What to Expect When You’re Expecting a Trump Trial with Elie Honig
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Here's the deal. Our listeners get 20% off their first purchase at Viori.com slash Simmons. Once again, V-U-O-R-I.com slash Simmons. Hi, I'm Tara Palmieri. I'm Puck's senior political correspondent, and this is Somebody's Gotta Win. There is so much noise around Donald Trump, especially around the legal cases.

and all of the battles. It's hard to make sense of which cases will actually be tried before the election and which cases are strong enough to lead to a criminal conviction. He's got four indictments, 91 charges. And I guess everyone's sort of thinking, will Trump be wearing an orange jumpsuit before the election? Will he be in an ankle bracelet? Will he not be able to attend the Republican National Convention because he's under house arrest? Or will he just not be on the ballot?

These are important political questions because polling shows that voters are less likely to vote for a convicted felon. In fact, an NBC poll from this weekend shows Trump leading Biden by five points nationally. But if he's convicted of a felony, he trails Biden by two points. Today, Trump's legal team faced a pretty substantial blow. A federal appeals court ruled unanimously that Trump is not immune from crimes committed while in office, meaning that he

He does not have executive immunity for trying to subvert the results of the 2020 election. Of course, Trump's legal team will appeal to the Supreme Court. Now we'll see if the Supreme Court actually takes it up. That could determine the timing of when this case is actually tried. So to break this all down, I brought in CNN senior legal analyst Eli Honig. He's a former federal prosecutor. He knows this stuff inside and out and can make really strong predictions for us. Eli, can you explain to me...

what this means in terms of the timeline and what this means for the future of Trump's cases. Yeah, so this is a huge ruling, both in terms of what it does itself, but also how it impacts that all-important timeline. And I know this is a show focused on politics, so obviously when the trial happens or how many trials is very important to the election. So that's sort of part two. Part one, this ruling. So Donald Trump has raised this defense of himself in this case, and we're talking here about, because you always have to specify, right, because there's a million of these cases.

Jack Smith's federal Washington, D.C. case for, we can call it January 6th. It's really more focused on what happened before January 6th, but January 6th. And this is one of the strongest cases out there, right? Just to be clear. I think it's less strong than the documents case, but it's definitely stronger than the hush money case. So I'd put it in the middle. How about that? Okay, so, and he has 91 indictments, by the way. So four indictments, 91 counts within those four indictments. Four indictments, 91 counts. Exactly.

Exactly. It's confusing for even us journalists who are covering this. Totally. Totally. I was explaining to my son who's in college, like it's not 91 indictments. He was like, I thought, no, there's four different indictments. Meaning he has to deal with four different cases, four different trials. I'll just, let me just list them. Okay. Because it never hurts.

There's two federal cases, two Jack Smith federal cases. One is for January 6th in Washington, D.C. That's the one we're talking about today. Another one is for classified documents in Mar-a-Lago. That's in federal court down in Florida. Those are the two federal cases. Those are his prized possessions that he brought to Florida with him. But we should note that the special prosecutor, Jack Smith,

was appointed by the Justice Department, right? So there'd be some distance from the Biden administration. And Joe Biden himself is being investigated for his handling of classified documents as well. By a different special counsel, right. And we're actually waiting on that

report to drop at any moment. So that'll be interesting, too. It sounds like the reporting is Joe Biden's not going to be charged and they're not going to recommend charges. But I think the concern on Biden's side is it could be really ugly. There could be visuals of those documents strewn about his garage. You know, that could be sort of the Corvette. Yeah, exactly. We can say we can Trump's case essentially. Right.

Well, yeah, I mean, I kind of willy nilly with classified documents. I think the political play on that is let's say there's these offensive photos of documents strewn around Delaware, around his house. I think Trump's people are going to go, all right, so everyone freaked out about documents at the stage at Mar-a-Lago. Same difference. It's not the same difference, but it'll look different.

It'll get muddled in the end. Yeah, exactly. Then there's two state cases. There's the almost forgotten Manhattan hush money payments case brought by the Manhattan D.A., which I think is the weakest and most petty of the cases. And I have real questions about whether it ever should have been brought. And if you're wondering what hush money payments, it's the ones from eight years ago to stormy Daniels. Keep her quiet ahead of the election.

