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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone, on this morning after the first criminal indictment of a former president of the United States as you all know. We will devote roughly the first half of our show this morning to special coverage of this historic moment. Then acknowledging that there is a rest of the world out there with people who still matter or should, we will also talk about Vice President Harris's trip to Africa and take calls from any ex-pats in our audience, especially from the three countries she's been visiting Ghana, Tanzania, and Zambia, and we will celebrate the International Transgender Day of Visibility, which is today, with a call in a little after 11:30. That's all coming up.

Here's something to know about any claims of witch-hunt you may be hearing right about now. According to the New York Times, Manhattan DA Alvin Bragg in his relatively short tenure, has brought 117 cases of falsifying business records. That's the charge people think is most likely to be at the center of the Donald Trump indictment. The Times says New York State prosecutors secured at least one conviction in a case in which they combine falsifying business records with election law crimes, which, again, is what people are expecting this to be. We will have two guests in this hour of special coverage. Errol Louis, who is both a lawyer and a New York journalist coming up second.

With me now is Zachary Carter, who has experience that's relevant to this every which way. On the prosecution side, he's been the US attorney for the Eastern District of New York, which includes Brooklyn, Queens, Staten Island, and the Long Island counties Nassau and Suffolk. On the defense side, he is chair of the Legal Aid Society Board of Trustees. On the judicial side, he's been a judge on the criminal court bench in New York and a magistrate judge in federal court. For good measure, he was New York City's Corporation Council for five years. That means he was the top lawyer representing the City of New York. Mr. Carter, thanks for giving us some time this morning. Welcome to WNYC today.

Mr. Carter: Oh, my pleasure to be here.

Brian Lehrer: The arraignment and official reveal of the charges is not expected until Tuesday but do you have reason to believe that they will be something like falsifying business records to cover up the Stormy Daniels hush money payments in order to benefit Trump's 2016 campaign?

Mr. Carter: That's been the speculation and based on reporting in terms of the identity of witnesses who have recently appeared before the grand jury, that seems to be a reasonable conclusion.

Brian Lehrer: I cited that stat from the Times about DA Bragg bringing that charge falsifying business records 117 times since taking office just last year. Can you see that stat having a role in a potential trial?

Mr. Carter: That stat is not something that's going to come to the attention of the jury. I think the stat should be more important for the media reporting on this case so that puts things in perspective. The prosecution of business records case is bread and butter for the white-collar prosecutors of the Manhattan DA's office. Combining those charges with a felony that the false business records are intended to support is just not unusual. It's routine.

Brian Lehrer: You say this is not likely to come before the jury, that stat, but would it be potentially needed to negate any potential claim of selective prosecution, a witch-hunt defense, if you will, which is what Trump is using so far in the political context?

Mr. Carter: A witch-hunt defense only plays in the court of public opinion. It is not a legal defense. It wouldn't be a relevant consideration for the jury.

Brian Lehrer: Let me pursue this one step further because Trump, like anyone else, is innocent until proven guilty. Let's say the evidence is strong on the merits regarding his behavior, is there any version of a claim of political prosecution that could sway a jury? Is there any history of that in other cases or would that even be allowed if the evidence proves beyond a reasonable doubt that he's guilty on the merits?

Mr. Carter: All right, with any case tried to a jury there are considerations that a jury should take into account that are required by law. That is, in terms of the elements of the offense as explained by the judge, the standard of proof, understanding of evidence that they're entitled to consider and evidence that they're required to disregard based on the judge's rulings. Those are issues of what the jury's legal obligations are and the instructions they receive, but juries are human beings and they cannot purge from their knowledge and experience base what they're exposed to in terms of published accounts about cases.

They're not going to disregard their views on the importance and the status of certain persons who may be indicted. For instance, in cases involving police officers accused of misconduct against civilians, classically in civil rights cases involving either assaults or other abuse of authority or homicides, every prosecutor with experience in prosecuting those cases knows there's a going to be, as a practical matter, an elevated standard by which lay jurors are going to judge those events. You have to prepare to present an even more compelling case than you ordinarily would have if the defendant is a police officer.

