Trump’s Trial’s Tribulations: Legal Merits of Four Federal Felony Fraud Indictments

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This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Since America’s founding, no president has been criminally indicted until now. Already facing 37 state felony charges in New York and 40 federal felony charges in Florida, former President Donald Trump has now been indicted with four additional federal crimes by special counsel Jack Smith for actions following the 2020 elections and those leading up to the chaos in the Capitol building on January 6, 2021. While most Americans already have well-formed opinions about Mr. Trump’s fitness for the Oval Office, the unprecedented nature of indicting and bringing to trial a former president of the United States deserves sober scrutiny and a careful process. Indeed, owing to Trump’s ability to elicit and activate Americans’ most intense partisan reactions, the Department of Justice must be seen to be bringing charges that comport with the commonly applied law and its precedent and are not seen as an opportunistic or weaponized instrument of political oppositions. For the prosecution, the case will not rest on dispute over details of Mr. Trump’s actions, as his refusal to accept the results of an election and willingness to flout rules for the peaceful transfer of power were all done in the public’s eye. Rather, Mr. Smith will have to prove that the laws specifically written and historically enforced to protect and facilitate elections also apply to a president. What are the crimes for which Mr. Trump has been indicted? What are the guidelines and legal precedents for enforcing these crimes? When will the trial likely take place? And how will this event play out in our strongly, deeply divided corps of public opinion? My guest today is Ilya Soman, Professor of Law at George Mason University, whose research focuses on constitutional law, property law, and democratic theory. Professor Soman has written extensively on the detail and merit of the recent federal indictments of Mr. Trump. He will explain the four crimes for which he is accused, their precedents in law, and offer his views on any weaknesses in the prosecution’s case.  When I return, I’ll be joined by George Mason Law Professor and legal scholar, Ilya Somin.

Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi. I’m now pleased to be joined by George Mason Law Professor Ilya Soman. Welcome back to Hubwonk, Ilya.

Ilya Somin: Thank you for having me.

Joe: Well, I’m thrilled to have you here on an issue that really is one of national debate. Specifically, we’re going to talk about today about the recent indictment of former President Trump by special counsel Jack Smith over the alleged crime he committed related to his efforts to potentially subvert the peaceful transfer of power after he lost the election in 2020.  I wanted to have you on our podcast because you’ve written extensively on this subject, specifically whether the crimes or the alleged crimes fit the actions. And you are a great scholar that doesn’t let partisanship cloud your judgment. So, insofar as it is possible — I’m sure our listeners will have a strong view on President Trump as an individual, they will either love him or hate him — but for those people who really want to sort of consider the merits of this particular case, this is the program for them. We’re going to try to just focus on the law here. Now, in context, the time we’re recording these charges come after some state-level charges in New York. Related to the hush money with Stormy Daniels. There’s been other federal charges related to a classified document, the handling of classified documents in the Mar-a-Lago, but these are separate charges related to post-election 2020 and leading up to the January 6 events. So, let’s start at the beginning with the basic law. What has the former president charged with in this case?

Ilya: Sure. So, he’s been charged with four separate counts of violating or essentially three different laws. One is a law known as 18 USC 1512, which in the relevant part criminalizes obstructing, influencing, or impeding any official proceeding of the U.S. government. And here we’re talking about the certification of the electoral votes in Congress, which Trump attempted to impede and obstruct in various ways, such as by plotting to replace the real electors chosen by state popular vote with fake electors, by trying to pressure Mike Pence, the vice president at the time, into refusing to certify the electoral vote, which he did not have the legal authority to do, and a number of other ways as well. Next, we have charges under 18 USC section 1371, which forbids, among other things, defrauding the United States or any agency thereof in any manner or for any purpose. And here, it’s mostly the same course of conduct they already mentioned, but also being a violation of section 371, as well as the other statute that I previously mentioned. And finally, we have 18 USC section 241, which says that it’s a crime for two or more persons to conspire, injure, threaten, or intimidate any person in the free exercise or enjoyment of any right secured by the Constitution of the United States. In this case, the relevant rights are rights to participate in elections and in the electoral process. And the government cites Trump’s efforts to overturn the vote count in Georgia and other states, to pressure state officials into doing so illegally, and that is seen as obstructing the right to vote of the people in those states and also the electoral process. There is precedent in the Supreme Court going back 100 years, which says that section 241 applies not just to direct intimidation of voters or the like, but also to efforts to undermine the electoral process. For instance, there’s a group of Chicago Democrats who were convicted under this several decades ago, because they tried to rig and falsify the vote count in Chicago city, which at least in earlier decades had problems with that sort of thing. And even though they didn’t intimidate individual voters, nor were their actions as far as we know racially motivated, nonetheless, they got convicted. The statute does have origins in the Reconstruction era, when racist whites in the South tried to intimidate black voters, to prevent them from participating and the like, but it’s written more broadly than that and the Supreme Court has applied it more broadly than that. So ultimately, these are three different statutes, but all of the charges for the most part are about the same course of conduct, which is the plot to subvert the result through 2020 election by installing fake electors to replace the real ones, by impeding the vote of the account of the electoral votes when Congress gathered to do it on January 6, and finally, by trying to plot to pressure various state officials into falsifying vote counts. I should mention that we’re talking now only about the federal charges that were filed now several weeks ago. Tomorrow and the day after we’re having a discussion, there are likely to be charges under Georgia state law, under which Trump is likely to be indicted in Georgia state court. Since we do not yet know exactly what he is going to be indicted on, I can’t comment on those. I’m just commenting on the federal charges that as of today, August 14, we already know about.

