Bob Garfield: This is the On the Media midweek podcast. I'm Bob Garfield. It was a tough Monday morning for one guy.
Audio clip: We've been waiting on this decision since the middle of October and now, the middle of February, we're finally getting this decision from the Supreme Court. They are saying that the Manhattan district attorney, Cy Vance, can in fact get access to former President Donald Trump's tax returns. This is something that has been playing out in the courts for more than a year now.
Bob: That there is an oldie but a goodie. The intriguing prospect of an allegedly rule-breaking, tax-dodging, constitution shredding president on trial.
Audio clip: Prosecutors in Fulton County, Georgia, have launched a criminal investigation into former President Trump's January phone call with the Georgia Secretary of State, where he told Secretary Raffensperger to "find the vote."
Audio clip: Meanwhile, New York's Attorney General is investigating whether or not the Trump Organization misled investors by inflating assets.
Audio clip: We should probably expect that there will be charges filed against him, that he will be indicted, and in this case will probably go to trial. I think there's an excellent chance that he will be found guilty and if he is found guilty, there's an excellent chance he'll wind up in prison.
Bob: Not so fast. Late last year in the New York Review, writer, lawyer, and former federal prosecutor, Ankush Khardori reviewed the various arguments, including his own, for the likely prosecution of Donald Trump. Elsewhere, he had characterized such speculation as "insane." Among his critiques: One, too many former prosecutors, himself included, represented in the commentariat. Two, too few defense attorneys who know how to find holes in any complex case, and three, as he told Brooke in December, no one is willing to say, "We just can't know."
Ankush Khardori: I guess it's not a great way to get Twitter followers or cable news hits but it's just fundamentally true. There are lots of things we don't know and facts could change and it's very rare that I see anyone saying that.
Brooke Gladstone: Which brings us back to August.
Audio clip: Cyrus Vance signed a subpoena last year to Deutsche Bank as part of its investigation into President Trump's business dealings. [unintelligible 00:02:19] says the bank complied with that subpoena.
?Ankush: When that news broke, a lot of people were strongly suggesting there might be a bank fraud case.
Audio clip: What the Manhattan DA is looking at here is overstating the value of your assets to get loans, understating the value of your assets when it comes tax time. That kind of thing is straightforward textbook fraud. It's much easier for prosecutors to prove those kind of charges.
Ankush: Well, just compare the two and then he's in huge trouble if they're not the same. A bunch of people were saying this, and not just a bunch of people, but a bunch of prominent former prosecutors with significant followings on Twitter and cable news contributor gigs. I was just really taken aback because I found it was fundamentally very misleading.
Brooke: You basically said the speculation was insane. That you've done this at DOJ and it's simply not how fraud investigations are conducted.
Ankush: That is the word I used in the Wall Street Journal, insane. In particular about the suggestion that had been made by former acting Solicitor General under Obama, Neal Katyal.
Audio clip: I think it's totally possible for all of this to come out before the 2020 election in terms of New York's prosecutors getting this information and acting on it.
Ankush: That was really surprising to me, coming from someone who is at least supposed to know better.
Brooke: According to convicted Trump lawyer, Michael Cohen, Trump inflated his assets when it was opportune to do so, deflated them when that was profitable. If Cohen is right, doesn't that mean that a prosecutor could just compare one accounting book with another, find the mismatched numbers and it's over?
Ankush: No. [laughter] It's a very reasonable supposition but when you're investigating a financial fraud case, the fact that some documents, some numbers may differ from one set to another, is often just the start of a case. You have to figure out why they differ, does it matter why they differ, who prepared them? If there are lawyers, accountants, and auditors involved, what did they have to say about the relevant figures?
Trump did not have a huge business. This is something that I think David Fahrenthold at The Post has been very good at illustrating for the public. He had a fairly small organization, but that organization still had lawyers, had an accountant. That is going to substantially complicate any investigation.
Brooke: If the lawyers overstepped and they can't prove that this was a conspiracy with which Trump was involved, then he's not liable?
Ankush: That's correct. We don't even really know what Trump's involvement was in the preparation of any of these figures. That would be the crucial question. You'd want emails if they exist, and of course, he notoriously does not use email. You'd want to know whether he had spoken to people and provided them potentially with oral instructions. Now in the case of Cohen, that is what he says, that Trump instructed people to falsify these figures.
Brooke: But he's not a great witness. [laughs]
Ankush: He's not a great witness at all so you would want people to corroborate that, you'd want much more than Michael Cohen ideally. If you're just playing the odds, the odds usually disfavor an indictment. People do things that look problematic, you look a little closer, there are sometimes innocuous explanations, or maybe you just can't build the case to prove what you think really happened and so charges are not brought. There may not be a criminal case against the president, even if the Justice Department looks aggressively at what we know so far and digs up additional things, and that's itself a big if.