Here, you're going to have 12 ordinary citizens of New York city who are going to be sitting in judgment in the novel case against the former president of the United States. You can bet that the jury perhaps even subconsciously is going to be applying a somewhat higher standard before they make a decision to convict beyond a reasonable doubt someone who was formally the president of the United States. I'm sure that the Manhattan DA's office will have taken that into account in making sure that they have as compelling a case as they could pull together to present to this jury.

Brian Lehrer: The defense would have to communicate that with a wink or an assumption that the jurors' minds are working in the way that you just described, as opposed to trying to show, "Aha, this is political because we can show you this piece of evidence that it's political."

Mr. Carter: I think that there are matters that even without a wink that defense counsel can assume are going to be on the minds of jurors that are reasonably well informed, who read the newspapers, who are exposed to the news, who are on social media, that they don't need to make a huge deal about the political implications of this case. Those are apparent. Jurors are going to evaluate this case, frankly, with that in the backdrop. That's because they're human.

Brian Lehrer: Got it. Now, listeners, because you're human, our phones are open for your reactions too or questions about the indictment of Donald Trump. We do know that it's an indictment even though there hasn't been an arraignment yet because both the DA's office and Trump have confirmed it but if you have a thought or a question about the legal details, the politics that surround it, the potential domestic terrorism implications for that matter, the importance of it for our country, for better or worse, to have a former president indicted for the first time and on the charges that are expected in this instance.

212-433-WNYC, 212-433-9692. For former New York Criminal Court Judge, former New York City Corporation Council, former US attorney for the Eastern District of New York, Zachary Carter, 212-433-WNYC. Mr. Carter, another thing we're all watching for, as you know, is whether Trump is charged in connection not just with the Stormy Daniels case, but with the crime his company the Trump Organization, and his CFO Allen Weisselberg were already convicted of by a Manhattan jury in a tax evasion case brought by Bragg. Here's a clip of DA Bragg on this show just after that conviction answering my question, why wasn't Trump himself charged in this case if he ran the company not just Alan Weisselberg.

Alvin Bragg: The defense argued that everyone else had their head in the sand including Mr. Trump- I shouldn't say everyone else, but Mr. Trump specifically. In a rebuttal we said, look, the former president, this is his namesake corporation. He hired all these people, he set it in motion. To say that he knew nothing, was incredible. Now, that is a significant jump between that and imposing individual criminal liability here, Mr. Weisselberg was, like I said, a luxury car, housing, tuition for private school for his grandson. The evidence with all of our decisions based on the evidence, the evidence, as Mr. Weisselberg wanted the charge, and the judge agreed.

[end of audio playback]

Brian Lehrer: That's a little bit of why Bragg didn't charge Trump then but listen to what he said to me just after that.

[start of audio playback]

Alvin Bragg: What the public should know is that while that team was operating on full display, other members of the team with the same level of integrity and rigor, and professionalism, were working on other streams. That's the type of representation that the people of the state of New York are getting, and when we are in a position to report out, we will.

[end of audio playback]

Brian Lehrer: Alvin Bragg here on January 16th. Mr. Carter, do you understand that explanation of why Trump wasn't part of that original tax evasion case? Does that second response make you think that could be part of an indictment now, not just the Stormy Daniels hush money cover-up?

Mr. Carter: Yes, I agree. I believe that there was never any reason to doubt that the Manhattan District Attorney's office was not continuing to investigate Donald Trump's personal complicity in the financial fraud case that was brought against the Trump Organization. Again, his complicity would have to be proven beyond a reasonable doubt. I think that the level of proof that would convince a jury, particularly again, in the case of a former president of the United States, is elevated. I think that it made sense for the Manhattan DA to take whatever time he and his senior people deem necessary to build the most compelling possible case against Trump.

It's a matter of I think of public record that Weisselberg was a key figure in that case, and that he would be in a position to shed substantial light on whether or not Trump was fully aware of all the financial improprieties that were occurring, whether he was both knowledgeable and also whether or not these things occurred at his direction. I'm sure that behind the scenes, there's a lot of work put into trying to put Weisselberg in a position where he perceives it to be in his best interest to fully cooperate in an investigation and a prosecution of Mr. Trump, and those things take time.