Joe: Okay, all right, so you’ve laid the the groundwork and whetted the appetite for future indictments perhaps. We don’t know what those are but I think of all the things I’ve heard that Trump’s done bad,  these particular indictments, I think rank among the worst, but again we’re not going to color this conversation whether we think Trump is a good guy or bad guy ought to be president shouldn’t be president, rather we’re going to talk about the law. Just before we get into other details about these indictments, there is a big white space under Donald Trump as far as his being accused and there are in the indictment, they list six unnamed co-conspirators, and  explain to our listeners what that means, why are they unnamed, and you know what, where will they play out in the in the future?

Ilya: So, although they’re unnamed in the indictment, it is likely that we already know who most of these people are. The phrase unindicted co-conspirator was made famous of course during the Watergate scandal, where the men who actually participated in the Watergate hotel break-in were the defendants, but in the indictment President Richard Nixon was named as an unindicted co-conspirator. Here, Trump is actually the direct defendant, but there are several men who participated in the plot with him. I remember one of them is maybe a woman, so several people who helped in various ways with the plot to install fake electors to pressure state officials, to try to get Mike Pence to reject the electoral vote count, and so on. It is likely that those individuals or at least some of them will be indicted later and tried separately. I think Jack Smith, the special counsel, would prefer to try Trump by himself so as to make the proceedings simpler and faster, but he may well indict some of these other people alternatively it is possible that some of them might do plea bargains where they agree to testify against Trump for reduced sentences. But we do know who some of these people are perhaps the most prominent is John Eastman, the lawyer and yes, someone I know and have known for many years. He is a lawyer and former law professor who advised Trump and urged him to do many of the things that are in the indictment, particularly the public effort to get Mike Pence to reject the electoral vote count. And so, legally speaking, prosecutors, if they allege a conspiracy, they’re not legally required to charge all the conspirators in the same proceeding. They’re not even legally required to go after every single conspirator or co-conspirator at all. They can pick and choose — that’s a relatively normal part of the prosecutorial process, but I do think it’s likely that Eastman and some of the others will be charged in the future, perhaps sooner rather than later, we’ll have to see.

Joe: Right, so I’m no Sherlock Holmes but I even I can guess who each of those six people are by the descriptions in the indictment.

Ilya: Yes, and many observers have done that, yes.

Joe: But so, you’ve already sort of answered my question but I was going to ask, are they likely to be indicted or possibly indicted in the future but in my view, you answered a deeper question which is why wouldn’t you throw everybody on there that’s guilty? You’ve said you want to streamline the trial and we’re going to get to that point later on in our conversation. But you said that many may have a plea deal whereby they testify against the president so as to — their testimony in exchange for leniency or amnesty.

Ilya: I don’t know if they will or not, I’m saying is that that’s a possibility. And that too is standard in these kinds of cases it’s common when you have conspiracies say with mob bosses or something like that that the prosecutors will try to make a deal with an underling to have the underling, you know, testify against the boss. So, similarly here, by far the most important figure on all of this wrongdoing and conspiracy is obviously Trump. So, if the prosecution has the opportunity to make a deal with one of these underlings to testify against him, they might be willing to do that. Whether that’s actually going to happen or not, you know, I don’t know what we’ll have to see.

