Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now, CNN legal analyst, Elie Honig, is back with us to do a few things, describe what it will take to actually convict the Memphis police officers accused of murder in the death of Tyre Nichols, to explain some of the other charges brought against them, like kidnapping and one called official oppression. Did you know that's a thing? Also to talk about the announcement yesterday by Manhattan DA, Alvin Bragg, that he's presenting the Donald Trump's Stormy Daniels hush money case to a grand jury. That usually means a criminal charges coming.

We also have the DA in Fulton County, Georgia, Fannie Willis, stating in court that a decision is imminent on whether to charge Trump of election tampering there, by this phone call to Georgia Secretary of State, Brad Raffensperger, asking him to find 11,000 more votes for Trump and all of that. We'll put all of this in the context of Elie's new book, Untouchable: How Powerful People Get Away with It. Donald Trump is a prime but certainly not the only example of that in the book. Elie, always good to have you. Welcome back to WNYC.

Elie Honig: Brian, it's always wonderful to be with you. Are you sure this is all we have to cover? I don't think we have enough material to deal with here- [crosstalk]

Brian Lehrer: We have seven minutes, so we can get to it. No, you have longer than that.

Elie Honig: Yes, I know. That's fine.

Brian Lehrer: Let me begin on the news, and we may think most about the Trump January 6th and classified documents cases when we think about Trump and the law right now, but the Stormy Daniels hush money case is now going before Manhattan grand jury, and you write about this case in detail in your book. Can you remind us of what he's being investigated for there?

Elie Honig: I do, and Brian, I got to tell you, this was a bit of a bolt out of the blue. We have just found out in the last day or two that the Manhattan district attorney, and people should understand that as a state-level prosecutor here in Manhattan, is now putting evidence in front of a grand jury about that hush money scheme. We remember in the lead-up to the 2016 election, Donald Trump and his people paid off two women, Stormy Daniels, who is an adult film star, and Karen McDougal, who is an actress, to stay quiet essentially in the days leading up to the election.

Now, what's surprising about this is this had already been fully considered, and this is what I report in my book, the federal prosecutors right across the street in my old office, that's where I used to work, the Southern District of New York, which is part of the Justice Department, had grappled with this two years ago when Donald Trump left office because we probably remember that long-standing DOJ policy says you cannot indict a sitting president.

DOJ, when they were prosecuting Michael Cohen, who ended up being the only person ever prosecuted under this, they knew they could not indict Donald Trump, but what I report for my book in the first time, and I get into the real details, I really actually get inside the room at DOJ, is that the Southern District of New York, they met several times two years ago in 2021 and had this discussion, "Do we charge Donald Trump for this hush money scheme?" The ultimate decision, as we know, because he's not been in charged is no, but the reasons why they decided not to I think are really interesting and relevant to the new story here.

If you're wondering, "Well, how strong might the Manhattan DA evidence be?" They're dealing with a different set of laws, we're talking state versus federal laws, but the same basic core of fact. What I found interesting is that the prosecutors at the Southern District who are in on these discussions uniformly agreed that they had enough evidence to indict Donald Trump. Now, some felt the evidence was sort of close to the line but enough to indict, others felt that it was a no-brainer, but ultimately, they decided not to for a mixture of political and practical reasons, including that they believe that he had committed other crimes that would essentially supersede this crime, not excluding January 6th.

As a result, and this is a great example that I lay out in my book, you have this whole hush money scheme. The only person who's ever been prosecuted for that is Michael Cohen, whose role in this was fairly limited. He was essentially a bad man who cut some checks. He admitted his culpability, but nobody else, not even the most powerful person, Donald Trump. Now we're learning that may change. I should say, Brian, just by way of disclosure here, the current Manhattan DA, Alvin Bragg, is a friend of mine and a former colleague over at the Southern District of New York as well.

Brian Lehrer: What would the charge be and what would the evidence be?

