a lesser degree, Mar a Lago and classified documents, but also the Fulton County, Georgia investigation, January 6th, Fulton County, these are about the integrity of our elections and democracy. And those things just seem far more consequential than this. But I actually thought the way Bragg framed this case was about in equal parts financial integrity and electoral integrity. Right. He said, we’re the financial capital of the country. It’s actually really important as a value that we be sure that people are filing accurate and trustworthy documents. So that goes to kind of the robustness of our financial system. And actually the whole scheme was about subverting democracy and the electoral system by trying to skew the outcome of a presidential election through this concealment of damaging information. Right. So in 2015, we learned from the statement of facts. David Pecker sits down with Donald Trump, and Pecker says about the National Enquirer, We’re going to be your eyes and ears will help conceal damaging information. We will elevate damaging information about your adversaries. And so that’s the beginning of this scheme. And then as you described at the outset, we have these specific instances of implementation of that scheme. So I do think Brad is actually tying this to these broader democracy values that weren’t maybe evident on the face of these allegations as we kind of understood them before today, but actually really do seem to be present in this case. In addition to the other cases.

Jon Lovett We talking about, the campaign finance violation you’re referencing. So when John Edwards tried to pay some hush money to quiet an affair, one of the defenses was, no, no, this wasn’t about politics. I really don’t want my family to find out it was going to be really bad in this. You have these texts that are basically like, keep it till after the election. It’s basically a smoking gun that says this was done for the election. So that takes care of that excuse for it. But there’s this issue of so Donald Trump basically gets this in-kind contribution made to silence Stormy Daniels, and that is an illegal contribution. But if Donald Trump had, say, paid for it out of the campaign to quiet Stormy Daniels, that could be construed as an illegal use of campaign funds. Is it just the case that there is no way in the United States of America to pay hush money while you’re running for president? Is that what you’ll have us believe?

Leah Litman I think what you need to do in order to do it right and make sure it’s like a very legal and very cool is you can only pay a certain amount and then you need to publicly disclose it, which like obviously kind of defeats the purpose of hush money. But, you know, that’s that’s like one way to do it, I guess.

Jon Favreau I mean, I keep hearing this argument that these payments to Leavitt’s point, like, shouldn’t count as a contribution or expenditure under federal law, because then it would mean almost every expenditure a candidate makes during the course of a campaign could be construed as a way to promote their candidacy and thus influence the election, whether it’s buying new clothes or settling a lawsuit as you’re running because you don’t want that public. So what would you guys say to that argument? Because I keep hearing it.

Kate Shaw Yeah, I mean, I think the statement of facts just really kind of puts that to rest in producing really substantial evidence that everyone involved in the scheme that this indictment charges knew that these payments were being made in order to improve the electoral prospects of Donald Trump. That was the point. So, you know, I think in the abstract one can make the argument that there were other justifications and presumably there, you know, will, if this goes to trial, the evidence that Trump’s lawyers tried to introduce that suggest alternate motives. But the evidence that we’ve seen and you know, we’ve just seen the indictment in the statement of facts suggests that there was at least one key reason and maybe only one reason that these payments were made, and that was to help get Donald Trump elected president.

Leah Litman I will say, like I would not put it past Trump’s lawyers or like at least 1 to 3 Supreme Court justices to flirt with the idea that actually you have a First Amendment right to use your money in like whatever way you want to elect a candidate of your choice, because like that speech, it’s all just hush money. And I guess, like, I wouldn’t be surprised to see an argument in that vein like floated somewhere in the case.

Tommy Vietor I just really can’t get over the head of the National Enquirer going to Donald Trump and being like, I will work for you. I will be your eyes and ears. I will suppress all these stories that could damage you. Because again, back to John Edwards. The National Enquirer broke the story of the affair with Rielle Hunter and that John Edwards had had a child with her. In this case, they were gobbling up stories to protect Donald Trump. It’s like, imagine if we had the National Enquirer buying up the Reverend Wright videos in 2008.

Jon Lovett Well, the point is, I think that would be legally dubious. I think they were. I think I’m glad it happened. But we we have Schitt’s Creek.

Tommy Vietor It’s just so nice.

Jon Favreau I think we talked about this, Leo, last time you were on to discuss this case, but what do you think now are sort of Bragg’s biggest challenges in getting a conviction here? Like what are the what are the real obstacles in this case?

