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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. If you did nothing else yesterday, but follow a Donald Trump legal affairs breaking news ticker, you would not have been bored. A New York judge, as you probably heard, refused to let Trump post a $100 million bond to cover the $455 million in civil suit judgments against him. Trump might have to post the whole thing, while the appeals of his cases proceed, which might even mean selling some of his buildings, or other properties.

Also, yesterday, the United States Supreme Court in a decision that you probably heard the headline on, and that surprised and disappointed many legal analysts, the Supreme Court announced yesterday that it will hear Trump's claim of immunity from any criminal responsibility for anything one does as President, even inciting an insurrection. Even his lawyers argued, if he were to order the Navy to assassinate a political rival-- Hello, Putin and Navalny, maybe that will become legal in the United States of America.

Then, last night, a judge in Illinois became the latest to remove Trump from the ballot in that state under the Insurrection Clause of the Constitution. The Supreme Court is already currently considering a case involving that from Colorado. What just happened here in the last 24 hours? Why does it all add up to legally, financially, and maybe most important politically?

With us now, Andrea Bernstein, journalists reporting on Trump legal matters for NPR, host of the podcasts Will be Wild about January 6th and Trump Inc, the WNYC podcast about the intersection of Trump's financial interests and the public interest, and author of the book, American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power. Andrea had a New York Times op-ed this month called How Trump Turns his Courtroom Losses into Wins. Hey Andrea, always great to have you on the show.

Andrea Bernstein: Hey, Brian, great talking to you.

Brian Lehrer: Let's start with his courtroom loss in New York yesterday on how much bond he has to post to cover his business fraud judgment, and his sexual assault and defamation judgment. What just happened here?

Andrea Bernstein: Trump has until March 25th to put up the money, or the New York Attorney General, Letitia James can seize an asset. The clock is rapidly ticking, and Trump and his lawyers went to the first department, which is the confusingly named first level of Appeals Court in New York, and asked for-- To be allowed to pay $100 million bond, and to stay certain other provisions, including provisions that he can't get a loan, he and his sons can't run his business, et cetera.

They convinced the judge, a single judge on the Appeals Court, it will be argued before a panel, to stay the business organization aspect, so they can still apply for loans, they can still run the business, but they still have to pay the money, which is $400 and upwards of $450 billions of dollars with interest accruing at the rate of $100,000 a day.

Brian Lehrer: Whoa.

Andrea Bernstein: They're still on the hook for that. They still have to figure out how to pay it, even though they are trying to get that stayed.

Brian Lehrer: Right. The reason for the bond is that, if he eventually loses the appeals, the legal system needs to have access to the money to pay the damages he would owe, right?

Andrea Bernstein: Correct.

Brian Lehrer: He gets to appeal that bond ruling, as you said, so he doesn't have to put up any money quite yet. Andrea, for you who reported on Trump's businesses in the Trump Inc podcast series, do you have a take on how much money he has in cash or property? I mean, you noted in your Times op-ed that Trump has long sought to convince people he has more money than he really does.

Andrea Bernstein: Forever. That is his business model. His business model is, "I'm a great success, come join me. You will be successful too," which is also his political model as well. That is what is at issue. There are various valuations. I think Forbes have now put some at upwards of $3 billion. Trump said in a deposition in the trial that he had $400 million in cash, and then he went on to say how unusual that is for a developer.

Most developers don't have cash. He has cash. Now, he's saying he doesn't have $400 million in cash, or at least $400 million that he wishes to pay back the state of New York. We will see. In fairness, to sell a large asset takes some time. He recently sold a large asset. He recently sold the Trump International Hotel lease in Washington, D.C. for about, I think $360 million, but those negotiations take time. It's true they don't just take a month.

Brian Lehrer: You also noted in the op-ed that Trump uses each of these losses in court to raise lots of money from his supporters. Can he use campaign money that people donated to pay legal bills, or to pay legal judgements?

Andrea Bernstein: I mean, [chuckles] nothing is, in theory, ruled out. Having a foreign benefactor put up the money is not ruled out. Hasn't happened yet, and it does seem like Trump is trying to go a more traditional route by saying he could put up $100 million bond. We just don't exactly know. There's also this pending stock sale coming up with his social media company that he's swarming, that could give him access to quite a bit of money. He has assets. Without a doubt, he has assets, even though he doesn't have the assets that he would like people to think he has. He does have access to money eventually.

Brian Lehrer: How much, if you've reported on this, is his fundraising, keeping up with his legal system bills? I mean just his campaign fundraising, because we all know he's using these court appearances and everything else as political events.

Andrea Bernstein: It's a complicated question. His legal bills are being paid by his political action committees. Last year, 2023, they paid $50 million. Obviously, 2024 has already been exceedingly active. How much they would pay this year, those are not his campaign committee. Those are separate committees. Then, there's a question of, what happens if his daughter-in-law, Lara Trump, becomes head of the RNC, or co-head of the RNC, what happens to the money then?