Right. And it's not even the payment of hush money. Hush money is not illegal. It's the allegation is

In Trump's internal documents, they falsely logged those payments as legal fees rather than as, I don't know, hush money to porn star or something. And that was the first indictment that dropped, which was why he was able to claim politically that it was like a witch hunt. Right. Because it wasn't a very strong case. Exactly. I mean, when you whoever leads with the weakest foot. Right. Whoever does that in any area of life. And so.

As we'll discuss in a moment, there's a pretty good chance that's the first one tried as well, which if you talk to like, I won't name names of people we know in common who hang around here at CNN who understand Democratic politics are like, please don't let that be the first one tried because the exact reason you said. I think Republicans saw it as a gift. Yeah, they really did. I think that's right. And it turbocharged his campaign and he raised a ton of money and.

And he was able, he was pulling behind DeSantis and he shot right up ahead of him. Yes. And then the fourth case is the much troubled Fulton County DA, Fonny Willis case, which I just wrote a piece about what a disaster this is becoming and how really the DA's conduct in this case is outrageous. And I think it'll cause a major problem. I don't think that one has any chance of getting tried before the election. Yeah.

let's make a few notes about that one. First of all, when it first came out, it was a sprawling Rico case, which doesn't that take years to prosecute, right? A Rico case generally. It can. I mean, that's what I used to do when I was a prosecutor here in Manhattan. Cause I was, I was an organized, I wasn't, you're one of the top guys in the game. Okay. I was in the organized crime unit. No, I just said I was in organized crime, which is how we used to say it. But I guess I should be clear here. I was in the organized crime unit, the anti-organized. Um, anyway, you get the point. Um,

Yeah, those cases can take a long time. And Fannie Willis charged in a very sweeping way that I was sort of dubious on from the start. I mean, I wasn't sure it was necessary. What were the charges again, just so you can remind everyone? She charged Donald Trump and 18 other people. This is the case where Rudy and Mark Meadows and all those guys are charged, Sidney Powell, with basically the...

The human term for it is trying to steal the election in Georgia, but it's racketeering, meaning they were conducting a criminal enterprise with multiple crimes going on at once. So she charged it very broadly to much fanfare. She did a lot of media. But if you look carefully, she was getting herself in trouble from the start. She was creating political conflicts of interest. She was making inappropriate public statements. And then it just blew up the last couple of weeks with these allegations about this president.

affair, which she's now admitted. But it's not the affair. The prosecutor on the team. Yes. The D.A. with the outside prosecutor, this guy, Nathan Wade, she brings in to run the case. She claims they started the relationship only after he became the prosecutor. Count me a little bit skeptical of that. Yeah. Why do you bring out an outside prosecutor, by the way? Not only that, Tara, an outside prosecutor who's never prosecuted a single felony in his life. And

And now you're going to go, who's going to lead the very complicated RICO that's the most important case in the history of this state? Let me get a guy who's never tried a felony case as a prosecutor. Also, she was paying him for travel. There was a lot of like corruption involved in this, right? Can I put you on the spot just as like a normal human to get your reaction to something? Yeah, sure. OK, so I work for the New York Post. I know. I know. You know.

government sleaze and crime. Oh, good. So with that, I want you to, as a person who understands government sleaze and crime, I'm going to put this question to you, okay? So they go and hire three outside lawyers. First of all, this is the Fulton County DA. This is Atlanta. This is a major metropolitan DA's office. Fannie Willis decides, I don't really have the right people in here. She has homicide prosecutors. She has racketeering prosecutors. She goes and hires three outside people. Top market, by the way. Top market to go as a

as a ambitious young prosecutor. Yeah, exactly. So, okay, here's the deal. Each of them gets 250 bucks an hour and they have to submit their bills to the city. The first two prosecutors, not the boyfriend,

In total, over two years, they have billed for and been paid $73,090. Now, here's my question to you, Tara, experienced veteran of corruption and all sorts of wrong conduct. How much money paid to the third guy, given that the first two made $73,090? How much money paid to the third guy would make you say, holy crap? Um...

