TF 31: SDNY (2); still in the house

Harry Litman [00:00:06] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're back in New York City with the SDNY elite crew that you've come to know and told us all about SDNY itself to talk about the potential prosecutions that may still remain in the wake of the Mueller probe. We've been hearing quite a bit from both opponents and friends of the president that the real risk remaining now might come from the SDNY and the investigations that are still open. That Bob Mueller handed off we'd like to try to really unpack those and see what risks there are and to do it. 

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Harry Litman [00:01:05] We have three SDNY alums and very distinguished ones at that first. Mimi Rocah again returns to Talking Feds. Everyone knows Mimi is Pace Law's Distinguished Fellow in Criminal Justice and a legal analyst for MSNBC and NBC News. Thanks for returning Mimi. 

Mimi Rocah [00:01:25] Thanks for having me back. 

Harry Litman [00:01:25] We have Elie Honig returning to Talking Feds, he was again for many years an AUSA in the Southern District and also thereafter in the state system and that matters, in New Jersey, which matters particularly here because some of the possible prosecutions will be on the state side maybe New York maybe New Jersey. So welcome Elie. 

Elie Honig [00:01:48] Thanks for having me. Always glad to be with you here. 

Harry Litman [00:01:51] And then finally, Jennifer Rogers who is at Columbia Law School but a former longtime AUSA and supervisor in the Southern District as well. Thanks for coming back Jenn. 

Jennifer Rodgers [00:02:03] Thanks for having me. 

Harry Litman [00:02:04] All right. So let's dive in. As I said we've been hearing, but it's never really been unpacked so carefully on television, that there are these possible remaining cases that are within Southern District of New York which we know would be worked very aggressively just from what we know and have learned in this podcast about SDNY. So I'd like to sort of focus on what's out there. Just take the opportunity to put it all on the table in one episode. So you know we really have a sense of the different things that are there now it's a matter of public record what's out there. But I'm putting it together and sort of itemizing or assessing each one is I think something that I haven't heard done so I have about four or five specific open prosecutions in the southern district that's public knowledge as I say but I think the roundtable here can really speak to the particular risks. 

Mimi Rocah [00:03:11] So we have first either a prosecution or maybe a series of them growing out of the activities of the Trump inaugural committee. So that was you know as we've known just on the cusp of his becoming president it involves many of his sort of closest friends but possibly others as well. Mimi can I pick on you to sort of you know lay that out a little and tell us what you see about it and Jan and Elie come on, you know, in, to the extent you have other thoughts about the Trump inaugural committee investigations. 

Mimi Rocah [00:03:46] So what I know about it, I have no, really only from public reporting also. And I think in essence it's looking at whether there were illegal foreign donations to the inauguration disguised, you know, sort of channeled through non foreign donors. The different possible charges, that would be campaign finance charges I suppose there could be possible money laundering charges. But it really gets to trying to track down the real source of donations. Is it just who was listed or did they really you know, was it foreign money passing through domestic donors to look legitimate. 

Harry Litman [00:04:26] Yeah. And by the way why would we care. You know obviously if it's against the law it's against the law. But is this a sort of a serious one? Well you know, what are the sort of institutional values that underlie this prosecution. 

Mimi Rocah [00:04:42] Well I think it gets to sort of the heart of all of the campaign finance laws that regulate foreign donations and foreign influence. It's about transparency it's about knowing who is having an influence an impact on our political system. And you have for I think good reason the founding fathers were very hesitant about foreign influence on our political system. And so the campaign finance laws in general I mean not just these laws but are written to try to keep that influence out or if it's going to be there to make it be a known fact, so that you don't have other people in other countries having the ability to influence,say, the president and what his foreign policy is. Jen is reminding me that the Southern District investigation also deals with spending by the inaugural committee. There seems to have been a lot of unexplained,  you know, where did all the money go that they did raise and what was it spent on and you know sort of absurdly high rates paid for hotel rooms I think and things like that. 

Harry Litman [00:05:56] And flate  out unaccounted for, you know, like a high, well, a decent percentage of what was a very high amount for starters. 

