BROOKE GLADSTONE This week, the media engage in wishful thinking that the vaccine will be an instant fix or that the president will be charged with a crime.

 

ANKUSH KHARDORI Yeah, I mean, one of the assumptions is that there is a criminal case. It's just, you know, which one and where do you find it?

 

BROOKE GLADSTONE From WNYC in New York, this is On the Media, I'm Brooke Gladstone. Frontline health workers are forced to make ethical decisions leaders further up the chain are too chicken to take on.

 

JORDAN KISNER They're terrible decisions to make. And so they get shunted downward and downward until they're in the lap of the person who's standing in front of the patient and cannot not make a decision.

 

BROOKE GLADSTONE Also COVID's that's changed the way we say goodbye to our dead, leading us to face our grief in new ways, which are old ways.

 

AMY CUNNINGHAM He said, well, ordinarily we would have a wake. And I said, Listen to me, she's in the bed. She's dead. This is your wake.

 

BROOKE GLADSTONE  All coming up, after this.

 

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BROOKE GLADSTONE From WNYC in New York, this is On the Media, Bob Garfield is out this week. I'm Brooke Gladstone. And this week saw Americans of all political humors bewitched by wishful thinking. Some seeing Donald Trump after many stumbles finally on the path to victory.

 

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NEWS REPORT 17 states have joined Texas in support of its Supreme Court lawsuit, which seeks to stop Georgia, Michigan, Wisconsin and Pennsylvania from finalizing their election results. President Trump on Twitter called this case, quote, the big one. [END CLIP]

 

BROOKE GLADSTONE And others for seeing the delectable prospect of a rule breaking, tax dodging, constitution shredding precedent on trial.

 

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NEWS REPORT There are credible allegations that Donald Trump has engaged in a tax fraud, bankruptcy fraud, probate fraud. [END CLIP]

 

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NEWS REPORT Instances of possible obstruction of justice that Robert Mueller outlined in his report on Russian interference in the election. [END CLIP]

 

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NEWS REPORT Meanwhile, the president and his family actually have a whole lot more to deal with. New York's attorney general is investigating whether or not the Trump organization misled investors by inflating assets. [END CLIP]

 

BROOKE GLADSTONE As court filings and news reports hinted investigations well underway, certainty mounts within the caucus sphere.

 

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NEWS REPORT We should probably expect that there will be charges filed against him, that he will be indicted 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. [END CLIP]

 

BROOKE GLADSTONE Last month 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. But Khardori also conceded that, in fact, such speculation is, quote, insane. Among his critiques of the media commentariot it that there are too many former prosecutors, himself included, represented, and that there are too few defense attorneys who know better than anyone how to scramble a prosecution. And that 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 just fundamentally true, there are lots of things we don't know and facts could change. And, you know, it's very rare that I see anyone saying that.

 

BROOKE GLADSTONE Which brings us back to August.

 

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NEWS REPORT Cyrus Vance sent a subpoena last year to Deutche Bank as part of its investigation into President Trump's business dealings. The Times says the bank complied with that subpoena. [END CLIP]

 

ANKUSH KHARDORI When that news broke, a lot of people were strongly suggesting there might be a bank fraud case.

 

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NEWS REPORT What the Manhattan D.A. 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. [END CLIP]

 

ANKUSH KHARDORI Well, just compare the two and then, you know, he's in huge trouble. If they're not the same. A bunch of people are saying this is 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 fundamentally very misleading.

 

BROOKE GLADSTONE You basically said the speculation was insane. That you'd done this at DOJ and it's simply not how fraud investigations are conducted.

 

ANKUSH KHARDORI Yeah, no, that is the word I used in The Wall Street Journal in saying in particular about the suggestion that had been made by former acting solicitor general under Obama, Neal Katyal.

 

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NEAL KATYAL 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. [END CLIP]

 

ANKUSH KHARDORI And that was really surprising to me, coming from someone who is at least supposed to know better.