Brian Lehrer: It sounds like you wouldn't be surprised to learn on Tuesday when the judges are revealed that that's part of it, the tax evasion.

Mr. Carter: Not at all.

Brian Lehrer: Thinking like a prosecutor, from your experience as US Attorney here in New York, what must DA Bragg think he has in order to jump into the abyss like this and bring any charges against Trump? It definitely takes some personal courage. I think we have to give him at very least that with the safety threats to him and his family personally, and his whole team of prosecutors, by extension. He does have this discretion, I think, to decide the risks aren't worth it for the specific crimes involved. I'm guessing he must think he has a slam dunk case of some kind, but I don't know. What do you think as a former prosecutor that DA Bragg must have weighed in his mind before deciding to go through everything he's about to go through?

Mr. Carter: I started in the prosecution business 50 years ago. I can say that I have never met a prosecutor, state, federal, local who has taken into account in making a decision whether to prosecute or not their personal safety or that of their family. That's just baked into the cake when you are a prosecutor. That's something that I think you accept that there may be risk, but I think that people generally plow ahead and notwithstanding those risks, and do what they think the evidence dictates. Now, unfortunately, some prosecutors may be affected by other kinds of considerations, but in terms of personal safety, I've never known a situation in which someone decided not to bring a case because they were afraid to do so.

Brian Lehrer: Do you think the personal safety implications are extraordinary in this case, however?

Mr. Carter: Well, they are extraordinary because obviously, this particular defendant has shown no inhibition about inspiring violence in his devoted followers, as evidenced by January 6, and the fact that he has doubled down on exhorting his minions to protest vigorously in the event of his indictment. The risks to public safety certainly are elevated, but prosecutors prosecute violent drug cartels and organized crime figures too so there are always those risks. This situation, I agree, is unique. When you have the cheerleader for violence being a former president of the United States, that's different and certainly something that would cause you to focus attention.

Brian Lehrer: One more thing on that, and then we're going to go to some phone calls. People have a whole host of observations and questions as you might imagine. Trump has already posted a photoshopped picture of himself taking a baseball bat to the district attorney's head, and Trump had said if he's indicted, there will be death and destruction. Do you think Trump might have committed any additional crimes with any of those posts?

Mr. Carter: Well, it's my expectation that that is a matter that would be under investigation.

Brian Lehrer: Let's take a phone call. Anthony in Killingworth, Connecticut, you're on WNYC, with former judge, former prosecutor, current chair of the Legal Aid Society, Zachary Carter. Hi, Anthony.

Anthony: Hi, how are you?

Mr. Carter: Hi. Good morning.

Anthony: [unintelligible 00:18:09] talking to you in person. Good morning, Your Honor. I would like to say that I totally agree with you about hoping that Alvin Bragg has a slam dunk case. I was a police officer for 24 years, and I think that most of the prosecutors and ADAs that I dealt with one of the primary considerations was, is the case winnable? Aside from that, there was a tidbit in The Times, I believe, last week where they spoke about Allen Weisselberg jettisoning his legal team that was supported by the Trump Organization.

There was speculation in the article that he could be testifying to this grand jury. We might not know about it, because as a prisoner at Rikers, he'd be coming in a very private entrance, there'd be no public fanfare, and it's not observable to the public. He as the former CFO would have intimate knowledge of all of these payments, and who knew about them, and the rationale for them. I was just curious that maybe he's divulging things that would corroborate Michael Cohen's allegations and he's a much more credible witness, if you will, especially for public opinion and for the court and a trial.

Mr. Carter: I agree with you on all counts. The fact that Weisselberg is currently in detention certainly means that the media that has been laying outside in wait for observation of witnesses coming in and out of the building where the grand jury is held. That would not be something that they could monitor. That's a very interesting point. Part of the process of trying to encourage witnesses to cooperate is very often to communicate to the extent that you can be consistent with ethical restrictions. Helping these prospective witnesses understand that they should be represented by counsel who have their personal best interests at heart and their interests only, and are not working primarily for persons who are under investigation as opposed to the witness.