Leah Litman I think there will be some initial motion practice around maybe malicious prosecution, vindictive prosecution, where they attempt to have the indictment dismissed on that basis. I think that’s very unlikely to be successful. And instead, I think what we’re likely to see is challenges to the credibility of some of the witnesses. You know, at any trial that does happen, you know, questioning the credibility of Michael Cohen or David Pecker or whoever the other witnesses end up being. So I think that that is going to be a big part of the case. But I think that a lot of it before that point is going to be about these threshold legal questions like is it even permissible to enhance this misdemeanor charge to a felony on the basis of a federal crime? Does federal campaign finance law preempt the ability to enhance the misdemeanor charge on the basis of the New York state election law, crime and other kind of legal arguments? So I think those are still on the table. But you add to those kind of credibility challenges to the likely witnesses that the prosecution is going to be relying on.

Jon Favreau [AD]

Jon Lovett Kate earlier in his Mar-A-Lago I don’t know, address. He raised the judge and he said he was a Trump hating judge and raised the judge’s family and maligned the family.

Tommy Vietor I have a Trump hating judge with a Trump hating wife and a Trump hating family.

Jon Lovett So, you know, tradition, I don’t know. Judges don’t usually like that kind of thing, presumably. What do you expect to happen? What do you what what kind of position does that put the court in as they try to deal with this unique defendant?

Kate Shaw I don’t think a gag order is out of the question. So judges sometimes in cases will basically issue orders directing defendants to refrain from talking about particular topics. It’s not routine, but it’s definitely done. Roger Stone was, you know, maybe the most recent and most famous recipient of a gag order, but he was posting on social media about the judge presiding over his case, and she ended up issuing and then doubling down on a gag order. So I wouldn’t be surprised. You sort of saw in the hearing today the DA’s office beginning already to raise some of that rhetoric by Trump directed at Bragg and others. So I’m not sure if based on just the Mar a Lago remarks, we’re going to see the DA’s office try to get back in front of the judge and say, well, you didn’t we didn’t ask for a gag order. They basically asked for a protective order, essentially ask the judge to tell Trump and his team they can’t disclose the discovery materials that the DA’s office is going to have to give them. There could be identifying information. There could be other reasons. The DA’s office doesn’t want Trump blasting on social media, the contents of documents exchanged with the prosecution. But there was no request, as I understand it, for a gag order. So we could see a request for one and a gag order that was narrowly crafted to restrict his ability to talk about the judge. And the proceedings, I think would be perfectly permissible if you’re going to try more broadly to restrict the speech of a now declared presidential candidate. I think people would raise, obviously, First Amendment objections. But a narrow gag order, I think, is definitely in the realm of the possible.

Jon Favreau Let’s talk about timing. They said that next court date for Trump will be December 4th. Quite a ways away. We talked about, you know, Trump will certainly try to get the case thrown out. Are there other strategies he’ll try to use to delay even beyond December 4th? Or. I saw that the prosecutors want a trial in January of 2024, I believe, and Trump wants the trial in spring of 2024. What are your thoughts on on sort of the timing and what they could do to delay this?

Leah Litman I mean, they’re going to file a bunch of motions. You know, you add two different theories for like a motion to dismiss the indictment, trying to change venue. My guess is they’re going to try to challenge a legal theory is involved in the case. They will probably try to raise some questions or challenges to whatever, you know, discovery negotiations that they begin now and try to work through over these next few weeks or months. But, you know, the fact that his next court appearance isn’t until December. This case has been framed as are people above the law. You know, is Donald Trump going to be held to the law? And it’s already clear like he’s being treated differently. And we already kind of touched on this when we raised the possibility that it might be a problem, that this case turns in part on an untested legal theory. You know, the fact that people are even raising questions about that is a sign that this case is being treated differently. You know, they’re asking the prosecution to effectively come with an indictment that rests on a set of facts that courts have already held in other cases, constitute a crime under this statute. And that’s not the way like ordinary criminal cases are treated. And neither is telling the defendant like, we’ll see you back in eight months. You know, in a lot of felony cases, you have to check in with the court more regularly. And so, you know, he didn’t have a mug shot taken. So he is already getting a lot of indulgences that are being made in the interest of trying to make this process be and appear as fair as it can be, because, of course, like no one wants to live in a world where political foes are prosecuted just because they’re political foes. But the opposite of that world isn’t that political Opponents are above the law and can never be held to the law. And I think that the DA’s office is really trying to thread the needle, as are other offices, and they’re struggling with how to say, look, we’re trying to do the right thing. But like we also have to treat this case like other criminal cases in some ways.

Jon Lovett Kate Lee, do you say defendant or defendant? I think it’s so cool when TV lawyers say. Defendant It makes me feel like I’m watching Law and Order.

Leah Litman I guess I say. Defendant I don’t know if that’s because I am Minnesotan or not a TV lawyer, but a podcast lawyer. So sorry to disappoint.