Joe: So, for the benefit of our listeners this is a pretty long indictment. I read through the whole thing. It’s pretty bad, I’d say. You know, if you don’t like Trump this you will be thrilled by this this long, I don’t know, you call it missive, on his actions. Does this reflect the entirety of Jack Smith’s case. In other words, if one reads this, can one in a sense deduce whether this is a solid case, or is this essentially just saying these broad strokes, and when we get to the trial then I’ll give you the actual facts, the actual details —

Ilya: It’s more the latter, given the amount of evidence in these cases. It’s already publicly available. We know that what’s in the indictment is not everything that Jack Smith has, and there’s a good chance that he has more that’s neither in the indictment nor already publicly available. But we know from the January 6 Commission report that there’s a lot of additional stuff, because they interviewed dozens of witnesses including many who provided what at least to me seems like relevant evidence. We know also that the special counsel’s office has interviewed a lot of people who not all of them are necessarily mentioned here and I mentioned already the possibility of there could be testimony from people they’ve made deals within the like so it is highly unlikely, and it’s indeed almost impossible that what’s in the indictment is the sum total of the evidence that Jack Smith has. There is likely to be more. But I would add that one way in which this case differs from Watergate, which is the closest thing to a precedent that we have, is that a lot of the criminal activity and wrongdoing that Trump engaged in was sort of out in the open. Nixon knew that if his role in the break-ins and related activities was revealed it would be bad for him and he knew, and therefore he tried to cover it up. With Trump, he pretty much openly said that he wanted to overturn the election, that he wouldn’t accept the result, and that he was going to do everything he could, including inciting violence to make it happen. So, in that respect, while there are a lot of interesting and in some cases new details in the indictment and in the January 6 committee hearings that happened earlier, there are also large parts of this criminal activity that just happened in plain sight.

Joe: So, this I think dovetails was with my first question. So, I want to go deep because I think the essence of these charges are the defrauding or the charge of fraud. And again, I’m a layperson, but I’ve tried to read enough on this that that I see really there’s a lot of pushback on this notion that statutorily fraud is very, very carefully defined. And generally, it relates — again we’re talking about the statute 371 — it was related to crimes that affect the theft of property, not necessarily fooling the government but rather stealing from the government or stealing.

Ilya: I think you have that wrong. It’s understandable that people who are not expert on these specific sections of the law would think well fraud must involve the theft of property or some tangible material object. That may indeed be true under many fraud statutes, but it’s not true under section 371, which is much more broadly worded than that, and which the Supreme Court has defined for over 100 years, as impeding material proceedings of the federal government in various ways that go beyond, you know, getting any kind of property from the government unlawfully. For example, in the 1924 case of Hammersmith v. United States, they say that this covers any action that quote interferes with or obstructs one of its lawful government functions by deceit, craft or trickery, or at least by means that are dishonest. And here, the lawful government functions is the counting of the votes, the certification of the electoral votes, and the like. It doesn’t involve theft of property or tangible material items of some kind, but the Supreme Court has said for 100 years that this particular fraud statute goes beyond that. And while there may be other fraud statutes which are much more limited than that — you know, doesn’t apply to section 371. It is often the case in both the law and in ordinary language that the same word can have somewhat different meanings, depending on the context. So it would not be surprising if there are some federal fraud statutes where the definition of fraud is relatively narrow and others where the definition is broad some are actually you know concerned with property crimes or people stealing from each other. This fraud statute is concerned with disrupting or undermining government proceedings. And in most cases, the problem is not that property is being stolen, but that the functions of government are being impaired.

Joe: Let me just say again, I’m not the legal scholar, but I have read enough of the legal scholars that, you know, talk about precedent as you do. Again, you’re going back to 1915, but specifically the cases of Simonelli v. United States and Cleveland v. United States. The statute said address money or property. Why, why aren’t those and these are far more recent.

Ilya: Those are about different statutes. They’re not about section 371. They’re about things like the federal wire fraud act. It is very common for a similar word or phrase to mean one thing in one statute, and another in another statute. Moreover, the Supreme Court has precedent which says that there’s a very strong presumption of overturning statutory precedents as opposed to constitutional ones. So, when the Supreme Court has been interpreting section 371 a particular way for 100 years and more, it is extremely unlikely to be overturned. It is true that fraud is defined more narrowly under other statutes where we’re talking about things like private individuals defrauding each other. On the other hand, when you have section 371, a statute that’s about interfering with government proceedings and the like, that is defined more broadly. And has been for decades.

Joe: So, I don’t want to argue with you about precedent because that’s your field of study. What about speaking to the president’s state of mind? Uou’ve made reference to, you know, knowingly lying and all these kinds of things but again defenders of the president would say, whether it’s pathological or genuine, he seems to from time to time, either believe that the election was stolen or be giving from like folks like John Eastman, a legal scholar, John Eastman, put that in quotation mark air quotes, telling him these are the election was stolen and these are legal and authentic ways to change the outcome as it was otherwise determined.