Elie Honig: It's interesting. The charge under New York State law that the DA is looking at here is essentially falsification of business records. What that means is that they took these payments that they made to Stormy Daniels and they characterized them as attorneys fees, when in fact what they were was campaign donations. That would be how they could technically be construed because these were expenditures that Trump and his people were making in order to silence Stormy Daniels in connection with the election.

That, Brian, is usually where we have the potential tension because this kind of charge has been brought before federally, including against John Edwards, we remember was a vice presidential candidate some years ago, and the defense that John Edwards made that's actually succeeded in his case was, "These payments did not have to do with my political fortunes, my campaign. We made these payments to spare me and my family from public humiliation." That's not a crime, but if what you're doing is making payments that actually amount to campaign contributions and you're not characterizing them as campaign contributions, then that can be a crime.

Brian Lehrer: I thought if the Manhattan DA made Trump news, it would be about the tax fraud case that his company, The Trump Organization, and their CFO, Allen Weisselberg, [unintelligible 00:05:50] just convicted of. I want to play a minute of your friend DA Bragg on this show earlier this month on why Trump's closely held company was convicted, and the CFO he worked closely with was, but not Trump himself, DA Bragg.

DA Alvin Bragg: The defense argued that everyone else had their head in the sand, including Mr. Trump. I shouldn't say everyone else, Mr. Trump specifically. In rebuttal, we said, "Look, the former president, this is his namesake corporation. He hired all these people. He set it in motion, and to say that you knew nothing was incredible." Now, that is a significant jump between that and imposing individual criminal liability. We hear Mr. Weisselberg [unintelligible 00:06:36] was, like I said, luxury car, housing, tuition for private school for his grandson. The evidence, we make all of our decisions also based on the evidence, the evidence as to why [unintelligible 00:06:53] warranted the charge, and the jury, and the judge agreed.

Brian Lehrer: DA Bragg on this show. Elie, it sounds like he's saying there was evidence against Allen Weisselberg because he got all these tangible benefits in whatever the legal arrangement might have been. There was evidence against the company, I guess, because of its books, but is Trump off the hook in that case because of lack of physical evidence?

Elie Honig: Well, it certainly seems like Trump is off the hook in that particular case, and I have to say, I'm critical. He's my friend, but I can criticize my friends. I'm critical of the way the DA Office handled that particular case, and this actually plays into some of the themes of my books, and this case, by the way, I should say, predates Alvin Bragg. It goes back to Cy Vance, who was the prior DA, who I'm very critical of him the bug for several different reasons.

What the DAs office did is they charged two people or one person in one entity. They charged Allen Weisselberg, who was the CFO, with this tax fraud scheme, and they charge The Trump Organization, but when you charge a corporation like that with a crime, it really is fairly meaningless. It's just on paper. All that you can get out of that is monetary fines. They clearly, to me, we're trying to flip Allen Weiselberger, which is the right move. As a prosecutor, he's exactly the guy you would want to flip. It did not work. However, they were not able to flip him, and as a result, they just didn't have enough evidence, I think is what the DA, Alvin Bragg, is saying there, to charge Donald Trump.

Now, what I object to is that they let Weisselberg kind of cooperate. They let him cooperate against the corporation, which as I said before, doesn't really mean that much, but not any individual. I think if you look at the evidence against Trump, he benefited so much from his position of power there. He was able to insulate himself. By the way, he's not the first CEO to do this. I lay out other examples in the book.

He made essentially what has sometimes been termed the idiot defense. It's a little bit of a harsh way to put it, but essentially, "Look, I sit in my suite, I'm the boss here, I don't micromanage. How am I to know the details of what my CFO is doing, of what my accountants are doing?" By the way, it's not necessarily a false defense, but it is a luxury that only powerful people, people at the top of a hierarchy have of making that particular argument.

Brian Lehrer: How about the Georgia case in which the Fulton County DA says a report is imminent. How do you see the status of that and Donald Trump?