Jon Lovett Kate What about you?

Kate Shaw Defendant Definitely.

Jon Lovett Defendant Just.

Kate Shaw A team that I’ve.

Jon Favreau Never heard defended.

Jon Lovett Like that. That guy from Philadelphia that represented Trump during the impeachment. He says. Defendant I would bet money on it, you know. Joe Tapioca Yeah, no, not Joe Tapioca. Do you think we can call him Joey Tapioca or does that feel offensive on some level?

Leah Litman Question I mean, what is even offensive these days?

Jon Lovett Do you regret doing this crossover? This is this is I think this is good.

Jon Favreau We now have like we were watching some Fox News just to see what’s going on over there, like the course of right wing pundits and even elected Republicans now basically just calling for some prosecutor somewhere to start indicting Democratic officials is growing louder and louder. Like, is that something that that you guys worry about that could actually start happening here or what?

Kate Shaw Oh, yeah. We’re both nodding hard. We worry about it. I don’t think it’s a reason that the Manhattan D.A., you know, should have hesitated here. But I do think it’s a real concern. There are two things that give me some comfort that we’re not about to see, despite the calls for somebody to do it. You know, some floodgates opening. One is this is the Manhattan D.A. This is Manhattan, where former President Trump conducted his business, his campaign. You know, this is an office that has a plausible nexus, a more than plausible nexus to the events charged in this indictment. Some random prosecutor in rural Texas trying to indict a former Democratic president or a member of Congress or anyone else. It’s just really hard to see even a threshold, plausible case that could be made. And that doesn’t mean that some elected D.A. might not try to make it. But I do take some comfort, actually, in the constraining force of legal norms and legal culture. I don’t think these things will save us, but I actually think electeds, they don’t write their own charging documents like they have staffs that help them do these things. And I’m not sure I think it would be a little bit challenging in most, you know, prosecutor’s offices to try to get your people to sit down and write an indictment charging I’m not even going to name names of Democratic officials and I’m not even sure who on Fox News is being singled out, although I’m sure I can guess. But I actually don’t know that it’s easy for pundits to call for it. I actually think sitting down in a prosecutor’s office and trying to draft such a document, even if you wanted to do it for political reasons, I’m not sure that you would get your team to do it because sort of people are steeped in these sort of rule of law norms in legal culture. Again, I don’t think that’ll save us, but I do think that it’s at least a somewhat, to my mind, comforting constraint, at least in terms of this becoming open season on Democrats by local prosecutors.

Leah Litman Okay, my little optimist, but like, can’t you imagine like Sam Alito, just like knocking back a cold one and like going out and making a citizen’s arrest of Hunter Biden and just Oh, yeah, they made me do it.

Jon Lovett That’d be cool. Jesse WATTERS is waiting outside.

Tommy Vietor Dianne Feinstein Hey, as long to the safe space for dumb questions, why do we still do courtroom sketches? They got Trump looking like the Grinch that stole Mar a Lago here. I like we get a camera in there.

Leah Litman I mean, we did get some photos from the arraignment, but courtroom sketches are just kind of a thing. And everyone always looks really horrible. They’re given like a shade of green and their face just looks kind of goblin esque. And, you know, so here, too, he was treated the same as everyone else who goes through New York courts.

Jon Favreau Okay. Why do you guys think that Merrick Garland and the DOJ didn’t bring this case like, you know, shortly after Biden took office?

Kate Shaw I mean, one theory, honestly, is that the Department of Justice has limited resources and January 6th was actually had just happened and actually come into office. And that is the DOJ priority. And this feels far less consequential. Now, look, DOJ can walk and chew gum at the same time. They can investigate multiple things. But I have to imagine, like that’s what’s immediately before you as you take over the Department of Justice, maybe you decide allocate your resources that way. So that’s one theory.

Jon Favreau Hmm.

Leah Litman I think, you know, some people at DOJ may be afraid of their own shadows and are so committed to the idea of being institutionalist that they treat office holders as kind of co extensive or synonymous with the office. And to them, prosecuting a former president is prosecuting like the presidency. And they’ve insisted in some ways on treating President Trump as if he was just like any other president. And that, I guess, means treating him as though he doesn’t break the law. So I think that that is also probably part of it. I think a more sympathetic reconstruction is, you know, as we were just kind of talking about earlier, these cases do sometimes take more time to develop additional facts. You know, we talked about some of the additional facts that we learned from the statement of facts here and other statements. And so it’s possible that they are still looking into some additional things related to, for example, January 6th or the Georgia Call or other things that might later on down the road. The rape charges. So that’s another possibility as well, Although, you know, I have to say I’m not really holding my breath for that.

