Melissa Murray

- Former U.S. president on trial in criminal court for the first time.

This week on "Firing Line."

A defiant former President Trump.

- It's a scam.

It's a political witch hunt.

- [Margaret] As jury selection in his first criminal trial began this week.

All in all, Trump faces 88 felony charges in four cases involving alleged hush money payments.

- This is a trial that should have never been brought.

- [Margaret] Classified documents.

- I have every right to have those boxes.

- [Margaret] January 6th.

- [Group] Fight for Trump.

- [Margaret] And election interference in Georgia.

- [Trump] I just wanna find 11,780 votes.

- [Margaret] Constitutional scholar Melissa Murray is tracking each case and the complicated legal maneuverings from Trump's defense.

- There is broad incentive for the defendant to frame what is happening to him not as the ordinary workings of a legal system, but rather, the machinations of a political persecution that has been lobbied against him.

- [Margaret] As this unprecedented trial begins, what does legal scholar Melissa Murray say now?

- [Narrator] "Firing Line with Margaret Hoover" is made possible in part by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, Peter and Mary Kalikow, The Asness Family Foundation, The Beth and Ravenel Curry Foundation, The McKenna Family Foundation, Charles R. Schwab, The Eric and Wendy Schmidt Fund for Strategic Innovation, and by the following.

Corporate funding is provided by Stephens Inc. and by Pfizer Inc. - Professor Melissa Murray, welcome to "Firing Line."

- Thanks for having me.

- Former president Donald Trump faces 88 felony charges in four jurisdictions.

Jury selection began this week in Manhattan, making him the first former U.S. president to face a criminal trial.

The Manhattan District Attorney Alvin Bragg, his prosecution of Donald Trump centers on allegations that Trump paid hush money to silence claims of affairs before the 2016 election.

The prosecution charges that Trump falsified business records to cover up the payments and, in doing so, allegedly interfered in the election.

The case rests on what some call a novel legal theory.

- Yeah.

- Explain this novelty.

- So in the New York system, the falsification of business records is ordinarily a misdemeanor crime.

However, in circumstances where the falsification of business records is intended to further the commission of another crime, it can be elevated to a felony.

And so this is known as bootstrapping, and the theory of the case is that the falsification of business records was undertaken in furtherance of the commission of, essentially, election fraud at both the state and federal levels, and tax fraud.

- So there's a jurisdictional question here then too.

Because the District Attorney of Manhattan can prosecute crimes committed in his district.

But a federal crime, a federal election crime, is a whole other jurisdiction.

So you recognize that there are legal valid questions.

- For sure, for sure.

This, I think, happens in a lot of prosecutions, but to be clear, DA Bragg has also suggested that the extra crime that this might be bootstrapped to doesn't have to be the federal election of law.

- 'Cause we don't know yet what the underlying crime is.

- We don't actually know, yeah.

So there's been discussions of state-level crimes, state-level election crimes, federal election crimes, and also state-level tax crimes.

- Another piece that's rather novel is that the statute of limitations had expired on this kind of a business crime but for the pandemic potentially.

- Right, right.

So during the pandemic, Andrew Cuomo, who was then the governor of New York State, issued an executive order that essentially paused all of the statute of limitations on crimes, because no one was in a position to investigate any crimes, and essentially gave about a year of an additional timeframe in order to bring these cases.

- [Margaret] In which this just barely fit.

- Barely made it.

- Federal prosecutors and DA Bragg's predecessor, Cy Vance, refused to bring this case, or declined.

- Declined - To bring this case.

Does it give you pause that Bragg's predecessor declined to bring the case forward?

- I don't wanna comment on what those earlier administrations said.

All I will say about Alvin Bragg's decision is that the burden of proof in a criminal case rests with the government and the prosecutor, and the government has to establish its case beyond a reasonable doubt.

That's an incredibly high standard.

The government is fighting uphill.

And so I would like to think that DA Bragg, having a full understanding of the evidence that is in his court, would know whether or not he has the goods to make his burden, and would not undertake such a high-profile prosecution in the absence of a really strong showing that he could make that burden.