Elie Honig: Yes, by the way, some people have asked me, "What does imminent mean? Is that a legal term?" No, it's just a normal term. It just means soon, I guess. I believe that all signs, all indicators are pointing towards an indictment of Donald Trump by the DA Fani Willis. I want to say, Brian, I am not one of these people who's always, "Oh, the walls are closing in."

I've taken a skeptical view of many of these prosecutions, but I think if you just read all the things that the DA has been saying publicly, she's, frankly, been a bit boastful about her case, and it seems clear to me that she intends to indict Donald Trump, and imminently, I guess, but I do want to say this, a lot of people are on indictment watch and very focused on indictment, and people who want to see Trump taken down, they almost seem to be casting an indictment as the final victor, the finish line. People, please understand, an indictment is the starting line, it is not the end.

If there's an indictment, the DA in particular will face a very difficult, very uphill, very treacherous road to turn that indictment into a conviction. Now, there are legal reasons for this and there are practical reasons, but the first legal reason is there's a genuine legal question about whether it's constitutional for a local county-level elected partisan DA to indict somebody for anything touching on a federal office, including the presidency.

There will be a debate about whether Trump's conduct actually touched on the presidency or was beyond his duties as president. There's a reasonable chance, in my view, that the federal court step in, Trump will run to the federal courts and say, "No, this doesn't fly." We never even get to a jury. If they do get to a jury, Brian, and I run through this in my book, it will be much easier said than done to get all 12. You need all 12 in order to convict, to come back and find Donald Trump guilty beyond a reasonable doubt, particularly as we get closer and closer to the 2024 election.

Brian Lehrer: These cases are so different. Hush money to Stormy Daniels, Trump Organization tax fraud, tampering with the election in Georgia. Actually, what would the Georgia charge be exactly? What's the crime there if he's indicted?

Elie Honig: There are various Georgia State laws that relate to election interference. It's a crime in Georgia, as it is in every state, but it's phrased a little bit differently, to ask an election official or to pressure an election official to count votes that weren't cast, to not count votes that were cast, or to falsely certify the outcome of the election, and the key piece of evidence, the most famous piece of evidence is Donald Trump's call to the Georgia Secretary of State, Brad Raffensperger, where Trump infamously said, "I would like you to find 11,780 votes," which is just one more than we need.

We also could see a racketeering charge, a state-level racketeering charge out of Georgia, which really just means this was an organized group of some nature and that they committed what we call a pattern of activity, meaning two or more crimes. That would be the likely charge in Georgia. Really, the way to put it in two words is election interference.

Brian Lehrer: The Georgia case, it seems to me, almost goes against one of the concepts in your book, that underlings in business protect their bosses from the most incriminating information about the company, sometimes like the mafia protects the capo, you say. In the Georgia case, Trump himself called Brad Raffensperger and said, "I want you to find some votes." That's crazy rare, isn't it?

Elie Honig: Yes, it is. It's very rare to see the boss pick up the phone in a context that he probably had to have known was being recorded and just do it himself. It is far more common, and by the way, uncharacteristic for Donald Trump himself. If you look back at Trump's history, and I lay this out in the book, he's very good at deputizing people, at using people around him.

I say in the book, I list all the people around Donald Trump who've committed crimes for him and to protect him and gotten indicted or in some cases convicted and imprisoned. This is one instance where he broke out of his pattern. I think he was on tilt, as we would say. I think he was furious, you can hear it in that call, and he made a big mistake. He did it himself.

Now, I do want to say this, though, we all focus on that one line, "I just need you to find 11,780 votes," but we also need to keep in mind, I think it's a little bit of an overstatement. I've seen people say, "That's a smoking gun, game over." That phone call from Donald Trump to Brad Raffensperger is 62 minutes long. It is a hundred-page transcript. Trump, I don't know how much of a defense of him this is, but he is all over the map in that call. He is ranting. Half the things he says are actually okay, legitimate, half the things he says are bullying and inappropriate, and arguably, some of the things he says are criminal, but it's not quite as straight a shot, I think, as some people make it out to be.