 

BROOKE GLADSTONE According to convicted Trump's lawyer, Michael Cohen, Trump inflated his assets when it was opportune to do so, deflated them one that was profitable. And if Cohen is right, doesn't that mean that a prosecutor could just compare one accounting book with another, find the mismatched numbers and, you know, it's over?

 

ANKUSH KHARDORI No, I mean, 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 differed? Who prepared them if their lawyers, accountants and auditors involved, what did they have to say about the relevant figures? Trump did not have a huge business. Right. This is something that I think David Fahrenhold at the Post has been very good at illustrating for the public in a fairly small organization. But that organization still had lawyers, had an accountant. That is going to substantially complicate any investigation.

 

BROOKE GLADSTONE 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 KHARDORI That's correct. We don't even really know what Trump's involvement was in the preparation of any of these figures. And 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, right, that Trump instructed people to falsify these figures.

 

BROOKE GLADSTONE But it's not a great witness.

 

ANKUSH KHARDORI 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. You know, if you were just playing the odds, the odds usually disfavor an indictment, right? 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 GLADSTONE 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 KHARDORI Yeah, I mean, one of the assumptions is that there is a criminal case. It's just, you know, which one and where do you find it? Another assumption is that Cy Vance will definitely be charging the president.

 

BROOKE GLADSTONE 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 KHARDORI That was certainly one of them. I think the L.A. Times columnist that you mentioned, that assumption is also built into his piece. 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. And, you know, criminal exposure is kind of a term of art. Just means like 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. And, you know, Vance's office in particular, I have to say, I find it really strange that this assumption has sort of taken hold at all because his office's history of pursuing complex white collar cases is quite checkered, including in recent years.

 

BROOKE GLADSTONE But here's Neal Katyal on MSNBC last month.

 

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NEAL KATYAL Even if Trump had hoped to avoid criminal prosecution, his post-election behavior basically guarantees it. I mean, you've got a guy who's right now literally committing, if not crimes, pretty darn close, even when 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. [END CLIP]

 

ANKUSH KHARDORI I mean, there's so much going on in that one clip that really exemplifies the problems in the commentary here. I mean, 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.

 

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NEWS REPORT 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. [END CLIP]

 

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NEWS REPORT I think, and more indictments are coming. And I think there'll be broad based and there'll be a general conspiracy indictment. [END CLIP]

 

BROOKE GLADSTONE Mueller, Mueller, Mueller, Mueller. I remember that period very well as one of the great anticlimax of all time. And you say that the media and the punditariot that have learned the wrong lesson from that episode.

 

ANKUSH KHARDORI Yeah, I mean, because you would think, you know, gosh, 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 commentariot. I have noticed, I think 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 Miller's piece in The New York Times magazine a couple of weeks ago was really good. They're able to write in a way that conveys nuance and uncertainty. Among the commentariot. It's that the lesson seems to have been, you know, predict, predict, predict, be confident, and you'll find that people really enjoy hearing that.

 

BROOKE GLADSTONE So talk about the convergence of what good lawyers do best and what so much of the media is hungry for.

 

ANKUSH KHARDORI 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 GLADSTONE So 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 KHARDORI Anyone who is projecting into the future about kind of 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, an investigation like, you know, Harry Lippmann's claim that Cy Vance is going to reach charging decisions within a few months. Here again, who knows? I mean, you mentioned the New York magazine article from September, right? That piece says, you know, the case could go to trial sooner than you think. Well, who knows? I mean, also, there could never be a trial.

 

BROOKE GLADSTONE Could you confidently predict that there will be new facts?

 

ANKUSH KHARDORI That's easy. I mean, 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 on that. Actually, I think it's very likely. Let me put it that way, that we're going to learn new things. Right. 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 GLADSTONE Thank you so much.

 

ANKUSH KHARDORI Thanks for having me.

 

BROOKE GLADSTONE Ankush Kaddouri is a writer, lawyer and former federal prosecutor. Coming up, how wishful thinking also muddies the real picture on salvation via vaccine. This is On the Media.

 

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