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Elie Mystal: Trump “Did the Deed,” But Long Overdue Indictment Is Built on Shaky Foundation

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As former President Donald Trump is expected to be arrested in New York on charges related to paying hush money to adult film star Stormy Daniels during the 2016 presidential campaign, we speak with The Nation's justice correspondent Elie Mystal, who says the case against Trump is far from a slam dunk. Trump is reportedly facing about 30 criminal counts related to business fraud, but Manhattan District Attorney Alvin Bragg has yet to release the exact charges, which reportedly include at least one felony. Mystal says it's clear that Trump “did the deed,” but the timing of the charges could undermine the case, due to the statute of limitations that may have elapsed and because of the looming 2024 election campaign. “Why wasn’t he held accountable for that earlier, when it might have been easier to do so?” asks Mystal.

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman.

On Tuesday, former President Donald Trump is expected to be arraigned in New York on undisclosed charges related to paying hush money to adult film star Stormy Daniels during the 2016 presidential campaign just before Election Day. Trump will become the first former U.S. president to ever be charged with a crime. He’s reportedly facing about 30 criminal counts related to business fraud, but Manhattan District Attorney Alvin Bragg has yet to release the exact charges. The charges reportedly include at least one felony. Many expect many more.

Trump’s indictment comes as he is campaigning again for the 2024 presidential race. He has reportedly raised over $4 million in campaign donations since the indictment was announced. It was reported that he raised $4 million in the first 24 hours, and then another at least a million since.

On Friday, Trump decried the indictment as a, quote, “witch hunt” and attacked Judge Juan Merchan, claiming that he, quote, “hates me.” Merchan had previously presided over the trials of the Trump Organization and CFO Allen Weisselberg, who remains in prison today.

Police in New York have already barricaded the court building and Trump Tower ahead of the possible protests. Republican Congressmember Marjorie Taylor Greene has said she’s heading to New York to take part in protests against Trump’s arrest.

He will fly into New York today. After he’s arrested, he is expected to fly back to Mar-a-Lago, and on Tuesday night, just after 8 p.m., is expected to hold a primetime news conference from his estate at Mar-a-Lago, or at least give a speech. Invitations have already gone out to his supporters.

We are joined now by Elie Mystal, The Nation's justice correspondent, author of Allow Me to Retort: A Black Guy's Guide to the Constitution. Elie’s recent articles include “Donald Trump Has Been Indicted. Don’t Get Your Hopes Up.”

Elie, why not?

ELIE MYSTAL: [inaudible] we are, this indictment, which we still don’t know all the details about — right? — to a conviction, to prison or real accountability, is a very long process and one that we don’t know how it’s going to turn out. As you pointed out, Amy, Donald Trump is likely to be indicted for charges relating to his hush-money payments to actress Stormy Daniels in 2016, right? But 2016, that’s an important date, right? Because the statute of limitations for campaign finance fraud, which is potentially one of the charges that is going to be in that indictment, is generally five years. That brings you to 2021. We are in 2023.

So there are some timeline issues with these charges that we have to be concerned about, that will — and here’s the important thing, Amy. There is nothing I know about the statute of limitations or the legal technicalities that DA Alvin Bragg doesn’t know, right? And there’s a lot of things that Alvin Bragg knows that I don’t know. But everything that I’m saying is what Trump’s lawyers are going to say. There are going to be grounds for his appeals both before trial and certainly if we ever get to the point where there is a trial and a conviction. So, these will be opportunities for Trump to further delay the process, delay accountability, and ultimately delay justice.

AMY GOODMAN: Were you surprised by this indictment, both the timing but also what you understand? Now, again, as you pointed out, it has not been unsealed. It could be unsealed at any point through to tomorrow, when he’s arraigned, when it’s expected to be unsealed.

ELIE MYSTAL: Well, was I surprised? I mean, I’m surprised this didn’t happen in 2021. That Donald Trump allegedly committed these crimes is basically a matter of public record, right? We know that he paid the hush money to Daniels. We know that he lied about it in public. It’s easy to infer that he lied about it on his business records, based on the testimony of his former lawyer Michael Cohen. So, all of these charges, all of these allegations have been a matter of public record for some time now.

And I have yet to hear a credible explanation for why the Southern District of New York did not bring — that’s the federal law enforcement body in Manhattan — for why SDNY did not bring these charges in 2021, when Bill Barr, we assume, you know, did not allow charges to happen under his watch, but once Merrick Garland took over, why weren’t these charges brought in 2021? And we don’t have a good explanation for why former Manhattan DA Cyrus Vance didn’t bring these charges in 2021, when the statute of limitations certainly hadn’t run out yet.