Mimi Rocah [00:06:05] Yeah. 

Harry Litman [00:06:05] Let me let me just stick with Mimi for one second. So what is like sort of a worst case scenario here. So somebody who we don't know what it was who was who's foreignfor has influenced potentially --  what would be the worst thing that the investigation would uncover? You know, it's it's a country or a person or what would really be sort of seismic?

Mimi Rocah [00:06:30] Well I think the worst thing quote unquote from Trump perspective would be that it's uncovered that for example Russia had an outsized influence through financial means through donations--. 

Harry Litman [00:06:48] You mean, Putin wrote a check?  

Mimi Rocah [00:06:48] Well, not Putin but Russian oligarchs. You know people who are close to Putin that just like they helped Trump get elected through various means of manipulating our electoral system that they also were able to sort of manipulate the system by donating money in ways that they shouldn't and didn't want people to know because they didn't want them to know that Trump was then beholden to these Russian oligarchs because they were making such donations and so they disguise them. And from Trump's perspective or the campaign perspective the worst thing would be if it was found that people within Trump's orbit knew about this. I mean obviously some people probably did but so who. Who knew about it and what's the proof that? You know, could they be implicated as sort of part of a campaign finance fraud conspiracy type? 

Harry Litman [00:07:40] OK. Well you know serving it up to everybody the refrain you hear often from the Trump camp is, I mean besides "never happened, we never did it. You know, who you're going to believe me or your eyes?" This is small potatoes it's you know for the campaign finance stuff it's a little regulatory violation. Maybe here too we recently with, you know Trump was talking about foreign donation, "Yeah. I'd take it. What's wrong? That's the way it works in the real world." Is it that kind of case where you know in defense if it's proven will be. What's a big deal you guys are you know this really regulatory crime? Or will, you know, is it understood as a kind of serious offense? 

Elie Honig [00:08:24] If this kind of offense is proven, I do not think it will be even remotely credibly cast as what's the big deal, right?. Because first of all we're not talking about a gray area here. The whole idea about foreign information and is that of monetary value or not there is maybe some wiggle room there. But here we're talking about donations. Cash, checks, money. And I think that the inauguration took in nine figures, right? Over one hundred million dollars. So I think we're talking about significant cash donations. So we're not going to have that "what's the big deal" type question. It would be the equivalent of instead of taking these hacked e-mails if the campaign just accepted cash through a conduit right I mean it's probably going to be through a conduit. I would assume but look at you have two big ingredients here that lead me to believe something went down. You have an awful lot of money. I think it was almost double the amount that Obama spent on his 2012 inauguration four. I wasn't there but by what all accounts was not a super large affair. 

Harry Litman [00:09:24] Much less crowded than Trump's, I gather. 

Elie Honig [00:09:27] And you have a lot of shady figures on the other end. I mean we know Manafort was there. We know Rick Gates was there who is cooperating now. So that's a recipe for potential criminality. 

Harry Litman [00:09:36] All right let's move on to the next t case that we know is there and that is also technically a campaign finance but the hush money payments that were covered very --I mean, This is where Michael Cohen comes in. In fact Jen you can, if you have a sense of how Cohen is a figure you know overall, but there is a potential investigation of whether Trump specifically was involved personally in the hush money payments to which--they were clearly a crime already. Cohen has pleaded guilty. So what sort of out there? The word that it's being investigated and how righteous, I might say, you know how important a prosecution is it or is it more of a technical violation if proven?

Jennifer Rodgers [00:10:24] Well this could be a big one in theory. I mean before the Mueller report came out and many people us included started saying that it demonstrated crimes that had been committed by the president namely Obstruction of Justice. This was the thing that people were pointing to to say, "We know that the president has committed a crime and we know it because the Southern District of New York told us, it's charging instrument.". 

Harry Litman [00:10:45] And they're always right. (LAUGHTER)

Jennifer Rodgers [00:10:45] -- against Michael Cohen. So it's a big deal in theory. We know because of the OLC memo that southern district will not be trying to get an indictment against the president. 

Harry Litman [00:10:56] What's the OLC memo? 