Ilya: So, this is one of the more substantial arguments made by Trump’s defenders. The basic idea is that in order to be convicted of a crime, you have to have a criminal state of mind you had to know that you were doing something that was a crime and in particular arguably to commit fraud, you had to know that you were deceiving people rather than telling the truth. But while this argument is a non-trivial one, I think there are several levels of problems with it. The first level is that there is in fact a lot of evidence that Trump knew that he lost the election. Indeed, Cassidy Hutchinson one of his former staff members, has testified to January 6 commission that he specifically said in the aftermath of the election, we don’t want anybody to know that we would be embarrassed because it would be embarrassing. There are similar statements by people like his Attorney General Bill Barr, who discussed the election with him extensively in the aftermath of it. And he believes the same thing, that Trump knew that he lost and there is a good deal of other evidence like that — some of it in the indictment some available elsewhere — and it is likely — not certain, but likely — that Jack Smith can present additional evidence to that effect that is not yet public but will be included in the trial.

Secondly, even if Trump did not know that he lost the election, still Trump had no reason to think that the fake electors he was promoting were actually real ones. And so, he surely had knowledge that they were bogus, even if he still thought he won the election, those people, most of them weren’t even on Trump’s electoral slate for the election. When elections happen, each candidate puts forward a slate for their electors and if they win the pot or vote in that state, then their slate that they put forward, they won the official electors obviously if somebody else wins them, it’s that person’s slate, but people who are not in any electoral slate are clearly not qualified to be electors, and that’s what those fake electors were. The same thing can be said of the effort to get Mike Pence to reject the electoral vote. Even if it was the case that Trump thought he won the election, it does not follow that he had any basis for thinking that Pence had the right to reject the electoral votes. It is true that Trump sought out some legal advice by people who would tell him things they wanted to hear. If that gets you out of committing fraud, then all of us can commit fraud anytime we want, so long as we find some hack wire to tell us well, actually, what you’re doing is legal. And then the final weakness with this line of argument is that there has to be a limit to this idea that you can’t commit fraud. If you, you know, if you thought you were doing the right thing. If you’re constantly selling snake oil, and there’s no reason to think that the thing that you’re selling actually cures the disease, the mere fact that you’ve persuaded yourself by finding some quacks to tell you that the snake oil is actually a cure for cancer at some level. And that’s if beyond a certain point that can’t justify your getting off for selling the snake oil, because you should have known that it was snake oil, there was no good reason to think that it wasn’t. And if the only reason you think that it wasn’t is that you search around for somebody who would tell you what you want to hear — and then you decided to believe them — you’re still a snake oil salesman and you’re still guilty of fraud. And the same thing applies here. The people who actually had reasonable qualifications in this area, Trump’s own campaign advisor his attorney general, virtually any other reasonable or they all told him he lost the evidence was overwhelming that he lost. He found a few hacks or in some cases people who may have had expertise in other things, but did not have expertise in this in this area of law. John Eastman is one such person. Eastman does have expertise on some other areas of law. He is not an expert in election law. He doesn’t know anything about vote counting and the like, and therefore the fact that Eastman and a few other similar unqualified people told Trump what he wanted to hear — and you can make an argument that Trump believed that, though it’s not actually clear that he did — but maybe you can make an argument to that effect, that still doesn’t excuse the fraud, anymore than it would in the case of the snake oil salesman.

Joe: So, let me turn that argument completely on his head and tie two things that you said earlier. One was that Trump’s lies were in the open meaning we all heard them and saw them there’s not much dispute on the facts in the case. And to use your snake oil analogy and say, if everybody in the audience knows it’s snake oil and you tell them it’s snake oil, you know, where at what point does that become criminalized? In other words, if everybody in this clown show if you will, or I don’t want to make normative assertions but in theory if in theory everybody if they were lying everybody knew they were lying and everyone knew this was sort of a bogus and doomed effort, where does the criminal line be drawn if you’re, again, amongst the characters of everybody being in on the same grift, where, at what point does saying you won the election become criminal and all the things that follow from that?

Ilya: I think there are three problems with that argument. One is, in order for something to be conspiracy to commit fraud or even it doesn’t have to succeed. People all the time get convicted for crimes that they tried to commit but failed. A second problem is of course many millions of people did believe the lies, just as there are people who are willing to buy snake oil. I actually have a whole book called Democracy and Political Ignorance, where I describe how people are more willing and more to buy and accept snake oil and dealing with political issues than in sort of ordinary economic transactions involving the more common type of snake oil. And then the third point is that Trump is not actually being charged merely for saying that he actually won the election or that there was fraud. That by itself is not a crime. He is charged with the activities that arose from those statements and from his efforts to overturn the election such as trying to install fake electors, trying to get state officials to falsify vote counts, and trying to get Mike Pence to refuse to certify the electoral count. And so, those are the crimes. It is not merely stating that he was the legitimate winner of the election. And I think that’s an important distinction. And while it is true that many of the officials that he tried to pressure and the like that you know those individuals knew most likely that you know his claims were false, the ultimate victim legally speaking of the conspiracy to commit fraud is the U.S. government, which of course is a is not a person but an entity and so if he had gotten those officials to cooperate with them that the government would have been victimized. And the fact that everybody knew that it was a lie would just make them more guilty rather than less. And similarly, when it comes to 18 USC section 241, the victims were the voters whose votes would have been negated by his schemes had the scheme worked and the fact that the voters knew, many of them at least knew that, you know, that his claims were lies, that no way diminishes the victimization that would have occurred.