You would want to be represented by someone who's undivided loyalty is to you, that is to Mr. Weisselberg and not to Donald Trump or to the Trump Organization. You can expect that those kinds of conversations have been had with Mr. Weisselberg, but it's going to be up to him ultimately as to who he retains as counsel. It's going to be up to that counsel to decide as he or she should whether or not they're going to act in the best interest of Mr. Weisselberg and Mr. Weisselberg alone, and not be influenced by the fact that it's possible that their fees may be paid by the Trump Organization.

Brian Lehrer: It's my understanding, correct me if I'm wrong, that Weisselberg did not in any formal way, as some defendants sometimes do when there's a person up the chain from them, who might also potentially be charged, did not actually enter into some kind of deal to cooperate with prosecutors in this case regarding Trump. Correct?

Mr. Carter: As I understand it, that is correct. That is almost always a reflection of the amount of practical leverage that a prosecutor has over a prospective witness. Whether or not a witness feels compelled to enter into a cooperation agreement more often than not is determined by whether or not they believe that the prosecutor has sufficient evidence to assure their conviction and sentencing for an offense that they're concerned about.

Brian Lehrer: What do you think it's like for Allen Weisselberg at Rikers, by the way? We know how rough it is there for the average person who has to spend time on Rikers. Here's this rich old white guy. Does he special private cell or wing or what's it like for Allen Weisselberg at Rikers Island, as far as you could tell as former New York City Corporation Council or in any of your other roles?

Mr. Carter: Right, well, I have no inside knowledge as to any special arrangements that the Department of Corrections would've made to provide for his safety. The corrections officials make individual determinations all the time based on the nature of the charges for which defendants have been convicted and sentenced, age, health, gang affiliations, for instance. All those sorts of things are taken into account. It's hard to imagine that for a person who probably, given his line of work, never expected in his wildest imagination to be spending a day in his life in any jail or prison.

That this isn't an extraordinarily stressful situation that most reasonable people would not want to see prolonged. If the DA is in a position to bring additional charges within the statute of limitations against Mr. Weisselberg, that could result in an extended term of imprisonment beyond what he's already serving. That could certainly focus the mind and encourage more vigorous cooperation with Manhattan DA's office.

Brian Lehrer: Yes. But also, I mean, most New Yorkers would not want to see him get special treatment. Do you think he's getting special treatment?

Mr. Carter: I think most New Yorkers when you think about the plight of people detained at Rikers, would want any prisoner to be detained in an environment that's safe for them. I don't know if it's an issue of special treatment, but he's entitled to be safe from harm. I have no idea beyond that what are the terms of his confinement with Rikers.

Brian Lehrer: Gary in Queens is calling, having been hearing some reasons why Bragg's case might be weak against Donald Trump. Gary, thanks for calling in. You're on WNYC with Zachary Carter.

Gary: Hi, Brian. Mr. Carter, I don't defend Trump. In fact, I wrote an article, an anti-Trump article recently, but two weeks ago I wrote an article showing how this case with Bragg, which has three, I can mention three flaws in the case, is on purpose. It's a weak case. They want to energize his base because they want to catapult Trump to the nomination. What's going to happen is already happening now. His polls are going up, talk show hosts, which you don't listen to, but I do all over the country, have an internet radio, they're saying every competitor to Trump, including DeSantis must support them now.

Brian Lehrer: Wait, Gary, first let me say that I listen to all kinds of shows. I have the internet too, and from all kinds of points of view on radio and television. Are you arguing, Gary, just so we're clear on this, are you arguing that this is a political prosecution, but for the sake of helping Trump become the Republican nominee, because Alvin Bragg and other Democrats think he'll be weak?