- I wanna ask you about the political implications of this.

- Yeah.

- Bragg campaigned on a platform to hold Trump accountable, often saying that he had sued Trump over a hundred times, which may not have been accurate.

But it does help fuel this narrative that the prosecution is politically motivated.

- Yeah.

- How does that impact the trial?

- I think this is going to shade jury selection.

It means that every decision that is made here has the capacity to be refracted through the lens of politics, even if it is actually just a legal decision.

And certainly there is broad incentive for the defendant to frame what is happening to him not as the ordinary workings of a legal system, but rather the machinations of a political persecution that has been lobbied against him.

- In Manhattan in 2020, Joe Biden won 86% of the vote, Donald Trump won 12% of the vote.

One could simply, with those odds, ask, how on earth could the defendant get a fair trial just given the odds of selecting a pool of jurors that would be inclined to think of him in a completely neutral way?

- So, I mean, I think that's a great question.

I think jury selection is going to be really fraught.

The idea that Donald Trump is entitled to a jury of his peers, that does not mean he is entitled to a jury of his peers all wearing red hats.

And so I think that's really important.

A jury of your peers does not have to be a jury of individuals who are sympathetic to you, who share your political views.

It just has to be 12 people who are committed to approaching the evidence with an open mind.

So yes, you may have a jury that is overwhelmingly committed to the Democratic party, but I don't think that necessarily means that you don't have 12 people who will not be able to approach the evidence presented with an open mind.

- How important is jury selection?

- I think jury selection is where cases are won and lost.

- In this case, will it depend on the jury?

- I think that it's going to be enormous here.

- Judge Merchan has ruled that the jurors' identities will remain a secret because of a, quote, "Likelihood of bribery, jury tampering, "or of physical injury or harassment of jurors."

- I think there's a real risk of intimidation of jurors if this information came out.

Not by Donald Trump himself, but by those who remain quite committed to him.

- In this case, if there is one juror who is persuaded that Donald Trump is innocent, that's all it will take to-- - That's all it takes.

That's not enough for an acquittal.

It is enough for a mistrial.

And that may be all Donald Trump wants.

I mean, again, the way this shakes out in a criminal trial is the burden is on the government.

The idea is, in a situation where an individual faces the loss of liberty, the burden should be on the state to establish that this person is guilty beyond a reasonable doubt.

And for the defendant to prevail, all you need is a single person who's like, "I don't think the government made that burden."

- DA Bragg is an elected Democrat who won a Democratic primary in one of the most democratic cities in the country.

You know, there's this real question about the precedent of prosecuting political opponents.

- Yeah.

- How do you think about that?

- So we don't have a lot of great choices here.

Yes, we could try and insulate the legal system and insulate the prospect of future leaders not being harassed by state-level or local prosecutors going forward by just giving us a wide berth.

But then we also have this question, is the president above the law?

And I think you can't reconcile those two things without making some difficult choices.

Like, do we live in a democracy?

Do we live in a country that abides by the rule of law?

If the answer is yes, then you have to take some chances that you may set up a precedent where this may be used vindictively, that may be used instrumentally going forward by other prosecutors who, you know, someone in Texas wants to sue Joe Biden for violating Texas law.

But that's kind of the risk you take if you care about the rule of law.

I would like to think that this moment is extraordinary, but I think there seems to be, given the allegations of criminality, a need to hold this particular former leader to account.

- David Boies, a Democrat who famously argued Al Gore's case before the Supreme Court in the 2000 election, has said that, quote, "The prospect of criminally indicting a former president "is better left to other countries.

"You have to ask yourself: "would these cases have been brought against him "if his name were Donald Smith?"

You say in your book that you wrote with former federal prosecutor Andrew Weissmann, "The Trump Indictments," that reasonable minds may differ over whether the Manhattan charges would've been brought against someone other than Trump.

Where do you come down on this question?

- So this is a place I think where Andrew and I did a lot of talking.