Joe: Okay, I want to again, before we get off this fraud question I want to lean heavily on your expertise and again play devil’s advocate. I’ve been doing the research on the different precedents and my concern about this and the reason I keep pressing on this is if he is ultimately convicted of this particular count, fraud, I’m concerned or I’ve read others that are concerned that the Supreme Court ultimately if they hear the appeal, would be, you know, as far as the black letter law of fraud may be tempted to overturn the conviction. Which, if you don’t believe Trump’s a good guy, you won’t want to see. Specifically, the precedent of the McNally decision which said, you know, schemes to manipulate the government process is different from fraud against the government, right? What we’re describing is taking every possible measure that, let’s say his creative lawyers could come up with, you know, beyond breaking the law — let’s you know, assume that was their effort, they didn’t want to break the law and they want to twist the rules as far as they could go before breaking. Is it your concern that the particularly with recent precedent of the Supreme Court going all the way to Kagan who is narrowly defined fraud, is your concern, do you have any concern that the Supreme Court might not be as generous with the labeling of fraud as you are?

Ilya: No, because that precedent as I’ve tried to say before was under a different statute. It was not under section 371, which is, I’ve already had occasion to point out. for over 100 years the Supreme Court has defined broadly as interfering with the government processes. Uh with the government processes and for instance in the 1924 case of Hammerschmidt v. United States they said that that it under this statute is unlawful to “interfere with or obstruct one of its lawful government functions by deceiving, craft, or trickery or at least by means that are dishonest.” That’s easily sufficiently broad to include the conduct alleged against Trump, and the Supreme Court just this year in the voting rights act case has reaffirmed it’s very strong precedent against overturning statutory precedent so I think there is a difference between this statute and some other fraud statutes where the definition of fraud is narrower. And I think it’s very unlikely that the Supreme Court will overturn or significantly limit that previous precedent. Indeed, I’m far from convinced that the Supreme Court would even hear an appeal from this case. I think it’s more likely if not certain, but more likely that these issues would be determined by lower courts.

Joe: Okay, well, let’s I want to move on because we have three more counts. Specifically, we want to talk about the obstruction charges, those that presumably we’re talking about January 6 and all the chaos that went on there. We’re effectively trying to tie Donald Trump to what went on at the Capitol. Again, if we’re talking only legal, we all can draw a line between Trump’s statements and fomenting unrest and ultimately, perhaps we could have predicted what would happen next, but we can’t draw a causational issue. Can, where does the law and how would the prosecution link Donald Trump to the actions that, frankly, thousands of people, at least hundreds of people have been prosecuted for as culpable. They can’t blame the president for their actions. They have to blame themselves. How can both the president and the writers be blamed for this obstruction?

Ilya: I think the key thing to be understand here is that he’s not actually being charged with the violent assault on the Capitol or with inciting it. There was talk that he might be charged with inciting insurrection or other similar charges, but Jack Smith actually didn’t do that. The January 6 event that he’s being charged with is the attempt to pressure Mike Pence into refusing to certify the electoral vote, and the only connection to what happened at the Capitol when the rioters attacked is the while that was going on during that time, apparently Trump again during that while there was the violent attack going on, was still in the process of trying to pressure Pence into rejecting certification and trying to use the threat of the attackers as further leverage to do that. But he is not actually being charged with the incitement of the riot or the resulting violence. There’s a reasonably decent argument that he should have been charged with that, but he wasn’t. He is being charged — all the four counts that we’re talking about — they’re about pressuring Pence, pressuring state officials, you know, the fake elector scheme and the like. He is not actually being charged with criminal culpability for the violence that occurred on January 6.

Joe: So, it’s the pressure he applied, the obstruction is obviously, Pence was instrumental in the in those proceedings and his pressure against specifically the vice president is how he’s obstructed that particular event?

Ilya: Yes, and also, by trying to replace the real electors with fake ones and the like.

Joe: Which getting to the conspiracy again is a separate crime the conspiracy that’s leading up to are planning to obstruct it. He knew, let’s say presumably he’s being charged with knowingly creating the false electors and and knowingly sort of having a whole plan before the actual day occurs.