Brian Lehrer: Isn't there other evidence of criminality in that phone call? I've heard some longer stretches or, I don't know, maybe I only read the transcripts, but I feel I have a sense that he was basically threatening Brad Raffensperger in that call, not just asking him to illegally find votes that didn't exist.

Elie Honig: He is. There are other passages of that call that I would love as a prosecutor, where he does threaten Raffensperger, he threatens one of the lawyers down there. I think it's Raffensperger's lawyer. He basically says, "If you don't do this for me, you could get charged with a crime," which is ludicrous. He brings every pressure tactic, every psychological, every political pressure tactic to bear in that call.

I'll put it this way, Doug Jones, who is a democratic senator from Alabama, he's no longer in office, a revered democratic senator and a revered prosecutor, he had an illustrious career at DOJ and was a candidate to become the Attorney General, by the way. He was on the shortlist that ended up becoming Merrick Garland. He has said publicly, he held up that transcript on our air at CNN and said, "Anyone who thinks this is an easy case, anyone who thinks this is a smoking gun," he said, "Any half-decent defense lawyer will tear this apart."

Brian Lehrer: Wow. Listeners, your calls are invited for CNN legal analyst, Elie Honig, on the Trump cases, the Memphis case, which we're going to get into right after break, and other ideas from his new book, Untouchable: How the Rich and Powerful Get Away with It. I'm going to ask if the police as a group come up as the rich or powerful and how they get away with things, but your calls are invited for Elie Honig, 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. We continue after this.

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Brian Lehrer: Brian Lehrer on WNYC with CNN legal analyst, Elie Honig, author now of Untouchable" How Powerful People Get Away with It. We've been talking about some Donald Trump cases. He writes about Trump extensively in the book. We're going to get into how to prosecute the Memphis Police officers. I think you'll hear Elie say that isn't a slam dunk either, at least when it comes to the murder charges. From the book, you write that for prosecutors, both fear and favor can deter charges against rich and powerful people. What role does fear play? We don't usually think of prosecutors as being fearful.

Elie Honig: Brian, we do love our cliches, we prosecutors. One of the big one is we do our jobs without fear or favor, but as I point out in the book, that's not always true. When I talk about the fear factor, I don't mean fear of physical retribution. I say in the book, I was a mob prosecutor, people used to ask me, "Are you afraid of these guys, these mob bosses?" I say in the book, "Truthfully, no, they're never going to do anything to me."

Do you know what really is scarier than that, is going after a real powerful person, a connected politician, a famous person who's going to attack you, who's going to try to drag you down, who's going to make it personal. That can be really scary. I'll give you an example of where I mean that prosecutors sometimes don't live by that mantra. If you look at the Justice Department's formal written manual, it's now called the Justice Manual, it's binding guidance on all federal prosecutors across the country.

There are various sections in there that say if your subject, if your potential defendant is a political person, is a well-known person, is a person whose case is likely to generate widespread media coverage, you then have to take that case up to higher and higher levels of review and approval. I give a couple of examples in the book of cases. I was involved in both when I was what we call a line-level prosecutor, meaning just a guy making cases. Later on, when I became a supervisor-- I'll give you one example out of the book.

I talk about a case that I prosecuted here in New York City where we had a well-known, famous Major League baseball player who got caught up on the periphery of a little bit of criminal activity.

I don't say his name in the book, I won't say it publicly here, but people would know who this is. If this was a normal person, if he was not good at baseball and nobody knew who he was, I would've made that decision myself. I was a third or fourth-year prosecutor at the time, never would've gotten a second look, but because he was a well-known person, I had to send that case up several layers on the prosecutorial hierarchy.