Anything that would double whatever they were making. Okay, so like $200,000-ish? Yeah, and that's about how much he got, right? $200,000? No, he got $650,000. Oh my God! It was the travel that was like $100,000, I think I read somewhere. Maybe. And I was shocked by that, right? They were traveling together on part of the dime? Well, so that's part three. So...

He gets appointed despite having under qualifications. He gets paid $650,000 over two years while, by the way, he's also running a private practice. He bills them for 24 hours in a day. Wow. It's wild. And then because he's dating the DA, they're traveling together and he's paying for some of it and she's paying for some of it. But you can see the problem. And then to me, the even bigger problem than that, the part that...

I'm sorry, every prosecutor who goes in the media should be going crazy about this. You know how prosecutors, we love to say, we do our talking in court, right? It's like a cool prosecutor catchphrase, right? And it's true. You're not supposed to be out. There are ethical rules. There's a specific ethical rule in Georgia, but there's ethical rules saying you can't make public statements that might inflame your jury pool. And what does Fannie Willis do?

She doesn't respond in court. She does later, but at this point, she doesn't respond in court. She goes into a historic church in Atlanta on Martin Luther King Day, and she says, the reason they're picking on me, the reason they're making these motions against Nathan Wade is because they're racist.

What could be more inflammatory to say than that? And so now, look, she's creating problems for herself left and right. And there's going to be a hearing on the 15th. And we'll see what happens. But that case is descending into the muck very quickly. It was already a hard one to charge. And I can imagine, I mean...

Would they have to pull her from the case? I mean, or do they just does this just cause more delays? If I was the Trump team, I would be going nuts with this one. Yeah, definitely will cause more delays, could result in her being tossed off the case in an extreme and I think somewhat unlikely scenario could result in the outright dismissal of the case. I mean, there's an argument that her statements to the church were so unlawful.

so wildly improper and inflammatory that it violates the constitutional rights of the defendants. Her only response, she put in her brief last week, her only response was, I wasn't talking about these defendants or this case. I mean, that is a Donald Trump level, just outright denial of obvious reality. So I don't know what's going to happen with that.

Yeah, well, honestly, this sounds like a big political win for Donald Trump. Oh, yeah. Any corruption, when someone is prosecuting you and there's any corruption, that's a political win. He'll accuse you of corruption even if you're, you know, the Holy Father. Squeaky clean.

like Robert Mueller himself. Right, exactly. He'll find like your aunt who once donated to, you know, some Democrat or something. I know. And these people are just serving it up for him. Gosh. Totally. And the problem is because it is so complicated, because there are four indictments, 91 charges, so many things to keep track of, even as a journalist myself who's really paying attention more to the politics and the legal, I get, you know,

confused by all of it. And I can only imagine what our listeners are thinking at home. So I want to zero back into the news of the day and why this immunity case being dismissed is so consequential because I think...

For voters, people who are just really interested in politics, they want to know, will Trump be convicted before the election? Because the polling shows that if Trump is convicted before the election, it changes the outcome of the race. A lot of voters say they will not vote for him if he is convicted. They'll vote for him if he's indicted, but not if he's convicted. So give us an idea. I know his team. I've spoken to his legal team. They say delay, delay, delay. They are masters at it. Things are moving at a glacial pace, but

Give us an update. What are you thinking right now? Yeah. So let me let me take sort of let me take it from the most extreme. Donald Trump will not be in prison on November 5th. I promise you that because even if he's convicted, which could well happen, he's not going to get sent to prison immediately. He's going to get no ankle bracelet. That could be there could be like a monitoring on him or something. But this fantasy of him in an orange jumpsuit on the chow line is like

Absolutely not going to happen before the election, because even if he gets convicted, he will get what's called bail pending appeal, meaning you don't have to surrender and start serving your sentence until after all of your appeals are done. So we're down the line here quite several years. OK. Oh, OK. So that's number one. Will he be convicted, tried and convicted before when you're on bail, though? You can't leave the country, right?