Ilya: If you read the indictment and other available evidence there was extensive discussions between Trump, the unindicted co-conspirators you mentioned earlier, plus also the fake electors themselves in many states to try to get these people installed in place of the real electors. And then, you know, either get Congress to recognize them or more likely because it was unlikely Congress was going to do that, to get Pence to set aside the certification of the vote of the electoral vote by Congress as all part of that scheme.

Joe: All right, and I don’t want to leave off that you alluded to it, or you described it in your opening remarks, but we want to talk about the final charge, which is the denial of right specifically voting rights. I think we have voting rights! We have the right to be, you know, if we do vote we have the right to be registered. The defenders — or I won’t say defenders of Trump — but let’s say people who would suggest that this is not a valid claim would say okay look, there’s a right to cast a vote and have that vote counted. If Trump tries to go out there and again, we may be talking about this in the future with regard to Georgia, but Trump goes out there and tries to, in his view, find votes that were perhaps cast but ignored, or lose votes that were improperly cast. That said, you know, all these talks of dead voters — I’m not in this camp but again I’m here to play devil’s advocate that, you know, 2000 mules argument — if he’s knowingly trying to get rid of bad votes and find good votes. How is that a sort of taking someone’s voting rights away?

Ilya: So, I would say two things. One is this statute is not limited just to taking it away to voting rights of individuals and includes subverting the electoral process as a whole, and there’s again here to 100 years of precedent, which says that, including the Chicago case that I mentioned.

In addition, he had no basis for believing that there were, you know, proper votes that hadn’t been counted, or any significant number of improper votes that were counted, and in his conversations with Brad Raffensperger, the Georgia Secretary of State, and other officials, there’s zero evidence that his goal was merely limited to any improperly counted votes. He specifically tells Raffensperger find 11,780 votes, which would have been the number that he needed to overturn Biden’s margin in that state. So, there’s no evidence really that any of this was driven by concern for the truth. It was all driven by a desire to find the right number of votes to overturn the election result. I would add also that, you know, there are certainly elections where the margin is close enough that it falls within what lawyers call — lawyers specialized in this area, call the margin of litigation — that it could potentially be overturned by litigation or recounts. In Georgia, and in every one of these other states that were contested by Trump, we’re talking about many thousands of votes, we’re talking about a margin large enough that never in the history of the modern U.S. has an election but overturned when the initial margin was this large, and therefore, any experience and capable election lawyer could tell him that there was zero chance of finding sufficient votes or fraud or whatnot to overturn the result, especially since important to remember, overturning it in one state would not have been enough. This not like the 2000 election where came down new a 500-vote margin or so in one state, Florida. So, overturning the result in Georgia would not have been enough, he would have had to do at least a couple more states in order to make it happen. And so, you would have had to, all told, overturn probably 100,000 or more votes spread across multiple states. and there was zero chance of that ever happening or of fraud or chicanery on a large enough scale to create a margin like that occurring without being detected through normal processes.

Joe: Well, I want to pull back a little bit and you know before we sort of wrap this up, I want to say that the one adjective used for all of this, on both sides and in everything I read is the word “unprecedented,” and the idea that we’re again we’re going to be trying a president and a former president of the United States in a court of law. Of course it’s unprecedented. There are those of course who argue that the reason is unprecedented we’ve never encountered someone, let’s say as uniquely unprincipled as Donald Trump, you know, if Donald Trump listeners will forgive me for calling him unprincipled — I hope I hope I can get away with that. Some will say that’s why some president we haven’t met someone like Trump before others, I think, more persuasively argue that there should be some concern about employing an executive branch of the Department of Justice executive branch to weigh in on matters of elections which is to say, a political branch, you know, sort of convicting or indicting and convicting people for the process of getting elected. There seems to be something uneasy about creating laws and enforcing laws in this process of elections, whereby, taken one way and taken too broadly, you could criminalize a great deal of things that could be weaponized. Again, we’re talking about precedent. In the future someone could not like an election result and use these same weapons we’re using to defend elections against future politicians. What do you say to that?