So, the surprise is the timing of the charges, literally, not the charges themselves. These are things that many of us have already kind of baked in that Donald Trump did the deed. The question is: Why wasn’t he held accountable for that earlier, when it might have been easier to do so?

AMY GOODMAN: This is one of Donald Trump’s lawyers, Joe Tacopina, speaking on ABC’s This Week with George Stephanopoulos.

JOE TACOPINA: He’s gearing up for a battle. You know, this is something that, obviously, we believe is a political persecution, and I think people on both sides of the aisle believe that, that it’s a complete abuse of power. He’s a tough guy, George, as you know, and he’s someone who’s going to be ready for this fight. We’re ready for this fight. And I look forward to moving this thing along as quickly as possible to exonerate him.

AMY GOODMAN: Your response, Elie Mystal?

ELIE MYSTAL: First of all, Donald Trump is not a tough guy. He is a whiny little punk. And we know that, because if he was a tough guy, he would not be crying about political persecution and “everybody’s out to get me, and oh no!” No, he would be like, “I didn’t do it. Let’s go.” That’s what a tough guy would do in this situation. He’s got credible legal arguments. He would make those legal arguments and have his day in court. Instead, he’s like, “The judge is mad at me, and I can’t get a fair” — that’s not tough. All right? So, that’s number one.

Number two, the thing that these people on the right keep pushing, this idea of, like, “If they can go after Donald Trump, they can go after you, too,” yes. Yes, if you pay hush money to an actress to cover up an affair and then lie about it on your taxes, they can in fact go after you, too. And, in fact, they would have gone after you, if you were a regular person. In fact, the only reason why they haven’t gone after Trump to this point is political. All right? The idea that he’s being prosecuted now, that he’s being indicted now, because he’s the president? No, no, no. He hasn’t been indicted already, because of his political stature and his political power. And now that — at least in New York, that’s coming back around on him. And hopefully — hopefully, this is only the first of many indictments that Trump will be seeing over the course of 2023.

AMY GOODMAN: Let’s talk about his attacks. I want to get to the judge, but, first, Alvin Bragg, that picture that Donald Trump tweeted of himself holding a baseball bat and a picture of Alvin Bragg, the first African American district attorney.

ELIE MYSTAL: Look, Donald Trump always has smoke for people of color and for women who try to hold him accountable. We know the play. Everybody knows the play, OK? Everybody knows that he is going to try to dirty the waters, to try to chum the waters with this racially aggressive stuff, right? We know that that works. The exact same people, the exact same marks and dupes that gave this rich man $4 million of their money over the last week, are the same people that go in for this kind of racialized tension that Donald Trump played. So we know the play.

I don’t think that that play, that old play, that play that goes back to 1850 — I don’t think that’s going to work particularly well in this case. I don’t think it’s going to matter very much in this case. Alvin Bragg is going to keep doing what he’s doing. We’ve already seen how he’s responded to the ridiculous requests for testimony from Jim Jordan and the MAGA Congress. We’ve already seen how Bragg’s responded to that. I think he will keep on his path. I think Judge Merchan —

AMY GOODMAN: Wait, Elie, talk about that, for people who aren’t following this closely, and the significance of the legislative branch of Congress, of the Congressmember Jim Jordan calling for Alvin Bragg to testify before his committee.

ELIE MYSTAL: Yeah, so, I mean, let’s go back to the Constitution, which explains that we have a separation of powers in this country. Congress is the legislative branch at the federal level. Alvin Bragg is a local law enforcement figure. There is no covalence there. There’s no legislative purpose for Congress to bring Bragg in, to haul him up to Congress to testify about, remember, indictments that are unsealed — that are sealed at this point. Jim Jordan doesn’t even know what he’s talking about. And Bragg made that point to him. There’s absolutely no reason for Bragg to show up and testify. He won’t show up and testify.

But, again, it’s Trump supporters and Trump sycophants trying to muddy the waters with the appearance of impropriety. And again, Trump has legitimate legal defenses here. If he was tough, if any of his MAGA bros were tough, instead of doing all of this stuff, they would simply fight the charges as they are — right? — because they have an actual defense. But they don’t want to make the actual defense. They want to do this chumming that we’ve seen. And, you know, Jim Jordan is one of the masters of that, of a person who abuses his power in Congress to try to advance MAGA causes. Alvin Bragg’s not having any of that. I don’t expect he will. That’s what I’m saying.

Trump will throw a lot of stuff against the wall. I don’t think a lot of it will stick. Where he is going to be benefited is from the fact that this will take a lot of time to go from indictments — let’s say they’re unsealed tomorrow — to an actual trial and an actual conviction. Trump can most likely do what he usually does, which is delay accountability until justice is denied.