I had three or four different prosecutors who had to look at it and scrutinize it and approve it. Ultimately, we decided not to charge the person. I actually think that was the right decision in that case, but the point is, naturally, if more people have to look at a case and more people have to sign off, more scrutiny is going to be applied and there's more opportunities for somebody somewhere in the chain of command to say, "No, I don't see it."

By the way, I don't mean to suggest this is necessarily corrupt, there is a legitimate reason why prosecutors want to be extra careful, because the reality is one high-profile botched case can really compromise the way we look at an entire office. I'll point to Cy Vance again. I argue in the book that he badly botched the Harvey Weinstein case the first time around. I argue that he botched a case involving the Trump children, Ivanka and Don Jr. This is well before Donald Trump became president, and those cases now, I think, will ultimately define Cy Vance's legacy more than the thousands upon thousands of routine cases and his office's legacy. There's a legitimate reason for it, but it benefits powerful people.

Brian Lehrer: Do you think Cy Vance caved to Donald Trump or Harvey Weinstein because of power?

Elie Honig: I do think he caved to Harvey Weinstein, absolutely, because of power. He had a quite a strong case or he had a model, this is public, named Ambra Gutierrez, who made an incriminating tape recording of Harvey Weinstein admitting that he'd groped her and others, and he's still passed. The Trump children was a bit of a debatable call. He clearly had a fraud case against them. They basically were engaged in fraud in selling apartment buildings.

There was a little bit of disagreement on the team, but the problem there is Cy Vance had taken campaign donations from the lawyers for the Trump people. Then when he got out and he tried to return the donations, and then he took even bigger donations later. Just by doing that, I think he really undermined public confidence.

Brian Lehrer: Peter in Stamford, you're on WNYC with Elie Honig. Hi, Peter.

Peter: Hi, how are you?

Brian Lehrer: Pretty good, Peter. What you got for us?

Peter: Thanks for taking my call. I wanted to ask about corporations and unincorporation. I'm curious, if a corporation is shown to not be able to control crime or fraud within their organization, why can't we unincorporate them?

Brian Lehrer: You're talking about The Trump Organization, right? It looks like the capital punishment for companies. We've heard this before in various kinds of cases. Don't they deserve to be shut down as companies, Elie?

Elie Honig: Well, there are various ways to approach a corrupt corporation. We just saw an example. The DA criminally indicted The Trump organization, which has been convicted, but ultimately, the only penalty there is fines, and they had to pay something like $1.6 million of fines, which, frankly, given the scope and the number of years that this covers, is really a slap on the wrist. It was a 16 or 17 year conspiracy, so you're talking about $100,000 per year, basically.

There are steps that the AG, the State AG can take on the civil level and add an extreme. There are ways that you can essentially administer the death penalty to a corporation. It's a difficult showing to make, but it is possible, counter-intuitively in some ways that a civil lawsuit can do more damage to a corporation than a criminal lawsuit.

Brian Lehrer: I think Tim in Brooklyn wants you to follow up on what you said and what Senator Doug Jones said about the Georgia Trump case. Tim, you're on WNYC. Hello.

Tim: Good morning, Brian. Yes, [unintelligible 00:22:27] how would a competent defense attorney pull apart that transcript? To me it seems like the threats are the smoking gun, not the [unintelligible 00:22:38] quoted imploring to find votes that weren't there, but it's really the threats that are clearly criminal activity to me.

Brian Lehrer: Yes, okay. What did Doug Jones mean by a criminal defense attorney would tear it apart?

Elie Honig: I think what a criminal defense attorney would do is a couple of things. First of all, there are several portions in that transcript where Donald Trump says, I'm paraphrasing here, "Look, I'm not asking you to do anything untoward here. I just want to make sure all the votes are fairly counted." He's smart enough to reflexively go back to that talking point several times. You put that in front of the jury, you go, "Okay, look, he's clarifying his intent here. He says this, he got, he's a hothead, but he understands and he clarifies to Raffensperger, "I'm not really asking you to do this," and keep in mind 50/50 doesn't cut it, 60/40 doesn't cut it. You have to prove your case beyond a reasonable doubt.