Without a doubt, he's considered these legal cases as intricately [chuckles] involved in his campaign. One of the reasons that he was understood to have announced so early back when he did right after the midterms, was that he had the idea that, if he was a declared candidate for president, he couldn't be indicted, or might not be able to be indicted. Certainly, what we've seen is, he's used his candidacy, and is using it at every turn to say these courtroom rules can apply, or shouldn't be applying, or shouldn't be applying now to him.

Brian Lehrer: One of the things you noted in your Times op-ed, and I should say, you were in the courtroom covering both the E. Jean Carroll sexual assault and defamation trial, and the business for a trial, right?

Andrea Bernstein: Oh, yes. [chuckles]

Brian Lehrer: One of the things that you noted about that experience in your Times op-ed was that, he complained about having to be at those courthouses, rather than campaigning, but he actually didn't have to be there, so why was he?

Andrea Bernstein: One can only assume, and this really surprised me when in the business trial, because prior to the business fraud trial, there had already been two Trump, or Trump company-related trials. His company was convicted in 2022 of 17 fraud felonies that was in connection with the paying employees in untaxed benefits. Not him personally, but his company.

Then, last spring was the first E. Jean Carroll defamation case, and he stayed far away from those. I just thought, "Oh, why would you want to be associated with these crimes of lying and sexual assault, if you're running for President?" It seemed logical to me, as someone who's covered campaigns for a long time, to stay away. Of course, that is old thinking. I was surprised when Trump showed up for the business trial, and showed up and showed up and showed up, such boring testimony.

Donald Trump would sit in this room listening to it, and then go out in the hallway, where he could set up his shot. There were these barricades that were set up for his protection. He would invariably come out the door of the hallway, stand behind the barricade with his legal team, and call down to the reporters from this. The shot was always Trump behind a barricade, which conjures up jail bars or something.

He would say, "I should be in Iowa, I should be in New Hampshire. I shouldn't be here." It looked like it was, the way that he had decided was most effective to reach those primary voters with this message of grievance. "I'm the victim here. I'm the one who's coming after," and doing this kind of Trump Jedi mind trick, which he always does, which is, "They're coming after me, therefore, I'm going to represent you in all the ways that they," undefined "they", are coming after his voters. He used that to great effect.

He certainly has raised money over it, and look how well he's doing. Then, what you see is, all these Republican party officials when questioned, Elise Stefanik, even Nikki Haley initially, they're saying, "Well, I don't know if the allegations are true." Then, you just cast doubt on the whole court system, and that too benefits Trump in this environment.

Brian Lehrer: Let's go on. My guest is Andrea Bernstein, who's long been reporting on Donald Trump, his business interest, as well as his politics for WNYC and NPR and others. Let's go on to the Supreme Court and the immunity case. I'll note you're a journalist, not a lawyer, but are you surprised they took that case yesterday?

Andrea Bernstein: I've heard arguments [chuckles] that the Supreme Court, and you might recall that. You did mention in The Run-Up, but we did a podcast with ProPublica On the Media on Leonard Leo, and the conservative movement of the Supreme Court, so I've spent a lot of time thinking about the Supreme Court, and not much that they do surprises me. I have heard both arguments.

One is that, they were just going to let the DC Appeals Court ruling stand, let the trial go forward and say, "Come back to us when it's over," and then the other one equally compelling, or the Supreme Court, this is a matter of great moment, we have to weigh in. That seems to be consistent with how-- I've watched Trump go to the US Supreme Court twice in just the New York cases.

I just looked it up this morning in the Trump v. Vance case, which was the case while he was President, and he was arguing that the then Manhattan DA Cyrus Vance could not get his tax returns, because he was President of the United States. That case went to the Supreme Court for oral arguments the first time in May of 2020. It was decided in July of 2020. It was a similar argument.

When you have a President, a President is the executive, the executive is the President. It's not like he can hand his job off to somebody else, while he attends to criminal matters, so he is making the case again. Now, he has lost it twice, but it does seem that the Supreme Court wants to weigh in, and is going to weigh in, because they see this is a matter of great moment.

They are ignoring the, forgive the pun, elephant in the room, which is that, having this case, it is now February, having it not decided until likely the end of June, is a great win for Trump, because he-- The amount of time that you can shoehorn a trial before the election, and have the American people know in this crucible of the criminal justice system, where you have the prosecution, and the defense, and the judge, and the jury, which is supposed to establish truth in this country, to have that process go forward is extremely tight.

Brian Lehrer: Right. They're going to hear it in April, they say, and then the ruling could come down shortly after that, maybe in early May, or not till the end of the Supreme Court's term, which is at the very end of June, and when they rule, assuming that they do not give him immunity from anything that he did criminally as President, because that's the going assumption, even though they took the case. When they make that decision, it's going to matter a lot, apparently, to the Presidential race.

I want to replay a clip that we've used before of Trump's attorney in this case in front of the Appeals Court panel actually arguing in this exchange that Trump as President could order the Navy's SEAL Team Six, to assassinate a political rival, and not be held criminally responsible. This begins with the judge's question.