You're on bail can be as broad or as narrow as the judge wants. Like there's such thing as bail where the judge just says, hey, you can do whatever you want. I trust you just come back. There's bail where you can't leave your house. There's all every flavor in between, basically. So there could be a form of house arrest in Mar-a-Lago. Yeah, or some restrictions on his travel. I mean, that's going to be hard to impose when he's in the middle of a general election campaign. Imagine though. Yeah. I mean, he's under secret service protection, so I'm not sure how much of a threat he is, but...

Okay, you'd have to make the argument that they're a flight risk, essentially. Yeah, or a danger to the community, you know, like going to start shooting places up or something, which, you know, again, I think that's far-fetched here. So, okay, just to reiterate for our listeners, Trump, not behind bars before November 4th, maybe some sort of bail situation, convicted, maybe.

Maybe. Yeah. Angle bracelet? Not likely. I don't think an ankle bracelet accomplishes anything that the Secret Service can't. OK, so people are probably wondering how many trials would there be and which ones would there be? There's really three contenders. Let's take the Fannie Willis Fulton County out of it. As it currently stands, the Manhattan hush money case is scheduled for late March, March 25th. Classified documents case is scheduled for May.

But the classified documents case looks like it's probably going to move back. They're having complications with turning over classified documents. The judge there is, this is this judge Cannon in Florida. She doesn't seem to care about jamming it in before the election. She has basically signaled in her prior rulings that if we're close to any other trial or if there's any other continuing difficulties, I'll push it. And so I think we can push that one past the election, which leaves us with the hush money case and the case that we were just talking about today, Jack Smith's January 6th case. Now,

What happened today is the Court of Appeals rejected Donald Trump's argument that he's immune from prosecution, that he said, I can't be prosecuted because this all has to do with stuff that I was doing while I was president and within the job of the presidency. He says, well, look, I was doing what presidents do. I was in the White House. I was talking to state officials and members of Congress. Of course, it's like, what were you talking about?

is kind of the key question. But that claim has been rejected over and over. And today, this three-judge court of appeals in D.C. unanimously said this wasn't even like a close call. They rejected him harshly. They say not even close. They say something in here. Here it is, my copy from the set. They say something like,

If we were to accept your argument, it would collapse our system of checks and balances. So a hard loss for Trump. Now, here's how the timing plays out. This trial was originally scheduled for March 4th. So like three weeks from now. The day before Super Tuesday, by the way. Right. For all you political followers. Yes. Right. When this...

When this appeal was raised two months ago, the trial judge, she had no choice. She issued what's called a stay, meaning we're on pause until this appeal works its way through all the courts. So they have been on a two month pause. And in light of that, the trial judge said just last week, she said, OK, March 4th, not realistic anymore. We're going to postpone it. I'll tell you when soon. She's waiting to see what happens now. Can I just say one thing really quick just to get back to the whole politics of it all?

Nikki Haley has made the argument to her donors, her supporters, I'm an insurance policy with all this legal muck that's coming at Trump. But the more you delay that past Super Tuesday, it's harder to make that argument for her. The earliest in any possible capacity that there's a conviction of Donald Trump

would be May of this year. And that would only be at that point on the hush money case. So if Nikki Haley is waiting for that, I mean, I will tell you, Tara, I was, you know, we chat here at CNN in the green rooms and stuff, and we had a presidential contender no longer in the race.

And I just said to this person, what's your plan? Can I guess it's Chris Christie? I'm not saying. But I said to this person, what's the plan here? Like, how do you really expect to move past Trump? And this person said, well, he's going to get convicted. I said, maybe, but in the summer, like, can you last that long? Right. She can. She has the money, but she won't wait to get the delegates. You're the expert on that.

Yeah. Yeah. Yeah. You know, the numbers. The question is, like, is that going to cause which I don't have an answer to is that going to cause the Republican Party to dump him? And again, no, my we're only talking about the hush money case. The earliest there could possibly be a conviction on the Jack Smith January 6th case is July, maybe August. That's the earliest at this point.