Ilya: I would say let’s step back a moment and ask, you know, the key, what is the key to democratic process? The key to democratic process is that people are chosen through elections, and if they lose they have to leave power. If a president or any government official — but especially a president being the most powerful official in the land — refuses to leave office when he’s clearly and obviously lost an election, and instead tries to stay in power by force and fraud, to my mind it would set a troubling, dangerous, and completely unacceptable precedent. If such a person just get away with that kind of behavior and get off scot free without any meaningful punishment. And therefore, it is important and essential that there be a punishment here, preferably severe punishment, so as to be proper retribution for the magnitude of the evil that was attempted, and so as to deter other politicians of any party from doing the same thing, kind of thing in the future. So, we’re going to talk about precedent. That’s the precedent to be concerned about. We talked in detail about the charges, none of them involve prosecuting Trump or anybody else, simply for just saying the election was rigged, not him involved, prosecuting him for using normal legal processes to challenge the election results. It’s like he filed 60 or more cases almost all of which he lost. If he had limited himself to that well, that might have been somewhat bad behavior or problematic it was not illegal, and nobody would have prosecuted him for that. If he had even simply left office without accepting that he had been defeated but also without engaging in these plots and chicanery about trying to get Pence to reject the electoral vote counter having to have fake electors and so on, once again, he wouldn’t have been charged with anything. So, if we’re going to talk about precedent, I say the really bad precedent to be concerned about is the precedent that would be set by letting this man get off scot free. I do recognize that there is a history of illegal behavior by presidents and other powerful politicians that in some cases has not been properly punished or properly dealt with. We could talk all day about that. I think to the extent that’s true, it becomes all the more important to begin to roll that back in this particularly egregious and awful case. And I would add also that the usual argument that’s made for letting presidents and other high officials slide when it comes to legalities is well, they’re subject to political punishment. I think that argument is actually flawed in general in various ways that we can talk about, but it’s particularly flawed in a situation where the whole point of the crime was actually to short circuit the process of political accountability, the electorate that was released the majority of it didn’t like Trump’s performance in office. They decided to get rid of him through normal electoral processes, and then he tried to subvert that. So, you can’t argue that political accountability is sufficient for a crime whose very purpose was to subvert that very political accountability. I think it’s not sufficient for some other kinds of presidential wrongdoing that should have been punished more in the past. I think it was a mistake to pardon Richard Nixon after he was forced out of office. I think it would have been better, it would have been a better precedent if he had been properly prosecuted and convicted for Watergate break-in and other things of that sort. And I think this argument applies even more to this case where Trump went much farther than Nixon did in trying to subvert the electoral process through illegal means.

Joe: Well, we’ve already gone over time, and I appreciate you extending a little bit with me here, but I want to really plant the seed in everyone’s mind listening. This is going to go to trial, right? I think we’ve all been watching for seven years coming down eight years, like the walls have been closing on Donald Trump. You know, he’s been under investigation from the moment he took office. So, people have become a little bit numb or, you know, inured to the headlines of “the walls are closing in on Donald Trump.” They haven’t closed in yet. This is actually finally an opportunity where he’s going to be sitting in a room with a judge in front of them and 12 jurors of, I don’t know if he has any peers, but 12, you know, let’s say impartial Americans, you know, deciding whether you’re right or not. Whether they agree with your assertion that he is indeed guilty. When is this going to happen and do I have it right or is this going to be some sort of special, you know, event on a cloud or in some behind some closed doors.

Ilya: First, while it is very likely that there will be a trial, it’s not 100% certain. There’s always a small chance that there will be some kind of plea bargain or the like it’s unlikely but in theory it could happen. In theory it could happen that courts would throw out these charges beforehand for legal reasons. Again, very unlikely, but it could happen. Assuming none of that kind of thing occurs, there is likely to be a trial in this case that begins sometime early to mid-next year. I say likely because a lot depends on a discretion of the trial judge. So far it seems like she would like to move the case along reasonably quickly, but you know the ways could potentially arise. So, there is a good chance that next year there will be a trial in this case. Also, a trial in the classified documents case is likely to occur next year and possibly in the New York case as well. So, should there be indictments in the Georgia case, which are likely to come tomorrow. You know that, you know, who knows when that trial will be but one of the difficulties, which is to qui will be sort of trying to schedule all four of these trials in ways that wouldn’t conflict with the state courts. I’m not an expert on that too much and actually don’t know that much about how state courts might coordinate with federal courts to try to keep all of this straight. I’m not an expert on that and in this respect the situation is a little bit unprecedented because it’s rare to have a defendant simultaneously being charged in both state and federal court over multiple issues and also someone who of course this is prominent as Trump and has all these other demands on his schedule. So, we’ll see how it works, but it is likely that at least most of these cases there will be trials next year.

Joe: And again, not to beat this too hard, but you mentioned the trial judge has a lot of prerogative here as far as when the jury, when the trial occurs. You characterize Trump’s actions — I love the word chicanery or any of his legal recourses and his chicanery — can he just drag this out in a sense making it a battle cry I think is he is of course running for reelection as for president. He’s called this his vengeance tour. So, double barrel last question. Can he drag this out, making the claim that you can’t try me while I’m a candidate, it would interfere with the political process. And ultimately if he’s convicted, which again, if I interpret your remarks he could and should be perhaps, can he or future presidents just pardon himself and making our conversation this whole trial and all the charges moot?