Jennifer Rodgers [00:10:57] The OLC memo that says that a sitting president cannot be indicted. But we know there are other people involved. So I think most people expected that when that kind of smoke cleared from the Mueller investigation that we would see actions that suggested that other people would be charged in this. I mean we know that the money came through the Trump Organization. We know that Alan Weisberg the CFO was involved in that. He was given immunity to talk about this. So probably he wouldn't be charged. There was another person who we now know is Don Junior who also signed some of the checks that basically were the funneling of the money through the Trump Organization. So he's theoretically chargeable and there might be other people on the campaign side or on the Trump Organization side or on the National Enquirer side, right? They're the ones who did the catch and kill for the Karen McDougal affair and their CEO David Pecker was given immunity or a nonpros or some sort of immunity--. 

Harry Litman [00:11:56] Nonpros, what's a nonpros? 

Jennifer Rodgers [00:11:56] Nonprosecution agreement , the company, AMI, I believe was given a non prosecution agreement saying that they know that they did something wrong but if they behaved themselves then they would--. 

Harry Litman [00:12:07] Straighten up and fly right. 

Jennifer Rodgers [00:12:09]  Exactly. So there are people who could be charged in this even excluding the president. The question is is that going to happen? I feel like if it was going to happen we may have seen something by now because it seemed like they pretty much had it all wrapped up. You know, we had Cohen charged they put a lot of witnesses into the grand jury around that. We had Cohen testify publicly so now I think we know most at least of what they know about this incident. So the question is are they going to charge anyone else or are they not. And you know I'm starting to think that maybe they are not. 

Harry Litman [00:12:46] And this is kind of a recurrent theme cross cutting into different investigations but you know there is a sense of the errors having maybe leaked out of the tires. You know let's say that they do really build a good case and it's all sort of there. It has to go through Department of Justice and Bill Bar, right? Even if it's not about Trum so it doesn't run headlong into the OLC memo. It's still going to be subject to potential pushback at the DOJ level. How do we see that working is there a sense in which you know that the main department just says we're not going to we're not going to do any of this anymore that was then we're finished? 

Elie Honig [00:13:25] That's a real concern for me especially now that I think we've seen Bill Barr's true colors over the last several months and any criminal charge is going to come out of these payments of hush money are going to be tough calls. It's not going to be like a robbery. Did the person do it or not? 

Harry Litman [00:13:40] Tough calls on the facts in the law or on the policy of whether to charge? 

Elie Honig [00:13:44] Well starting with facts in the law it's going to ultimately get come down to knowledge and intent. . 

Harry Litman [00:13:49] I mean, isn't some of the stuff with the hush payments pretty straightforward? 

Elie Honig [00:13:53] Well some of it is. Here's what's straightforward. Money was paid to these people. I mean they're signed checks. But what makes it tricky is what did this person know about what the reason was? Was it to influence the election or was it for some other reason or did they even know what they were signing the checks for? So you're getting  into--.

Harry Litman [00:14:08] YouI mean the argument we're talking about, "Well it was really just done so Melania wouldn't get hurt? You think that's gonna get a real purchase? 

Elie Honig [00:14:17] I mean, that's what the argument would be at trial, right? It would be the John Edwards defense: These payments were made to spare the family or the individual embarrassment not to try to influence the election. I think there's powerful counter arguments here starting with the timing, these affairs were many years ago and the payments were made right before the election. But you're going to get into who knew what. Look at Donald Trump Junior. We know he signed one of the checks. Did he have any idea what this was for or was he just rubber stamping? If you've ever been in a position where you're signing checks for an organization you don't always know what every check is for every detail of it. And so we're going to get into these intent/ knowledge questions and my concern then is you have Bill Barr and you know where he stands. And think about what it's going to take to get Bill Barr to sign off on a charge of Donald Trump Junior. If you have a surveillance tape of Donald Trump Junior walking to a bank and robbing it, he kind of has no choice, although he probably find some way to weasel around it. But here you're talking about inherently and it's the kind of thing we were talking about on the prior episode or before about Southern District you have to make tough calls sometimes. Do you have a tape recording of Donald Trump Junior saying I'm expert in campaign finance laws and I understand this to be incorrect. No, but can you put together an argument, "He's a smart guy. He's a senior member of this campaign. He's been around this campaign for a long time. He and others took steps to hide it." So yes, that's an argument I'd make to a jury that he had the requisite knowledge, that he had the requisite intent. But can an A.G. come in and say, "Well I see it differently, I'm not going to prove this." Sure. And that's a concern to me. 