Gary: Let me finish the scenario. The answer is yes, that's the backstory. What's going to happen next year is that Trump will be indicted for obstruction in the Mar-a-Lago documents case. That's a good case, and he'll deserve to be prosecuted for that. When that happens, all of these competitors are on board with Trump, and they're going to be,-- their credibility will be eroded. That's sounds like a conspiracy theory that may not be likely, but everything is falling into place right now. I could give you other examples.

Brian Lehrer: I'm going to leave it there, Gary, I appreciate that, so on his main point, I don't know, I didn't think that's where he was going to go. That sounds really farfetched to me, Mr. Carter, but how about you?

Mr. Carter: I'm not inclined to believe in conspiracy theories. I have to respect those who tend to think that way. I think that there are just certain forces, right? There's a certain momentum of events that have inevitable consequences without people having to conspire and contrive certain outcomes. As a natural result, a consequence of Trump being indicted, there are people who are going to react in various ways to that indictment. There are core supporters of Trump who are going to be inspired to even more fiercely support him.

There are obviously going to be negative consequences for large numbers of potential supporters who may think that they can do better than having a person under indictment as their preferred candidate for President of the United States. I don't think there are people in any prosecutor's office who are conspiring behind the scenes to try to manage a prosecution in a way that has a particular political outcome one way or the other. I think these outcomes are just a natural consequence of an investigation and prosecution.

Brian Lehrer: We'll continue in a minute with our coverage of the indictment of Donald Trump. Stay with us. Brian Lehrer on WNYC with our coverage of the indictment of Donald Trump. My current guest former US attorney in New York, former criminal court judge in New York, former New York City Corporation Council and current board chair of the Legal Aid Society, the esteemed Zachary Carter. We'll get to more of your phone calls in a minute, and then Errol Lewis coming up in a few minutes on the law and the politics. Mr. Carter, you've been a New York Criminal Court judge. Do we already know who the judge will be for whatever charges DA Bragg is bringing and would it be the same on arraignment on Tuesday if it goes all the way to trial?

Mr. Carter: I am not personally aware of who the judge is who's been assigned. I saw a news report yesterday which on the basis of some reporting, someone opined that it might be the judge who presided over the trial of the Trump Organization but I don't know personally if that's true or not.

Brian Lehrer: Considering the political and media circus that's beginning to be unleashed, and that presumably is going to intensify in lower Manhattan, what do you see as some unique challenges for the judge in this case? Does all of that not really bleed over to anything that would happen from the bench?

Mr. Carter: I think the judge's highest priority in a case like this is to shield the jury and prospective jurors and the jury selection process from outside influences to the maximum extent possible. That's the challenge in any high-profile case. This will be an uber-high, obviously, profile prosecution. That will be the greatest challenge.

Brian Lehrer: What about in the scenario for the judge, if Trump incites people to violence on his behalf, if it appears that that is happening to the bench?

Mr. Carter: I think that most judges that I have had the privilege to appear before, have had as colleagues who I've known over the years would land on Donald Trump like a ton of bricks if he were to engage in activities that were calculated to gin up potentially violent protests outside the courthouse. I think the consequences for Mr. Trump, the potential consequences would be sufficiently severe that if he has wise counsel, that they would strongly counsel him against taking any such steps.

Brian Lehrer: What would the judge have to see in order to say something? We know that Trump has a long history of walking right up to that line in his language. I think he's very careful with his language in this respect to preserve some plausible deniability for himself. Like he called all those people to Washington for January 6th, we'll be wild, everything like that but also said at one point go peacefully. In this case, he can say I didn't call for there to be death and destruction. I predicted that there'll be death and destruction. That's different. Where's that line in terms of where the judge would be justified in stepping in?

Mr. Carter: I think that because of Trump's prior acts, particularly in his role in inspiring his followers to violence on January 6, that the possibility of his being able to rely on some plausible deniability diminishes with every statement he makes, in which he attempts to be, as my father would call it, two-bit slick in terms of trying to weasel word a statement to his followers that he can subsequently claim was not really intended for the purposes that it seemed. I think those days are over for Donald Trump. I think that any reasonably competent judge will see through that and will communicate a pretty strong message to Trump that any attempts that he makes to create an atmosphere in which witnesses, court personnel, prospective jurors, sitting jurors are intimidated will not be tolerated.