I also think you might defend this case. By the way, to be clear, I'm playing devil's advocate here. I'm sort of putting myself in the other side shoes. I think you also might say something along these lines, "Look, folks, my client is not the world's most articulate person. He doesn't always use the exact right words to express what he means. If you look at this hour long phone call, he says a million different things a million different ways. He's angry and he's sort of-- The words that he says are all over the map. And so why would you pick this one sentence out of 60 pages and say, there you go. That's the one that he really meant but not the other 59 and a half pages? All you're trying to do in this situation is create some reasonable doubt.

The other thing that you would say is he didn't follow up. Look, he's a hothead, he was blowing off steam. He told Raffensperger, "I want you to just find me these votes," but that was the end of it. He went away. He didn't come back. He didn't try to. Although, another damaging fact is he tried to pressure one of the investigators. Let's remember that. I think that woman's name was Frances Watson, so prosecutors will point back to that.

I think there are arguments both ways. Look, I think there's an ample basis to indict him on this. I argue that in the book, but I just don't want people to think any case, especially involving a person who's at once very unpopular, but also very popular in Donald Trump, I don't want anyone to assume that would be easy.

Brian Lehrer: All right. Let me get your thoughts on the criminal charges being brought against the five Memphis police officers in the death of Tyre Nichols. I want to play a very short clip to get this going. From your network, this is CNN's Danna Bash on State of the Union on Sunday morning asking question of the attorney for the family, Benjamin Crump.

Dana Bash: Are you confident that all of these officers will be convicted of murder?

: I believe they all will be convicted of crimes, whether all of them are going to be convicted with murder, we have to continue to dissect this video.

Brian Lehrer: Elie, I was watching Sunday morning. I saw that live and I really perked up at that answer. Ben Crump not being confident that they're all going to be convicted of murder even though charged with murder. I see that you on CNN have called the second degree murder charge an aggressive charge. What does that mean?

Elie Honig: I think Ben Crump and I are on the same page here, and I think it's remarkable that Ben Crump made that. I think it's candid, I give him quite a bit of credit. Here's my view on these charges. I think these charges were aggressive, as I said on air at CNN. I do think, as I also said on air, they are within the range of broad discretion that prosecutors have.

In other words, I don't think prosecutors have overstepped or overcharged here, but if you think of the reasonable range of charges here, I think these are at the very high end of that reasonable range. Here's why it's not going to necessarily be easy. In order to prove a second degree murder in Tennessee, the prosecutors have to prove a knowing killing. You have to prove that the people here knew to a reasonable certainty that death would result from what they did.

Now, I understand the argument for that. When you punch a person, coldcock a person five times in a row and hit him with a baton in the head and his arms are pinned behind his back you should know with a reasonable certainty you could kill that person. I think that's the argument. One thing that I think is really important here, though, is what did each of the individual officers do? Because there is not going to be a verdict in this case. There's going to be 35 verdicts in this case. We have five people charged, seven charges each. Juries have to come back with a separate and specific verdict on each of those 35 counts.

We may end up with a situation. If you think back to the George Floyd killing, different officers did different things. Derek Chauvin, of course, infamously did the worst and kneeled on George Floyd's neck. Others held him down, and they were all convicted of different outcomes in different scenarios. I think we could see that scenario here.

One really interesting issue to watch, Brian, that I think people need to pay attention to, how will this case be what we call severed? Meaning, how is the judge going to divide these five defendants up for trial? Because as a prosecutor, I want them all together. I want one trial. I want to show the jury and say, "These five, they worked together. They beat Mr. Nichols literally to death. They're all responsible." If I'm the defendant I want my own trial. Especially if I'm one of the maybe less culpable defendants who maybe didn't strike as many blows, not to say he's not culpable, but comparatively, I want my own trial. I want to say the things that these other guys did are horrible but you have to judge my client based on his own specific actions.