Harry Litman [00:15:47] All right. So that's across cutting theme here. We've got the inauguration committee stuff. We've got the hush money payments. What about--there's an investigation afoot, is there not-- abouttwhether they tried to influence Cohen by dangling a pardon? You know, so to speak. This comes up with Cohen, it also maybe comes up with Manafort? Would it be a crime would it be righteous. And how likely is it to come to fruition. Jen?

Jennifer Rodgers [00:16:18]  Yeah, these are tough ones because unlike some of the other obstructive actions that the Mueller Report identified this one is purely presidential in nature. No one else has the ability to dangle a pardon. And so you know it's harder to say than it is in some of the other cases Mueller identified that this is wrongful, it would apply to anyone and there's no possible kind of executive power defense to it, right? Or legal theory like that. 

Harry Litman [00:16:49] What do you mean executive power of defense? 

Jennifer Rodgers [00:16:51] So Bill Barr believes, as do some other "extreme thinkers" that the president's Article 2 powers basically give him--Like, anything that that Article 2 allows him to do he can do absolutely and can't then get himself into legal trouble for having done it. So if he is allowed to issue a pardon in a criminal matter, it doesn't matter if he does that in order to get himself out of possible criminal legal trouble because that--. 

Harry Litman [00:17:20] The reasons are irrelevant. It is that the notion? 

Harry Litman [00:17:22] Exactly. And so that kind of puts this action in a different bucket than some of the other things that the Mueller investigation found that he had done. But if you don't subscribe to that view then when you look at the facts at least as Mueller and his team uncovered them and,you know,  Southern District is looking into this as reported then they're presumably doing their own investigation as well. What you see the president doing in connection with Michael Cohen, in plain view by the way some of it not all of it does start to look like he's trying to convince him that if he just stays the course and doesn't turn on the president that he will end up with a pardon and that he can rely on that and that that will of course--. 

Harry Litman [00:18:07] Let's say those are the facts that are established. There's a crime--leaving aside what you've said is the extreme thing. How does that equate to a crime whatever the elements would be?  What crime would it be in and how do you show-- 

Mimi Rocah [00:18:22] Can I just interject one thing before she answers that because I think it's relevant? There is a second part to the facts of this potential crime which there is the pardon dangling. There is that, you know, when Cohen's office was raided the "Oh my God you know poor Michael he's a good man." Then when it does become clear that Cohen has cooperated, the intimidation starts. And that, a lot of that's in plain sight. And I mean I think all of us probably at various points on our respective networks have have likened that to very mob like tactics of the most blatant example was when the night before Cohen was about to testify before Congress, and Trump tweeted basically, "watch the father in law", you know, watch out. It was almost like if I had had a cooperator about to testify in a trial and some mob guy came up to him in the hallway and said you know your father in law better watch out. I would want to charge that as as attempted witness intimidation. And there were more examples like that that, some of which Trump tweeted there was this whole back channel through someone that I can't remember the name, but another Rudy Giuliani connection. 

Jennifer Rodgers [00:19:36] Robert Costello. 

Mimi Rocah [00:19:36] Costello. There was some Giuliani contact with Cohen. So I think with Cohen in particular you have to look at both the pardon dangling but then also the flip side once he did cooperate which I view as attempted witness intimidation. 

Harry Litman [00:19:50] I mean it is all part of the sort of Goodfellas feel to this stuff. 

Jennifer Rodgers [00:19:54] And Mimi is right that that piece of it has nothing to do with Article 2 powers. I mean that's the sort of thing that we've seen done in cases and that's Obstruction of Justice for everybody. So there are two sides to this. 