Brooke: You say that there's a bunch of assumptions built into this genre of reporting, the reporting on the President's future prosecutions that baffles you.
Ankush: One of the assumptions is that there is a criminal case, it's just which one and where do you find it? Another assumption is that Cy Vance will definitely be charging the president.
Brooke: Are you talking about the New York Magazine piece that said, "Considering the number of crimes he has committed, the time span over which he has committed them, and the range of jurisdictions in which his crimes have taken place, his potential legal exposure is breathtaking."
Ankush: That was certainly one of them. I think there was a piece at Politico on December 3rd about Trump's pardon power that said, well, he's got all this criminal exposure in the states. Criminal exposure is kind of a term of art. It just means the risk of potential criminal charges. It is not really that informative, because a lot of people have criminal exposure a lot of times and never get charged. Vance's office in particular, I have to say, I find it really strange that this assumption has taken hold at all, because his office's history of pursuing complex white-collar cases is quite checkered, including in recent years.
Brooke: Here's Neal Katyal on MSNBC last month.
Audio clip Neal Katyal: Even if Trump had hoped to avoid criminal prosecution, his post-election behavior basically guarantees it. You've got a guy who's right now literally committing, if not crimes, pretty darn close, even though he's being forced out the door in terms of conspiring with these Michigan canvassers or these state legislators. It is a federal crime, it's a state crime to try and take someone's right to vote away.
Ankush: There's so much going on in that one clip that really exemplifies the problems and the commentary here. First of all, the notion that anything pretty much guarantees a federal prosecution is just nuts on its face. One of the things that has caused me to be a little cautious and a little frustrated with this overconfidence and certainty in this area, is because we kind of just went through this with the Mueller investigation.
Audio clip: Can you just feel the tension? The White House, Congress, all of us on pins and needles with the Mueller report expected to drop at any time now.
Audio clip: I think more indictments are coming and I think they'll be broad-based and there will be a general conspiracy indictment.
Brooke: Mueller, Mueller, Mueller, Muller. I remember that period very well as one of the great anticlimaxes of all time. You say that the media and the punditariat have learned the wrong lesson from that episode.
Ankush: Yes, because you would think maybe we covered this in a way that wasn't entirely accurate, maybe we need to be a little bit more cautious, but that does not seem to be what's happening among the commentariat. I have noticed that the editors and writers in this space, journalists, their coverage I think has noticeably improved. I think Jane Mayer's piece in The New Yorker before the election, I thought was excellent. I thought Jonathan Mahler's piece in The New York Times Magazine a couple weeks ago was really good.
They're able to write in a way that conveys nuance and uncertainty. Among the commentariat set, the lesson seems to have been predict, predict, predict, be confident, and you'll find that people really enjoy hearing that.
Brooke: Talk about the convergence of what good lawyers do best and what so much of the media is hungry for?
Ankush: For a prosecutor in particular, their whole job is looking at facts, usually more complicated than they seem, and fitting them into a narrative to try to make sense of them in a way that seems to lead to a particular result. That can be a very effective and helpful skill, but the media already is primed to hear from people who have strong opinions and present them with authority and confidence. I think a lot of people are filling the space with a lot of overconfident commentary.
Brooke: Do you have any advice for news consumers who really care about this subject? Any red flags that you think that they should take note of when they're taking in these stories and these commentaries?
Ankush: Anyone who is projecting into the future about what evidence will show, or what evidence may or may not exist that we don't yet know about now, I would be very, very wary about. People who predict with some certainty that something is going to happen on a particular timeline and investigation. Like Harry Litman's claim that Cy Vance is going to reach charging decisions within a few months. Here again, who knows? You mentioned the New York Magazine article from September, right? That piece says the case could go to trial sooner than you think. Well, who knows? Also, there could never be a trial.
Brooke: Could you confidently predict that there will be new facts?
Ankush: That's easy. There will definitely be new facts. There are people who are going to feel comfortable coming forward saying things. Well, you know what? Let me back off actually.
Ankush: I think it's very likely, let me put it that way, that we're going to learn new things. I shouldn't be doing this thing that I'm criticizing other people for and predicting anything with any kind of certainty, but I see a lot of pathways and a lot of incentives for people to come forward with information after the administration changes.
Brooke: Thank you so much.
Ankush: Thanks for having me.
Bob: Ankush Khardori is a writer, lawyer, and former federal prosecutor. He spoke with Brooke in December. That's it for this podcast extra. Look on your podcast app for another special production. OTM producer, Alana Casanova-Burgess' La Brega, a gripping and illuminating podcast series produced in collaboration with Futura Studios. It's about Puerto Rico and it is really, really something. On the big show this weekend, we will give you a particularly personal episode, do not miss it. I'm Bob Garfield.
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