Jon Favreau Well, the one that you didn’t mention that seems like maybe it’s not the most severe crime that Trump committed, but it seems like to me, at least the most open and shut case is the documents case. And there was news in the last week that DOJ now has evidence that after the subpoena was issued that they moved the boxes out of Mar-A-Lago and Trump inspected personally some of the boxes and that that. Do you guys think that’s pretty. That’s a strong one because it really strikes me that I don’t know how he wriggles out of that one.

Kate Shaw It seems really strong. Yeah, I mean, two things. One, the fact that you’ve had District Court Judge Pierce attorney client privilege on the basis of the crime fraud exception, which is very rare and suggests to me just, you know, really, really strong evidence is developing that there was one or multiple crimes being contemplated and planned between Trump and his lawyers. That’s, I think, significant. And also, like so this is the documents case, but also like this is as much about obstruction of justice, Right. Like the classified documents themselves are obviously part of the obstruction, but it is what appears to be the quite willful refusal to return and concealment and moving, etc., of documents. So the taking of the documents is, to my mind, sort of the least of the offenses and the taking of the documents. It seems to me, just on the facts, you sort of have him dead to write on those. But the rest of it seems really strong, too. So I think that’s relatively close to being charged if they’re going to charge it. I don’t think we’re talking about waiting a long time at this point. So it could be that we see in a matter of weeks or months, you know, multiple other shoes drop. This is just the first.

Jon Favreau [AD]

Tommy Vietor There’s some suggestion out there by, you know, sort of legal analysts that D.A. Bragg jumped first and issued this indictment, and that might prod others to come forward. Do you think there are other sort of leading investigations to jump? Do you think there’s actually that sort of thinking and analysis amongst prosecutors?

Leah Litman No. I mean, I think the most plausible explanation for the timing of at least the New York case is they’re bumping up against the statute of limitations. And so, like there was a time limit on when they would be able to bring this case. And it was apparent from, you know, the things that they were saying and other things we’ve learned in the last week, like the fact that Vance said that they were basically told to stand down by FDNY when that was still under the supervision of the Trump administration. And the Vance office had also been bogged down in trying to get Trump’s tax returns. You know, the case that went all the way up to the Supreme Court. And so there are all sorts of reasons why it takes a while for some of these cases to proceed. But all of the cases also have different time constraints. You know, as far as statute of limitations and other kinds of considerations, and here again, it seemed like the five year statute of limitations for the felony crimes was going to expire based on some of the last acts that went into trying to conceal the falsification of these business records back in 2018. So that seemed to me to be like the best explanation for the timing of at least the New York case.

Jon Lovett Got it. Speaking of the timing, you see this kind of this argument that, oh, this is the weaker of the cases. Wouldn’t it have been better if we started with something like Fulton County or the documents case or the January six case in a way saying, oh, I wish these prosecutors were a little bit more political in how they approached this, while at the same time worrying that this Brad case appears to be political. How do you how do you unpack that problem, that sort of logical confusion, Kate?

Kate Shaw Yeah, I mean, I think that that it’s sort of like a heads Trump wins, tails, everybody else loses, right? Like sort of logic, like it’s wrong that this sort of went first because it’s political, but also political to do the coordinating. I mean, I think that it’s right for all these prosecutors to be independently assessing the evidence in front of them, considerations, like you mentioned, of statutes of limitations and proceeding without giving any thought to the other investigations and how optimal sequencing might work. I I’m sure they’re not explicitly coordinating about this. I doubt they’re even or at least I’m sure they’re trying not to to put any real thought into this. I will say, though, I think in a subtle way, not as a matter of actual coordination, but I do think that it is possible that this has something of like a dam breaking effect only in that if you really are the first and you don’t have some, you know, external pressure like a statute of limitations about to run, I can imagine spending a lot of time making sure the documents that you’re going to file that will be the first indictment of a former president are absolutely perfect. And I imagine that, you know, the bar may be a little bit lower if it’s going to be the second or the third. And so you maybe if your case is ready, but you might take another week or two to really polish it, you might go ahead and announce it without that additional kind of vetting. So I do think that on the margins, it might move things a little bit faster. In the other case.

Jon Favreau I think it’s a great appetizer.

Jon Lovett Yeah, I think yes, I think I agree. I think Brad did throw the first brick at Stonewall and it’s like you’re your.

Tommy Vietor First kid is eating organic food and going to bed on time. The second or third, you’re like, throw them in the cage with some water. And.