Brian Lehrer: Right, and I think we're already seeing some of the cops say, "It wasn't really me. It was really him." Do you see that dynamic expanding into any kind of hierarchy of blame and guilt, and maybe even plea deals by one or more of the cops to throw the others under the bus?

Elie Honig: I think there's two possibilities here. One is just what we used to call a straight plea deal. Meaning, you take a little bit of a reduced charge, we lock in the guilty plea and we'll go our separate ways and we'll both sort of minimize our risks. The other possibility is a cooperation plea, where the person who cooperates has to stand up and testify against his codefendants and stands to get a much bigger benefit.

Now, if you're going to consider cooperating somebody as a prosecutor here, you absolutely have to go to the least culpable person. There's one officer who there's a memorable, horrible sequence. It's all horrible, but particularly horrible where Mr. Nichols is being held up by two or three officers and another officer essentially punches him full power in the face four or five times in fairly rapid succession. I'm not cooperating that guy in a million years. I'm looking for the police officer who is of the five the least culpable. Even then, I'd have to think hard about it, but I think that's the strategy.

Brian Lehrer: We've been talking a lot on the show the last few days about body cameras and their usefulness in police reform and preventing things like this. Does the fact that one or more had body cameras on help anyone's defense or help the prosecution?

Elie Honig: It's really interesting because body cameras are a relatively new feature, relatively new technology. When I moved over to the New Jersey Attorney General's office, in 2012, we took a survey. There's 500 something police departments in the state of New Jersey because we have so many small towns, and only I think it was eight of them like 1% were using body cameras.

One of the things I was involved in for years was this push to basically compel police departments to use them. Now everyone uses them. Now, people say, correctly, "Body cameras don't solve everything. They don't show us everything." I think we saw a good example of that. The pole cam footage, the high-in-the-sky footage gives us a much clearer angle of what's happening than the body camera footage, which is hectic and the cameras being jostled around. That said- [crosstalk]

Brian Lehrer: Meaning there just happened to be a surveillance camera that caught the worst of this on tape. Maybe not their body cameras.

Elie Honig: Right. Body cameras though, they're not perfect, they're not going to necessarily give you the best view, but, boy, if given the choice between body cameras or nothing, or just having a pole cam and nothing else, I'd rather have the body cam footage. It can't hurt. How could it hurt to have more objective information? By the way, I will say candidly, when we were putting this push on for body cameras, we got some resistance from the police unions. What I always used to tell them is, "Body cameras will protect good cops." This happens sometimes, not often, but sometimes if you are accused of wrongdoing and you didn't do anything wrong, play the body cam footage.

We actually had a few specific cases in New Jersey where that happened. Body cameras, I am happy to say and pleased to say, have now become an accepted part of just the police uniform. It's not perfect. They don't solve everything, but they're a step in the right direction.

Brian Lehrer: I want to get to two other points here before you go. One, do you have a criminal take on what might have been purposeful misdirection on their part, speaking to the audio of their body cameras, or at least contradictory words and actions in the heat of the beating? The New York Times notes in a very detailed article that they repeatedly told Nichols to get on the ground when he was on the ground and repeatedly said to show his hands when they had control of his hands. Is that covered in any of the charges?

Elie Honig: I don't think that that is a free-standing crime. I don't think there's a crime involved with calling out commands that are inconsistent with reality, even if you're doing it on purpose, but I do think that's a powerful argument for the prosecutors, that these guys knew they were doing wrong, and that's why you hear them barking out these ridiculous commands that are contravened by what's actually happening. They're trying to lay down a defense for themselves. Why would you say to a person whose hands you have, "Give me your hands." At one point they say, "He reached from my gun."