AMY GOODMAN: Donald Trump wrote on Truth Social, his social media platform, Friday, “The Judge 'assigned' to my Witch Hunt Case, a 'Case' that has NEVER BEEN CHARGED BEFORE, HATES ME. . His name is Juan Manuel Marchan, was hand picked by Bragg & the Prosecutors & is the same person who 'railroaded' my 75 year old former CFO Allen Weisselberg, to take a 'plea' deal (Plead GUILTY, even if you are not, 90 DAYS, fight us in Court, 10 years (life!) in jail. He strong armed Allen, which a judge is not allowed to do, & treated my companies, which didn’t 'plead,' VICIOUSLY,’” he said. He spelled the Judge Merchan’s name wrong, Judge Merchan, a Colombian American. Talk about the significance of this.

ELIE MYSTAL: I can’t, because none of what he said is true. Like none of it is true at all. There’s no — there was — that statement that you just read, Amy, is fact-free. There was nothing there. Judge Merchan, to start with, was not handpicked by Alvin Bragg. It is a random system of assigning judges in New York. He did —

AMY GOODMAN: Well, in this case, though, Elie — in this case, the reason that Merchan got it, apparently, is because he did preside over the case of Weisselberg and the Trump Organization, and Bragg made the argument that this is related. And so it didn’t go through the random system, but it went because he randomly was chosen for that case.

ELIE MYSTAL: Yeah, but Bragg didn’t pick him. Bragg made an argument. And I’m saying that the random thing happened at the start of Trump world indictments, right? So, like, Merchan was randomly chosen for the initial Trump case, and, therefore, it makes sense that he’s going to get all the rest. Bragg made that argument, but he didn’t pick him. Right? There’s no ability for a prosecutor to pick the judge that they have. I mean, maybe Trump, because of how he went through impeachment, thinks that it’s usual for people to be able to pick their own judges, but that’s not actually how it works, right? So, Bragg didn’t pick him. Merchan did not railroad Weisselberg into taking that plea. Weisselberg took that plea because Weisselberg wasn’t willing to flip on Trump. And so, Weisselberg took the weight for the Trump Organization. That’s how that went down.

Like, this is a normal process — OK, I can’t say “normal,” because it’s not normal to charge former presidents. But to the extent that Trump is being treated like a normal defendant, this is what normal defendants face all the time. And quite frankly, I bet a lot of other defendants would love to be arraigned and then fly back to their golf club and give a press conference about why the charges are bogus. That doesn’t happen for a normal defendant. So, Trump is already taking advantage of the system in all the ways a rich, powerful, wealthy white man can. The idea that the assignment process is against him is just bunk. It’s just not true.

AMY GOODMAN: I mean, it’s very interesting, the attack on Juan Merchan, because it reminds you of the attack on another judge, on Judge Curiel. This was when President Trump was running for president the first time, and Trump University was being charged with fraud. And Judge Curiel, Judge Gonzalo Curiel, was the judge overseeing that case against Trump University in San Diego. Trump began calling him a “hater,” who was being unfair to him because the judge is, quote, “Hispanic,” because he’s “Mexican,” and because Trump was building a wall. He put that all together.

ELIE MYSTAL: Again, that works for his base, right? That kind of attack works for the people who are already on his side, which is why I disagree with a lot of the coverage that’s coming from mainly mainstream media, mainly corporate media, mainly both-sides media, that, “Oh, charging the president will rip the country apart.” No, it won’t. It won’t rip the country apart. Trump has his base of crazy people, and they will continue to support him, and they will continue to believe the things that come out of Trump’s mouth. The rest of us won’t. That is already baked into the system. So the idea that actually holding Trump accountable somehow further divides the country, are you kidding me? We cannot be more divided than we already are, where we have 30, 35, perhaps 40% of people actually believing this man, and the rest of us believing in, like, facts and truth and physics.

AMY GOODMAN: And, Elie Mystal, the call of a number of news organizations, from The Intercept to CNN, for Judge Merchan to allow cameras in this trial, that it is of serious public interest, and the public is extremely interested, your thoughts?

ELIE MYSTAL: I always believe that we should have cameras in the courtroom. Courts should be — you know, justice is best done transparently. Courts are houses of the public. I always think there should be cameras in the courtroom. I understand why some judges don’t want them to be. I think they always fear the way that a media circus can be created from these trials. And again, you know, legal arguments are not — it’s not like Law & Order, right? Like, they are dry and technical, and sometimes people who aren’t knowledgeable about them kind of can get the wrong impression and take the wrong things, take the wrong lessons from them. That’s why judges resist having cameras in the courtroom. But that’s an argument. It’s not a dispositive one. It’s not a great one, basically. And I think, in this case, as in every case, there should be cameras allowed in the courtroom. But it ain’t my courtroom, so we’ll have to see.

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