I think we agree that, in the other three indictments, to not bring criminal charges would have, that would have been the selective action.

Because there are plenty of people in federal penitentiaries right now for keeping classified information in far less quantities than what Donald Trump has been charged with in the Mar-a-Lago case.

And we have many January 6th protestors who are currently serving federal sentences for the actions undertaken on January 6th, 2021.

So I think that's very clear.

Like, to not go forward with criminal prosecutions of Donald Trump in those other three cases would be a violation, a dereliction of duty.

The New York case, I think this is where Andrew and I disagree.

New York often prosecutes people for falsification of business records, but it's usually as a misdemeanor crime.

So it's the bootstrapping, I think, that makes this more novel, perhaps a little unorthodox and raises eyebrows.

And again, that's the burden that DA Bragg is going to have to clear.

And again, Donald Trump, during the course of this trial, can note the novelty of this bootstrapping theory, can note all of the legal problems.

So he will have an opportunity to challenge this.

But I think, just as a general matter, as DA Bragg has said, these are crimes for which ordinary New Yorkers are prosecuted.

- Trump's legal team reportedly is hoping to seat young Black men on the jury who might be amenable to his argument that the justice system is stacked against him.

- Yes.

- On the original "Firing Line" in 1996, one of O.J.

Simpson's attorneys, Alan Dershowitz, explains how they had a similar rationale while picking the jury for O.J.

Simpson murder trial.

Take a look.

- We understood we had Blacks in the jury and that, therefore, they might be more amenable to what we believed was the true defense in this case, namely that the police had perjured themselves.

But for many in the city Blacks, they have seen it, they've heard about it from their friends, they've experienced it, and they are more likely to accept a defense based on evidence tampering and perjury by the police.

Gender, race, ethnicity matter when you're picking a jury and how you're trying a case to the jury, - A predominantly Black and female jury ultimately did acquit Simpson.

How do you see race and gender factoring into the make of this Trump jury?

- So Donald Trump has said that Black men, young Black men, should feel kind of affinity with him because he, like them, is the unusual target of the criminal justice system.

That may be a winning argument to some degree.

I mean, I don't know that that necessarily holds for Black women or for women more generally.

I think it'll be really interesting how the allegations of extramarital affairs, like, how that plays with a jury.

But in terms of, you know, race mattering, gender mattering, I think it does matter to some degree, but it also plays in both directions here.

I think there are going to be lots of people on that jury who also remember when Donald Trump took out a full-page ad in the paper against the Central Park Five, who are now known as the Exonerated Five.

I mean, there's a very real story to tell about Donald Trump being part of the railroading of young Black men, the same kind of railroading that he now attributes to his own circumstance.

- Well, you recently argued that if any Black man had been charged with 91 different crimes, he would already have pled guilty at this point.

- Yes, there's also that.

- There are three other cases involving Donald Trump, the federal case by Jack Smith on January 6th, the documents case, of the classified documents that were taken from the White House, and the Georgia election interference case.

What are the chances, in your view, that any of these will come to trial before the election?

- Dwindling by the day.

You know, you could imagine, we have a big timer here and-- - A timer for the election, you mean?

- Yeah, and it's counting down.

It would have been great, and I think it would have been possible for some of these other trials to have started and to have concluded, certainly by September.

And I think that would've been really useful information for the American electorate to have.

Like, these are situations of disputed facts.

The jury system is the system in the Anglo-American legal tradition for resolving disputed facts.

We're not going to have that opportunity, I think, which is really unfortunate.

It means that each American is going to have to resolve those facts for herself, and likely will do that in the confines of the ballot booth, not necessarily by watching a jury deliberate and sift through the evidence and determine whether the government has proven its case beyond a reasonable doubt.

- So let's talk about why they, I mean, the reason each of them haven't come to pass.

Let's go one by one.

You've called the documents case, the Mar-a-Lago documents case, a open-and-shut case.

- Yes, Andrew and I both agree, and we discuss this in the book.