Harry Litman [00:20:06] Okay so moving on, I think we have two more that have been part of public reporting. There's the whole stuff with the insurance claims. That's in SDNY I believe. Inflated insurance claims for--You're shaking your head, Ellie. Can you give us the basic skinny. 

Elie Honig [00:20:24] This is the kind of thing that Michael Cohen testified about he was being examined by Representative Ocasio Cortez, right?. And I think this one oddly could be the most straightforward to prove because if you can prove that the president inflated his assets. There's been allegations that he did both. That at times he inflated his assets in order to get bank loans that he wouldn't otherwise be entitled to and that is garden variety bank fraud saying I own these five properties they're each worth five million dollars and I own them free and clear when in fact you only own three-- I'm making this up--but you only own three and there's leans on them. I mean that's what bank fraud is. And you can do that almost entirely through documents. Just here's what his actual holdings were. Here's what he represented to the bank. So those cases could be fairly straightforward to make. There's also the scenario where he deflated his assets either for insurance purposes or for tax purposes is just the converse of what I just laid out. And so again, that's a paper based case. Of course, the overarching question though, I mean, you cannot charge the president during his term while he's sitting under DOJ policy. Will there be a charge afterwards? That's a more complex question that maybe we'll get to later. But these are sort of really not even super complex financial fraud cases, assuming you're within the statute limitations which is the amount of time you have to charge a crime for when it happens which almost always is five years can be a little longer in some circumstances. 

Harry Litman [00:21:49] Actually, Let's go back to the the the idea of charging him later. Let's say SDNY says we agree, we understand the policy we're not going to try to bucket but we want to file an indictment and have it be under seal, you know, until 2020. There's nothing that Barr has said specifically that makes that verboten. Do they A) fight for that, that kind of outcome. And B) How would it play play out?

Mimi Rocah [00:22:20] I think Mueller, at least, has taken the stance that even following an indictment under seal against the president would be forbidden. 

Harry Litman [00:22:27] He has, but I'm just--nd that's something that you know--But Mueller in general has done some over protective measures toward certain offenses. It's not clear are actually required by DOJ policy. 

Elie Honig [00:22:42] I think the more likely way this would play out would be a charge by the next administration. Right. I don't think there's any way that that Barr would sign off on sealed indictments and maybe referred to the reporting that's out there. But I think the question will be will the next Attorney General authorize this kind of charge?

Harry Litman [00:22:57] I mean, and why wouldn't they?

Elie Honig [00:22:59] I can give why they would and why they wouldn't. I think it's a tough call. Why they would is the president committed serious crimes and that needs to be addressed. The "why wouldn't they?" is it would be the ultimate circus sideshow distraction whatever you want to talk about. I mean, let's assume one of the Democratic candidates wins the 2020 election installs his or her new Attorney General. Is that--not the president's decision--but is that administration going to want the very first thing or one of the first things their administration does to be to indict Donald Trump the prior president. Imagine the circus. It would swamp the attention over everything else that this new president was trying to do now. Whose decision should that be? I don't think it should be the president's decision. I think it should be the new attorney general's decision to make but we get into those walls again. 

Harry Litman [00:23:47] It is a really important general point. If and when there's some actual prospect of indicting the former president it's just going to feel very different as was the case say with Nixon and Ford. There's a lot of bloodlust now and outrage. But you know I think there'll be substantial arguments if it comes to that of like, "Let's let's just let it pass and go to the next day.". 

Elie Honig [00:24:12] There could be pardons, too. to add. 

Harry Litman [00:24:13] That too. That's another epoisode. All right, I think there's one more that is sort of in the SDNY as a public matter and by the way one thing to think about is how likely it is that these are going to give rise to new investigations that we don't know about. But we have the lobbying violations that have been, uh, okay-- okay so I mean it's sounding like there's a I don't know catch 22 but a kind of hermetic seal against ever indicting any president for any kind of violation. You can't do it while they're in office. OLC memo. You can't do it after. "You know, too crazy, hubbub, big distraction." So is the real possibility that a president any president is essentially insulated from any kind of criminal prosecution and is maybe that a good thing overall are the sins to be dealt with by impeachment and impeachment alone? 