Jon Favreau You know, I think the main course is coming. I’m going with my yeah, I’m excited. Look, he’s it sounds like he’s going have a lot of court dates between between now and Iowa. Everything we’re doing now in November, he’s going to be going back to the campaign trail.

Jon Lovett He’s going to have one lawyer in New York being like, I’m sorry, I’m not available during that time. I’m on trial in Fulton County, D.C. You guys got to work together, got a packed dance card.

Tommy Vietor You know, it’s going to make debates complicated.

Leah Litman Can I just say one additional thing? Yes, please. Okay. So during all of this, donald trump Jr. Tweeted out a picture of the judge in the case says child. And I just think it’s worth parsing over the fact that like in the last few years, we have seen Republicans be very attuned to the possibility of protests at justices homes. And there have also been real events of violence against judges and their families. In particular, Judge Salazar’s son was murdered when a gunman went to her house. And the idea that trump Jr. Would do this is extremely appalling. And I would think slash hope that if anything, would generate like more concern about protective orders or gag orders or like procedures to protect judges, like it would be this.

Jon Favreau Not only to don jr tweet the picture. Trump in his speech specifically raised the issue of. Of the daughters. Oh, she worked for the Biden-Harris campaign, brought her up, talked about the judge, talked about the judge. His wife said that Braggs should be prosecuted. I mean, that speech was just like typical Trump bullshit. And there was like, nothing too exciting about it. But that was just like, what the hell did he just do? Especially after the judge just warned him about this again.

Leah Litman Like, it is really scary knowing again that this is something that has happened. And, you know, the gunman who went to Judge Sally’s had a dossier on Justice Sotomayor. And by putting pictures of the judge’s family and then again bringing the judge’s family up in this speech, like I am concerned about what it seems like, you know, they are emboldening people to do or test the limits of.

Jon Lovett The judge has power here. Right. The judge can stop this in a number of ways if he is willing to go far enough.

Leah Litman That’s true. But like as Kate was saying, the standard for imposing a gag order is high. The judge said he didn’t want to have to do so. And I worry that, like this is a circumstance where wanting to treat this case differently because it involves a former president and trying to air on the side of giving this defendant the benefit of every procedure and every doubt will make it harder for the judge to impose a gag order, even though I think it is already showing signs that there would be very good reason to do so, at least in some capacity.

Tommy Vietor Yeah, I mean, the context I was just going to add is, you know, what Donald Trump Jr tweeted was a Breitbart story about the judge’s daughter who worked at a firm that worked for the Biden-Harris campaign. So if he’s tweeting news articles, do you get into very complicated sort of First Amendment territory with a gag order?

Leah Litman So I don’t know whether like a news article in particular would, you know, raise additional First Amendment concerns in addition to whatever the concerns would be had Donald Trump Jr just said, you know, the judge’s daughter worked for a firm that worked for the Biden-Harris campaign. I don’t know if that adds any additional speech concerns there. But again, the fact that it is now being repeated is all within 24 hours. It’s just really concerning.

Kate Shaw Yeah. And I think for all of the kind of articulated concern about overreach by the D.A. or, you know, novelty of legal theory, like you’re not hearing broad cross partizan condemnation of attacks on the judge, attacks on Bragg and his family. Right. Just, you know, rhetorical at this point. But obviously Wragg actually did receive a threatening letter powder in an envelope. So this isn’t just rhetoric. People are taking action directed at the players in this prosecution. And we are literally one day in terms of the actual arraignment. So the stakes are really high. And, you know, whatever the judge could do, you would imagine that there would be broad condemnation of that kind of rhetoric. And I so far have not heard it.

Jon Favreau One day in and and one indictment in with potentially many more to come. Both of you, thanks so much for for joining. And I’m sure we’ll be talking to the two of you and Melissa many times over the next year, next two years about Donald Trump investigations.

Jon Lovett The rest of our lives.

Jon Favreau And hopefully other stuff, too. Thanks for. Thanks for doing this tonight.

Kate Shaw Thanks, guys.

Jon Favreau Thanks to Leah Litman and Kate Shaw for joining us. And we’ll talk to you in the Thursday pod. Bye everyone. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Andy Gardner Bernstein. Our producers are Haley Muse and Olivier Martinez. It’s mixed and edited by Andrew Chadwick. Kyle Seglin and Charlotte Landes sound engineered the show, thanks to Haley Keefer, Ari Schwartz, Sandy Girard, Andy Taft and Justine Howe for production support. And to our digital team Elijah Cone, Phoebe Bradford, Milo Kim and Amelia Montooth. Our episodes are uploaded as videos at YouTube.com slash pod Save America.

Jon Lovett [AD]