This case now may go to the Supreme Court. It's 50-50 whether the Supreme Court takes it. If they don't take it, then I think this will get back on the calendar for May or June for trial. If the Supreme Court does take it,

then I think there's a very good chance the Jack Smith case does not get tried at all before the election because it's going to take them months to deal with it. And so that's the next thing to watch. Will the Supreme Court take this case or not? And there's nine justices we all know, but people may not know. You only need four justices to take the case. You don't even need a majority. So if you think, OK, Alito and Thomas will probably want to take it. Gorsuch will probably be with them, too.

Can you get one of Kavanaugh, Barrett? I don't think Roberts will be on board. If you can get one of Kavanaugh or Barrett, you may have four and you may be able to slow this thing down and take it at the Supreme Court. And what do you mean by take it? You mean have them rule on it? Is that what you mean by take it?

So the Supreme Court does not have to take any case. They pick and choose whichever cases they want. They say no to over 95 percent of the cases brought to them. They're very, very selective. So what will happen is between now and the 12th, I'm pretty sure Trump's team will. The technical word is ask for certiorari, which is like Latin or whatever. So Trump's team wants the Supreme Court to overrule this case. And they have the political, you know, right now there are more conservatives than conservatives.

on the court. So it's more likely that they'll overrule this. Trump's team absolutely wants the Supreme Court to overrule this and say he is immune. If that happens, case is over. But as a consolation prize and a very healthy consolation prize, I think Trump's team would be just fine with the Supreme Court taking this case, taking their somewhat normal amount of time, even if they rule against him, because that would push it just way

Way past. Well, oh, so they just put it on the calendar and it's a it's a long way down the line. Right. So that's a good enough thing for Trump. Exactly. Like if the Supreme Court takes this case, let's say in let's say Trump's team asks the court to take it next week, which I think will happen. And then two weeks after that, in late February, the Supreme Court says we've granted cert, meaning we are going to take this case. They will then say, and here's the schedule. And ordinarily you're looking at a six, eight month schedule with the Supreme Court. Oh.

But even if they like expedite it and all, you're still looking at two, three months. And now you're looking at the Supreme Court holding this case into May, June, which

And then even if even if they reject Trump here, it goes back to the trial court in June, July. But the trial court can't just say, OK, we have the case back. It's July 1st. We're going to start trial on July 10th. You still have to build in. They haven't even done pretrial motions like they're months away from trial. So that's the thing to watch. Does this is slowing down Jack Smith or can he can can he proceed without the Supreme Court?

He cannot proceed. Well, so Jack Smith is obviously desperate to get this case back into the district court, right? Remember he asked a few months ago, he asked the Supreme Court to skip this middle level. It was a very unusual motion. And he said, hey, Supreme Court, we want you to just skip the middle level and take this case. And the Supreme Court said, no, that's why we just had this argument.

Jack Smith desperately wants this thing back in the trial court. And the way that happens quickest for him is if Trump goes to the Supreme Court and they say two weeks from now, we're not taking it. Then he's then we're right back down in the trial court and they can start again. OK. And the soonest you think that would ever happen?

I think the Supreme Court will let us know if they are taking the case or not by the end of February. So by the end of February, we will have a very good sense. If the Supreme Court's not taking it, it'll go back down. And I'm pretty sure Judge Chuck and the trial judge will say, all right, everyone, be here for trial in June.

And she's she's pretty dead set on trying this case before the election, too. She's made that clear. And I should say this, Tara, this is important to understand. The amount of time Donald Trump is being given to prepare for this trial is nothing. He is 100 percent being rushed to this trial. And I know people say, well, but we the American people deserve an answer. We do. But if you want to blame someone for that, blame DOJ for taking two and a half years.

And the fact to charge this case. And the fact of the matter is the average run of the mill federal conspiracy defendant gets two years to prep for trial. There's people on video smashing windows at the Capitol who were given 18 months, two years to prep for trial. Jack Smith wanted to give Donald Trump five months in a case with 13 million dollars. So

Trump does have a point when he's saying, I'm being rushed. I mean, that's objectively true. And the counter to that is always, well, everyone wants a verdict. Well, a lot of people want a verdict before the election. I want to, I as a personal matter, would like a verdict before the election. But I also don't agree with doing it by trampling on the ordinary process and ordinary constitutional rights that anyone would get.