Jennifer Rodgers [00:25:15] Well one problem I think is we've seen the kind of catch 22 that we're in now and how impeachment really at least in our current time is not seeming to be the tool that the framers intended it to be. So you know I think it's part of the reason that it's time to revisit this OLC memo. This is kind of a given, this OLC memo means that the president can't be charged while he's sitting. That's certainly the way that the Department of Justice's is telling us it is right now. But when you look at the memo itself it's actually not at all an open and shut case that that should be the case. And it just puts us in such a precarious position. And you k. Now, people talk about OLCt 

Harry Litman [00:25:55] Us the Country. 

Jennifer Rodgers [00:25:57] Once they speak, you know, all  is resolved. But you know, the other day we had an OLC memo explaining to why it is that Munuchin is on solid ground defying a very clearly written statute and not turning over the president's tax returns. So OLC doesn't always get it right. And this may be one reason why part of what we need is a revisiting of that issue with some legal analysis that that stands up a little better and think about whether a sitting president should be able to be charged if they should be given the crimes and so on. 

Harry Litman [00:26:28] And absent that are we in the position where you know that it's just not on the table to prosecute a president? 

Elie Honig [00:26:34] I don't think so. I mean as long as the DOJ policy remains on the books we will not see a federal charge against a sitting president. But I don't think any of us is saying that a president cannot be charged once he's out of office whether by impeachment or by election or by just serving two full terms. All I'm saying is that's a very difficult decision. It's a fraught decision. It's a decision that has to be made in the real world and in light of politics and reality. But can that decision be made to indict a president who's just left office. Of course. 

Harry Litman [00:27:01] Well you said, you seemed to underscore maybe I got this wrong "federal charge". Were you meaning to include...I mean talk about a can of worms. A state charge against a former or current president. 

Elie Honig [00:27:11] There's a separate legal question as to whether a state prosecutor and likely this would come from a state Attorney General New York, possibly New Jersey where I worked can lawfully indict a sitting president. And we don't know the answer to that but I guarantee you the first exhibit to the motion to dismiss the indictment will be the OLC memo. So the same rationale here and the rationale for the LLC memo is essentially it would be too disruptive to have the president trying to run the entire country and the executive branch while under indictment potentially on trial. And so I would argue they got it right. If I was defending the president I would say DOJ got it right this policy that they've had on the books since 1973 is correct. And this brief is why and it's just as disruptive or perhaps even more disruptive to have your State attorneys general, which some are elected some are appointed . And there's not sort of that level of accountability if you allowed state A.G. to start indicting sitting presidents, it would be a free for all. 

Harry Litman [00:28:14] Today's sidebar is, fittingly, an all NY affair. And it's as impressive as Times Square at midnight. Ellie analogize the SDNY-EDNY rivalry to the Yankees Mets rivalry with SDNY of course playing the over dog Yankees. Well, today's sidebar comes to you from the one and only longtime voice of the Yankees Michael Kay. Michael has been a household name in the Bronx and all five boroughs for over twenty five years with a list of awards to rival the number of Yankee World Championships. It's incredibly generous of him to do today's sidebar since as every Yankee fan knows. He recently had vocal surgery and is turning down all outside appearances to save his voice for Yankee fans. And now Talking Feds listeners. Michael's topic today is also as New York as an egg cream. It is whether New York State can punish a person twice for the same conduct which has been a topic of intense interest. In the cases of Michael Cohen and Paul Manafort in particular. So in the words of Michael Kay, "Let's do it...". 