Brian Lehrer: As the terms weasel word and two-bit slick make their debuts on the show from the--

Mr. Carter: New terms of art.

Brian Lehrer: That's right. From Zachary Carter. Michelle in is it Campbell Hall, New York. You're on WNYC, Michelle. Hello.

Michelle: Yes, it's Campbell Hall.

Brian Lehrer: Where's that? I actually don't know where that is.

Michelle: Campbell Hall is in Orange County. It's on [unintelligible 00:35:17] the port service line, there's a stop there. [unintelligible 00:35:22] that same place.

Brian Lehrer: My apologies to the people of Orange County for not knowing that part of the area. Go ahead, Michelle.

Michelle: First of all, thanks for taking my call. I just had a question with respect to how Donald Trump will be addressed because the acts are prior to when he was elected. It's really Donald Trump who is taken to task for this, not former President Donald Trump. I think distinguishing the before the pre and the post is important because if he's referred to as former President Donald Trump or President Donald Trump, it will color the jury's perspective of him. I'm just wondering what type of language you think will be used when he is actually in the courtroom? Will it be Donald Trump? [unintelligible 00:36:17] or former president Donald Trump, which gives him some level of importance?

Brian Lehrer: Interesting. Including from the bench, I guess, Judge Carter.

Mr. Carter: Oh, no, including and especially from the bench. My guess is that any experienced trial judge who tries to neutralize any irrelevant references to status in the course of a trial of the defendant who has occupied some high office will simply refer to him and insist that everybody else refer to him as Mr. Trump.

Brian Lehrer: Under New York's bail law, much in the news for other reasons, many non-violent crimes don't require bail to be posted. Would you as a judge, be allowed or required to set bail for Trump here?

Mr. Carter: No. I think that the likelihood is that he would be released on his own recognizance.

Brian Lehrer: Then what? Will he be allowed to leave the state, go back to Florida to live as the case proceeds?

Mr. Carter: Technically, in any criminal case, a judge, as part of setting down the conditions of pretrial release or detention sets out the geographic boundaries of where a defendant can travel. It's hard for me to imagine that a judge would set any limits on Donald Trump's travel, particularly. You can't ignore the elephant in the room and that is he is a presidential candidate and that he as part of that status will be ordinarily required to travel all over the United States in order to campaign. I don't think that any judge would do anything that unnecessarily made that an issue or an unnecessary distraction in the case. I doubt there'll be any limits on his travel.

Brian Lehrer: One more call for you then we're going to switch guests and continue with our coverage of the indictment of Donald Trump. Joe in Lewisburg, Pennsylvania, you're on WNYC with Zachary Carter. Hi, Joe.

Joe: Hi, good morning. Thanks for taking my call. I had two comments that I wanted to make to the general topic. The first is the Republican response to say that this is outrageous or unprecedented when the underlying reality is what's unprecedented is a president or presidential candidate who has been so chronically and demonstrably truth averse. This crime involves alleged deception for a purpose and it fits the Donald Trump playbook perfectly as to the behaviors that he's engaged in for his entire professional life.

Brian Lehrer: But, you can't bring that into court or can you, Judge Carter?

Mr. Carter: Interesting, there may be an extent to which prosecutors could proffer some prior bad acts of Trump that reflect on his credibility, that would seek to bring to the jury's attention, other similar circumstances in which he has made provably false statements, and a judge could consider permitting that evidence as proof, not a propensity to lie, but of Donald Trump's state of mind is whether or not he has made the annoying and intentional false statements. There could be a situation in which prior incidents in which he has made provably false statements could become relevant.

Brian Lehrer: Former US attorney in New York, former criminal court judge in New York, former top lawyer or Corporation Counsel as they call it for the city of New York, and current Board Chair of the Legal Aid Society, Zachary Carter. Thank you for bringing all your experience and wisdom to the coverage of this. Thank you very much.

Mr. Carter: Okay, good to be here.

 

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