This is a clear-cut case where the crime is literally having the documents, knowing that you're not supposed to have the documents, knowing that the documents are classified and they're not yours, and keeping them.

And I think Jack Smith's indictment makes allegations that suggest there's very strong evidence that that is, in fact, what happened.

- Why should it have come to trial before the election and didn't?

- I mean, to my mind, that case is so profound in terms of what it says about the alleged conduct and the implications of that conduct.

I mean, these aren't ordinary documents.

This is the most sensitive information.

This goes to questions of nuclear and military capabilities.

It concerns our assets in the field.

It concerns the assets of other countries.

It's our national intelligence.

It's about keeping us safe.

It can't be in a gold-plated bathroom in your beach house in Palm Beach.

- Is it your view that the reason it won't come to trial is because of delays from the defendant and decisions from the judge?

- Yes, I think, you know, I think the defendant, as part of his defense, is entitled to mount a vigorous defense, and that includes making attempts to slow this down.

But this comes down to a question of case management and courtroom management.

And for that, I think we have to look to Judge Cannon, who, you know, I think, generously, you might say she might be a little out of her depth here.

She's a relatively new judge.

She was appointed by Donald Trump.

She does not have a lot of experience doing criminal trials as a lawyer.

And this case involves questions of evidence that are classified documents, classified information.

So you have to deal with the Classified Information Procedures Act.

I don't think she has a lot of experience doing that.

We have already seen in the discussion of the special master, even before this trial was assigned to her, she made a decision that was appealed to the Eleventh Circuit, the intermediate appellate court that she answers to, and they rebuked her for getting the law wrong.

So I think there have been a lot of questions that might be raised, both about the judgements that she has issued, the things that she has focused on, and the way she's managed this case that, really, I think does raise eyebrows.

- Special counsel Jack Smith's January 6th indictment claims that Trump conspired to steal the election after the election had occurred.

This trial was supposed to begin in March.

It is on hold while the Supreme Court considers oral arguments about the immunity of the President.

What will you be listening for next week?

- So I think, again, the only answer the Supreme Court is going to issue is that it cannot be the case that a president is completely and totally immune from criminal prosecution.

That would make the president above the law.

It would make the president a king.

I can't imagine the court is going to come to that conclusion.

I think the justices recognize what they have to do here in terms of the law and the jurisprudence.

What I'm actually going to be looking for is whether, on April 26th, we get a ruling in this case.

Because if we don't, I think then the only conclusion that one could draw is that the Supreme Court, regardless of what it has decided, has effectively immunized Donald Trump from being held to account on the January 6th trial issue, because this trial is never going to go.

- You're saying that if they wait any longer, then they will have effectively delayed, prevented the American people from being able to see the results of this case playing out before the election.

- If they don't decide this in short order after oral argument on April 25th, the whole question of presidential immunity is just an academic exercise that will be, for law professors and those who write constitutional law case books, it's not going to be about this trial.

- These federal cases, if Trump is reelected, what happens to them?

- So if Trump is reelected, he will have a new Department of Justice with a new AG, who can kill these federal cases.

The state-level cases, both the Manhattan case and the Georgia case, do not offer the opportunity for the sitting president to work either through the DOJ or through his constitutional powers as chief executive to kill those cases.

So if he is convicted in Manhattan, can't really do anything about it.

We then have a question of whether a sitting president can serve out his sentence while also serving as president.

You know, truly an unorthodox question.

But he's not going to be able to kill those cases and he's not going to be able to pardon a conviction of any of the individuals who are charged and convicted in those cases.

- Let me just ask you a couple of questions about Georgia.

It has become impossible to talk about the Georgia case now without focusing on the prosecutor Fani Willis and her romantic relationship with her subordinate, Nathan Wade.

Of course, Trump moved to remove Willis from the case.

The judge said, "Of course not," but was critical of Willis' judgment and conduct.

The judge also forced Wade to resign.

What impact did those events have on the outcome of the case?

- It's a fair question to raise.

It does not diminish the force of the charges against any of the defendants here.