Michael  Kay [00:29:40] Can New York state prosecute someone following a federal conviction for the same conduct. Sometimes the same conduct. For example bank fraud is a crime under state and federal law. Can a person be convicted twice for the same conduct. Your first thought might be no of course not. The double jeopardy clause of the Constitution protects against this serial punishment for the same conduct. But it's not that simple. Under the constitutional doctrine of federalism. The states and the federal government are viewed as separate governments. Separate governments can make and enforce their own criminal laws. Thus the double jeopardy clause doesn't stop a separate government or sovereign from punishing someone for the same conduct as the feds. This is known as the separate sovereigns doctrine. The Supreme Court has long recognized the separate sovereigns doctrine. But this last term, a defendant asked the court to overturn it. The Supreme Court refused. And affirmed that the states may prosecute people for the same offense as the feds. But that's not the end of it. Even though the Constitution allows New York to prosecute New York law has its own double jeopardy protection that sharply limits the separate sovereigns doctrine. So New York may not prosecute someone who was convicted under federal law of the same conduct. But there is yet one more wrinkle. In May, the New York Legislature passed an amendment to its amended it's "double jeopardy law to add an exception": If someone receives a presidential pardon, then they are not protected from prosecution for the conduct. Plainly, this law was aimed at providing a backstop in the event of a perceived abuse of his pardon power by President Trump. Because the law is not retroactive it does not apply to anyone who has been tried already or entered a plea like former chairman of the Trump campaign Paul Manafort. Although the law has passed the governor of New York has yet to sign it into law. So the landscape in New York remains as it was, but with the capability of changing with a stroke of a governor's pen. So like many things in law just like in baseball the answer is sometimes. It may turn out New York will be able to prosecute someone for the same conduct, if the governor signs the bill into law after which the person is convicted and receives a presidential pardon. For Talking Feds, I'm Michael K. See ya. 

Harry Litman [00:32:20] Thank you very much, Michael Kay. And again for your great generosity in doing the sidebar, having recently had vocal surgery. 

Harry Litman [00:32:31] So we've got a few minutes just to talk about these were the things on the public record that hopefully we now put in a package that people can kind of digest. What about the more speculative charges? There's a lot of news about where things might go in state court with the, say, the New York Attorney General or the Manhattan D.A. and then just other things that may or may not be pending. Do you have any sense of the kind of add on investigations and prosecutions that may already be underway or that we may be seeing in the future, Mimi? 

Mimi Rocah [00:33:11] You know I have always assumed and thought that the Southern District is used to doing investigations where you start looking at one thing and as you're looking at one thing you discover something else. And I had always assumed that as part of the Cohen campaign finance you know hush money payments that we talked about that they would start looking at the Trump Organization books and records and everything about the Trump organization and that they would uncover a sort of wealth of what I assumed to be fraught, frankly. 

Harry Litman [00:33:46] Isn't it possible that they have and we don't know it?

Mimi Rocah [00:33:48] Well that's what I'm saying. In terms of speculation like I'm assuming that once they start looking at that they will find things that could potentially be crimes and I'm assuming they've already started that. So the question is are there people I mean if not the president, are there other people that would be charged? For example, if you want to look for a second--the New York Attorney General has brought this civil claim about the Trump Foundation and what seems to be pretty clear fraud regarding use of charitable funds for personal type of expenses. That's slightly separate from the Trump Oorganization but it sort of all goes into the mix. Is that something that the Southern District of New York could charge criminally? Probably. And so the question becomes one, is there someone other than the president for them to charge and again, two, would Bill Barr ever authorize a prosecution of anyone connected to Trump? And unfortunately I think all of us sitting here are quite afraid that the answer to that regardless of what the evidence is, regardless of how serious the chrges, is no. Unless it was something as Elli said that is so straightforward that he couldn't possibly say no. Like a video of someone committing a crime. 

Harry Litman [00:35:06] But of course Barr couldn't just countermand a state indictment though as Ellie points out. There could be a lot of and there would be a lot of legal impediments or heavy duty arguments to make. Oay, either either Jen or Ellie have a sense of possible things that will be out there that that will be in the headlines a year from now. But that right now are proceeding apace under state investigation or federal investigation. 

Elie Honig [00:35:32] So I think the New York state Attorney General is in an interesting position in that she was recently elected Tish James and essentially her platform was I'm going after this guy. I'm going to get the president I think at one point she said and everyone who's ever been around him. So on the one hand I think the Attorney General will be feeling a lot of political pressure to deliver there. On the other hand. I think it's a really bad look and a problematic look, to run for the office of attorney general, on the premise of going after this person. 