Now they may maintain we don't have definitive proof, but that's not the case, but I think that that could be some powerful evidence for the prosecutor. They're saying, "Don't resist. Don't resist." Not only is he not resisting, he's trying to calm them down. If you look at the initial interaction, Mr. Nichols is saying things like, "Guys, okay. I'm trying to comply here and you're going overboard." I think that could be important evidence for the prosecutor. It's not a crime in and of itself to lay down that false exculpatory, as we call, but it couldn't help.

Brian Lehrer: The crime would be help be potentially if they were saying something. A witness who was walking by seeing a beating might have heard, "Show us your hands," or get on the ground," and thinking, "Oh, that guy's resisting," when he wasn't resisting.

Elie Honig: Yes, I'm not sure. Again, I think that would be tough to prove as a freestanding crime. You'd have to get too deep inside their heads, but I do think it's fair game for an argument as to their consciousness of guilt.

Brian Lehrer: Last thing, they were charged with something called official oppression. Now, the whole structure of the United States criminal justice and economic system could be taken to court for that, I imagine, but that's another show. Do you know what criminal oppression is under Tennessee law?

Elie Honig: I do. It's one of these strange, maybe archaically named statutes. Essentially, it means an official omission, a failure to do a job that you owe. This is a really interesting development in the law. One of the theories here in that particular charge is that the police officers, A, failed to intervene to stop their colleagues from the brutal beating they were given, and B, failed to render medical aid. This is fairly novel. Really, the first time we saw it on the federal level was in the George Floyd case, where several of the officers, not Derek Chauvin, but the others were charged on exactly that basis, and it was a novel charge.

The jury convicted on it. It will go through the full appellate courts, but I think it will stand up. Now we're seeing it's a different jurisdiction, but we're seeing states apply this as well. I think this theory of charging sticks, that could really change the way that police officers do their job. That's an example of where the law and developments in the law can actually impact the way things work in the real world.

Brian Lehrer: In your book, Untouchable: How the Rich and Powerful Get Away with It? Do you deal with how police get away with it? They're not rich, usually, but they are powerful as not only armed agents of the state, they are also politically powerful, and police violence rarely gets prosecuted or the officers convicted when it does. We reportedly have seen again in this case that the first official reports from the department were substantially false compared to what the videos then revealed. Do you deal with how police get away with it?

Elie Honig: No, I don't deal with police specifically in the book. Maybe that'll be my next book, Brian. You're right, definitely not rich, but absolutely powerful. There have been books about why it's particularly difficult to go after cops. One thing that I do note that's, I guess, related to that is how the law has evolved over recent years. By the way, this is cross-ideological. Unanimous Supreme Courts and several occasions have really narrowed and basically gutted the laws that can be used to go after public officials of all stripes, whether they're police officers or members of Congress or members of state assemblies.

I have a chapter on that, how for all the dissension in the Supreme Court, but one of the rare issues where you will see Justices Sotomayor and Kagan on the exact same page as Justices Alito and Thomas is in slowly but surely narrowing the scope of public corruption laws. At the end of that chapter, I quote a friend of mine who is a longtime corruption prosecutor and he said, "Basically, at this point, it's all but impossible for us to indict anyone for public corruption unless we got videotape of him handing an envelope to the guy marked cash for bribes.

Brian Lehrer: Unbelievable.

Elie Honig: There's been a real change in the law.

Brian Lehrer: Such an interesting part of your book, and we've seen it in New York cases, where politicians charged with corruption have gotten off based on that Virginia ruling primarily.

Elie Honig: That's exactly what I'm talking about. Yes.

Brian Lehrer: Yes. That narrowed what constitutes public corruption under law. We leave it there with Elie Honig, CNN legal analyst, former federal prosecutor, and the author now of Untouchable: How Powerful People Get Away with It. Elie, thanks as always.

Elie Honig: Thanks so much, Brian. Always a pleasure.

 

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