And, you know, typically, when you have ethical questions involving prosecutors and their private relationships, it's usually that the relationship is with the judge or a juror or with the defense, not that it's with someone on the same side.

So I think the same sort of ethical quandary isn't quite present, but the optics of it are obviously core.

- More damaging than anything.

- Yeah, and embarrassing for her.

I think demoralizing for her team.

And obviously, it led to the removal of Nathan Wade and, you know, what I think was a pretty stunning rebuke from Judge Scott McAfee.

- Would it be better for the case?

- No.

- If if she were removed?

- No, and here's why.

- Why, yeah.

- She has incredible expertise with Georgia RICO, and she's brought many of these RICO cases.

- RICO is the-- - The Racketeer Influenced and Corrupt Organizations Act And she is incredibly experienced in bringing those RICO prosecutions in Georgia.

- A couple final big picture questions about all of these legal cases.

A common complaint from Trump is that he's a victim of double standards in the legal system, that he's being treated unfairly by all the courts.

And I wonder, as you watch him maneuver to stall trials in four different jurisdictions, as he hurls insults at judges, prosecutors, witnesses, is it the reality that he is being treated more harshly than an average defendant?

- I think that he is being treated differently, but it's working to his advantage.

Like, this isn't the ordinary situation where you have a defendant who has 91 criminal charges against him.

That defendant, the ordinary defendant, would already have pled guilty and would be in a jail cell somewhere.

The fact that Donald Trump has the resources to wage a vigorous defense and is waging a vigorous defense and has slowed down these cases, that doesn't happen in most criminal cases.

In terms of how he's being treated by these judges in these courtrooms, a defendant who posted on social media to millions of followers the name of the judge's daughter, and said that, you know, she is responsible for influencing this trial, that defendant would already have been held in contempt of court, like, criminal contempt.

So yes, Donald Trump is being treated differently.

He's being treated in a way that no criminal defendant will be treated.

He is getting the due-est of due process.

- It appears likely that Donald Trump will go before voters in November with three of four cases unresolved.

- Yeah.

- He is threatening to push the limits of executive power in a second term.

What does that tell you about the ability of our institutions to hold him accountable?

- Well, I mean, we've already seen that the ordinary restraints that have constrained prior chief executives don't work here.

I mean, I teach a case in constitutional law called Nixon versus Fitzgerald.

In that case, Justice Lewis Powell says that the president cannot be held civilly liable for the actions undertaken in the course of his office.

But that doesn't mean the president won't be held accountable.

He talks about the prospect of impeachment being a check on the president, the media and media coverage of the president being a check, the prospect of the president caring about his legacy being a check.

All of these things, he argues, will instill in a president the desire to behave, to conduct himself in the manner that the office demands and deserves.

And when I read that part of the opinion to my students now, this is after two Trump impeachments both failed, they laugh.

Like, they literally laugh at the prospect of impeachment being an adequate check on the president, about the president caring about his legacy.

- Well, those are political checks and balances.

How about the legal checks and balances really from the court?

Because he has been held accountable by civil courts.

- Yes.

- Are the courts the only place that can hold the executive accountable?

- I think the framers of the Constitution would have seen the courts as the very last resort.

Like, that's the last straw.

But that's where we're left with.

And I think the real question that we're seeing, that perhaps we'll get an answer to is, can the courts, can the rule of law, constrain this former president, who may be a future president, and all of the things that he would like to do in this office?

- Professor Murray, thank you for joining me here on "Firing Line."

- Thanks so much for having me, Margaret.

- [Narrator] "Firing Line with Margaret Hoover" is made possible in part by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, Peter and Mary Kalikow, The Asness Family Foundation, The Beth and Ravenel Curry Foundation, The McKenna Family Foundation, Charles R. Schwab, The Eric and Wendy Schmidt Fund for Strategic Innovation, and by the following.

Corporate funding is provided by Stephens Inc. and by Pfizer Inc. [upbeat bright music] [upbeat tune] [gentle music] - [Announcer] You're watching PBS.