Harry Litman [00:35:59] Yeah. 

Elie Honig [00:36:00] I just don't think it's what prosecutors should be about. And also I think it opens the door. If she does indict the president or someone around him to do a selective or vindictive prosecution and defense. If you can show a court I was picked out for political reasons, you can get a case dismissed. So I get that that was an important plank in the platform that got the Attorney General elected but I think it really could come back to haunt her in that office. 

Harry Litman [00:36:25] Jen any thoughts. 

Harry Litman [00:36:27] Yeah, I mean I definitely agree with all that. I think though that Trump his organization, his foundation, and everything else related to him are under such a microscope now from so many different people in offices that if there is something there we're going to find out about it somehow or other whether it's criminal charges, civil action, some sort of action to get someone else where they in the course of that disclose the wrongdoing that the organization or foundation or family was involved in. So I just think that most of it or all of it is going to come out. I just don't know what the vehicle is going to be and whether there will be criminal charges but enough people are looking at them and all of their entities that we're going to hear about some of this malfeasance at some point I think. 

Harry Litman [00:37:14] We surely hope. 

Harry Litman [00:37:18] Hi. Harry here. We taped this episode a while back. And on behalf of Mimi Jenn and Ellie I want to add a short addendum: 

Harry Litman [00:37:28] In brief. Nothing of significance has happened with the SDNY's various probes in the time since we had this discussion. But something of significance has not happened. We learned in July that the SDNY had essentially concluded its investigation of the campaign finance violations growing out of the payment of hush money by Michael Cohen to Stormy Daniels and Karen McDougal. That became clear from a government filing saying that the office no longer objected to the release of documents related to the searches of Cohen's homes and offices to which it previously had objected because the investigation was ongoing. So that means that the FDNY closes up shop having charged only Cohen. 

Harry Litman [00:38:22] That's very good news for multiple figures in the Trump orbit, including Donald Trump Junior whom Cohen testified signed that some of the checks to pay back the hush money. And of course the president himself, who seemed to be neck deep in the overall scheme to silence Daniels. 

Harry Litman [00:38:44] And according to FBI reports a number of other figures Keith Davidson, Daniels' first attorney, David Pecker and Dylan Howard of EMI and Hope Hicks had all spoken to Cohen during the time he was setting up the payments, so could have anticipated at least being caught up in the probe as witnesses. The investigation thus seems to come to an end not with a bang but a whimper, with quite a lot of effort expended and only Cohen's convictions to show for it. That happens investigative possibilities fail to bear fruit or peter out. And it's also still conceivable that the office has preserved a conspiracy case against President Trump to consider bringing in twenty twenty one, when it would still be within the statute of limitations, should Trump lose the election. On the other hand, it's public knowledge that the SDNY had sought to interview Trump Organization executives but the prosecutors never followed up and the interviews never took place. That is pretty strange. The SDNY wouldn't normally begin to make overtures to interview someone and then just fold its hand. Some journalists have sought to tie SDNY's decision to another event that occurred about a month after the office sought the AMI interviews. The confirmation of Bill Barr as attorney general. Is it possible that Barr already has brought SDNY to heel.? Right now we don't know. And my personal inclination is that we should assume regularity of conduct from within DOJ. Absent evidence to the contrary. Meaning here that the prosecutors decided they just didn't have more charges to bring. But the bottom line is that one more risk to trump that seemed grave when SD NY was working the case in full force. Has somehow dried up. And gone away. 

Harry Litman [00:41:06] Thank you very much. To Mimi, Jen ,and Ali and thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. 

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Harry Litman [00:41:52] Thanks for tuning in. And don't worry as long as you need answers the feds will keep talking. Talking Feds is produced by Jennie Josephson and Dave Moldovan. Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer production assistance by Sarah Philipoom and Matthew Flanagan. 

Harry Litman [00:42:16] Thanks to Ben Ellman at the Radio Arts Studio on the New York's Upper West Side. 

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Harry Litman [00:42:39] See you next time.