Judge: Could a President order SEAL Team Six to assassinate a political rival? That's an official act in order to SEAL Team Six?

Attorney: He would have to be, and would speedily be impeached and convicted before the criminal prosecution.

Judge: If it weren't, there would be no criminal prosecution, no criminal liability for that?

Attorney: Chief Justice's opinion over against Matheson and our [unintelligible 00:14:38] and the plain language of the impeachment judgment clause all clearly presuppose that. What the founders were concerned about was not-- [crosstalk]

Judge: I asked you a "yes" or "no" question. Could a president who ordered SEAL Team Six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

Attorney: If he were impeached and convicted first.

Judge: Your answer is "no".

Attorney: My answer is qualified "yes".

Brian Lehrer: "Qualified yes," said the Trump lawyer, meaning a President would have to be impeached, and we know that politics being what they are, takes two-thirds of the Senate to convict an impeached president, which is the standard that the lawyer was upholding there, the conviction in the Senate, not just the impeachment, and we know that Trump was impeached for inciting an insurrection, and there were enough pro-Trump Republicans in the Senate that he wasn't convicted, and so it's very hard to convict a President in the Senate of anything that he's impeached for.

If that conviction doesn't happen, then a President could assassinate a political rival, rob a bank, it's inconceivable that the Supreme Court, even the conservative Trump-appointed justices on the Supreme Court would say, that's okay.

Andrea Bernstein: One would think, and in fact, there's this such a rhyming of history here, because when Trump went up in the Trump v. Vance case, where he is trying to keep those records away from Vance, the argument you may recall was in the same level, the Appeals Court judges asked Trump's lawyer, "Well, what if the President shot somebody on Fifth Avenue? Are you saying the DA couldn't investigate?"

The answer was, "Not so long as he's President." It's a similar argument, and a consistent argument that they're making. I think one of the things that strikes me about this US Supreme Court, in reading the obituaries of Sandra Day O’Connor, they noted that she'd come from being a legislator in Arizona, and how the courts have really moved to being people who don't have any political background or history in politics for better or worse, but in this case, there seems to be a real, just a-- I don't know if I want to say ignorance, but of political consequences.

The court is not explaining how all of these delays in the world in which we live, could [unintelligible 00:17:06] to effect the legal case, so they are just operating as if they're operating in a normal judicial case, where a clock isn't running out, where you could have somebody in the Oval Office, that decides to end the case

Brian Lehrer: Meaning, to be specific, that if the justices refused yesterday to take this case, and let the lower court ruling stand, then Trump would have been declared to not have immunity, and the January 6th Jack Smith trial could have started, while the campaign is still in a relatively early phase. This way, even if they say that eventually that he doesn't have immunity, it would be very difficult to start that trial in the heat of the general election after the primary season, and so it works to Trump's benefit.

Briefly, the Illinois ruling last night, ruling number three that came yesterday, that Trump is off the ballot there for violating the Insurrection Clause of the US Constitution. This does not take effect immediately, but early voting has already begun, I understand for the Republican primary there, and this could take effect, while the voting is going on. Does the Supreme Court get to fold this into the Colorado case that they're hearing on the same question, or does this have to come up through the system separately? Again, a timeline issue, if you know.

Andrea Bernstein: My understanding of those are arguments, which I listened to carefully, was that, at least, eight of the justices were not inclined to allow individual states to decide this, and that seems to be coming-- Everyone says imminently, I don't know what imminently means for this court, [chuckles] but it seems unlikely that the US Supreme Court would allow any individual state to take this matter into their hands, because of the way they really seemed across the board to be questioning this case.

Just a footnote on the Jack Smith trial. I was in the courtroom in the New York criminal case. This is the case where Alvin Bragg is charging Trump, essentially, with election interference in 2016 by paying money to Michael Cohen to reimburse him for Stormy Daniels, and then lying about in their business records about what that was. That trial could be six to eight weeks.

It's just start at the end of March, so you're looking at much of April and May in that courtroom, and it's a criminal trial, and criminal defendants definitely, and generally, are required to show up. That's two months of the campaign in a courtroom, and then think about the reality of this. Say the Supreme Court rules against Mr. Trump and the immunity claim, and the trial gets scheduled for August on an aggressive schedule. There's Trump in another trial which can take two months being in a courtroom through what is normally the entire general election season.

The reality of that really set in for me. It's like, "Oh, my goodness. We're going to be here day after day after day with Mr. Trump in a criminal trial until it's resolved as the campaign moves forward."

Brian Lehrer: Then, the judge will have to decide whether the trial should be postponed, so it doesn't interfere with a general election, or that the general election is going to have to take a back seat, so it doesn't interfere with a trial, and that's going to be a very big deal, no matter how it's decided if we get to that point.

Andrea Bernstein, journalist reporting on Trump legal matters for NPR, host of many podcasts, author of the book American Oligarchs: The Kushners, The Trumps and the Marriage of Money and Power. Check out her New York Times op-ed called How Trump Turns His Courtroom Loses Into Wins. Thanks, Andrea.

Andrea Bernstein: Thank you, Brian.

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