Ilya: So, there’s several questions there. One is Trump can of course try to delay the trial proceedings, but the judge in this case and also the judge in the other case, have a lot of discretion as to whether you’re going to let him or not. It seems so far, I don’t know for sure there could be other issues that arise but so far, it doesn’t seem like the judge in the election related federal case that she is very amenable to his efforts to delay things. The judge in the classified documents case, it seems like so far, she’s sort of been splitting the difference between Trump’s demands and those are prosecution. And I’m also not I’m not sure what’s going on in the New York State case. So, while Trump can try to delay things, ultimately the judges hearing the cases have most of the power about scheduling. Certainly, when it comes to federal charges, a president could pardon Trump just as Richard Nixon got pardoned by Gerald Ford. Whether if Trump gets reelected, or gets elected again, rather, if Trump gets elected whether he could pardon himself? That’s actually a point of dispute among legal scholars that issue has never gone to court so if Trump were to pardon himself, the legality of that pardon would likely be challenged in court, and, you know, we’d have to see what courts decide on that. Of course, neither Trump nor any president could pardon him on the state charges in Georgia and New York. So again, there might be, I hope it doesn’t work out this way, but you can imagine a scenario where Trump gets convicted in Georgia. On the one hand, he’s the president of the United States, but on the other hand he’s been convicted in sentence perhaps to prison time in Georgia so in principle we could get a situation where Trump is president United States, and he’s trying to govern the country from a Georgia prison or something like that. I hope that doesn’t happen. I don’t consider it the most likely scenario, but it can’t be categorically ruled out in advance. There are such precedents. A mayor of Boston about 100 years ago being mayor while also being in prison. Obviously, mayor of Boston is a different kind of office than president of the United States.

Joe: Indeed. And again, my final question of course is, this will be tried in front of 12 ordinary people. You and I are both old enough to, I think, remember, I certainly do remember the OJ trial.

Ilya: Yeah, I’m old enough as well.

Joe: Yeah, to have watched that and find it not you know, not guilty verdict, again, for all the OJ supporters in our audience, forgive me but he seemed clearly guilty but the jury didn’t see it that way. If they say he’s innocent, he’s innocent right? He walks. So, not guilty, not guilty.

Ilya: If there’s a unanimous jury verdict that he’s not guilty, yes absolutely he walks just like OJ walked. And while I might consider that to be a mistaken verdict, just as you I think the OJ verdict was mistaken verdict I can’t, you know I don’t need to find or anybody else who doesn’t like the verdict have the power to put him in prison. In that case, you know that’s one of the risks of the jury trial process. If on the other hand you have a hung jury that is the jury simply can’t agree — say 10 jurors think one thing and two jurors think another thing — then those charges can potentially be refiled, you know, with a new jury and you know that would be an option to prosecution would have. Obviously, as with the OJ case, jury selection is going to be quite an issue here, given that even more than OJ Simpson, I think Trump is a person that’s well known to most of the population and many people obviously have strong opinions about him, so jury selection to put it mildly would be more difficult than the average case is probably even more difficult than it was in the OJ Simpson case where he was a big celebrity but not known to quite the same extent as Trump.

Joe: Indeed, well we’ve gone way over time, and I really appreciate you spending the time. Again,  I had you on here because you play it by the book right down the line I think our listeners, whether they think Trump’s the best guy in the world or the worst guy in the world, hopefully both sides got a little bit more information to work with and we’ve continued to deliver a let’s say a nonpartisan, right down the middle kind of explanation of what’s going on so thank you very much for your wisdom and your neutrality and your scholarship. Thank you very much, Ilya, for joining me on Hubwonk.

Ilya: Thank you.

Joe: This has been another episode of Hubwonk. If you enjoyed today’s episode, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes podcatcher. It would make it easier for others to find Hubwonk if you offer a 5-star rating or a favorable review. We’re always grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics you’re welcome to e-mail me at Please join me next week for another episode of Hubwonk.\

Joe Selvaggi talks with legal scholar and George Mason University professor Ilya Somin about the legal merits of the federal indictments against former President Donald Trump and what is likely to come next in the legal proceedings against him and other defendants in the cases involving the aftermath of the 2020 presidential election.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights.  He is the author many books, including most recently,  Free to Move: Foot Voting, Migration, and Political Freedom. Somin has served as a visiting professor at the University of Pennsylvania Law School. He has also been a visiting professor or scholar at the Georgetown University Law Center, the University of Hamburg, Germany, the University of Torcuato Di Tella in Buenos Aires, Argentina, and Zhengzhou University in China. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003.  In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his BA, Summa Cum Laude, at Amherst College, MA in Political Science from Harvard University, and JD from Yale Law School.