Okay. Got it. There's my little sermon. So you actually think Trump is being treated unfairly. Okay. In some respects. Yeah. This episode is brought to you by Peloton. You know, for me, fitness has always been about finding that groove, whether it's hitting the pavement outside, which I've done a lot of, or dialing up a sweat session indoors.

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I obviously, I don't know if this makes any legal sense, so I'm going to bring it to you because I'm not a lawyer. But Donald Trump Jr., his son, is saying, well, if a president can be prosecuted for crime while in office, can President Obama be prosecuted for hitting an American with a drone? Okay, here's the response to that.

Yes, this is and this is a key point of the decision that came out today. There is a good legal argument that a president or any federal official is immune, cannot be charged for something they do within their job responsibilities. And so I think the argument in this hypothetical, if I was Barack Obama's lawyer, would be ordering drone strikes is within the president.

right down the middle of the president's job. And I'll tell you the way it was explained to me, Tara, when I started, it applies not just to the president, it applies to everyone in the federal executive branch. When I started as a DOJ federal prosecutor, like the first day, the boss basically said to me, here's the deal. If you get sued because you subpoenaed somebody, if you get sued for something you said in court, if you get sued because something you did in the course of a case or, or,

We weren't even thinking about that, but you're covered. But if you go out this weekend and you get in a bar fight and you injure somebody that's outside of your job scope, you're not covered. Right. Not that I would ever do that. But so that's the sort of way to think about it. And so if you're looking at like the scenario, I know the scenarios they gave the Obamas or how about if someone was to indict Joe Biden for leaving the border open or something like that. Right. Yeah. But the problem with that is the border and.

and military actions, that's all right down the middle of the president's job. Therefore, I think I would argue there is immunity for the president in those scenarios. But the problem with what Trump did here in the court, this district, excuse me, the Court of Appeals just said, you were nowhere near what a president's supposed to be doing. I mean, Trump's trying to say like, well, I was just overseeing the election. And this court and every court that's heard it so far has been like, no, you weren't. You were trying to steal it for yourself, which is not within your job.

Got it. All right. And just to go back to the Supreme Court one more time, what do you think the chances are that they'll take the case? You know, if you had asked me that six months ago, I would have said 95 percent, because this is like a classic case that the Supreme Court would take. It's a massive issue. It's a constitutional issue. It's never happened before. We don't know whether a president has criminal immunity. Now I'm at like 50-50. And I'll tell you why. Okay.

This opinion that came down today, and the three judges, by the way, the three federal judges on this opinion, it was unanimous. Two of them are Biden-Obama nominees to the district court and then the court of appeals. The third one is a Reagan, actually, and then Bush nominee. And this opinion and the prior opinions are all very much uniform. They're very strong. And I

I could just, you know, the Supreme Court doesn't like to get involved in this crap. And they're already going to hear the Colorado 14th Amendment case. Oh, right. We got to get to that. Yeah. This week. Finish up with this. Yeah. So it wouldn't surprise me if like the internal calculation there. And remember, John Robert, Chief Justice Roberts, like he's allergic to this crap. Last thing he wants is to be seen as like the court that makes these politically loaded decisions. It wouldn't shock me if the sort of understanding within the court is like, look, they have to take the Colorado case, the 14th Amendment case. Right.

And so like maybe we'll just lay hands off this one, leave it to them. There's no real split of opinion within the courts as to this one. So I think it's 50-50 whether the Supreme Court takes the immunity question on Jack Smith's case.

OK, and let's get to the 14th Amendment question. So Colorado courts decide that Trump can be removed from the ballot because he was an officer. That's one part of it, right? They say he was an officer. Officer of the United States. The officer of the United States. OK, officer of the United States who incited an insurrection or was in part of an insurrection. Engaged, yeah.

Yes. Engaged in an insurrection. That's the language. Thank you. So there are two parts to this. People, you know, Trump's team argues he's not an officer of the United States as president, although the vice president is an officer of the United States, as stated in the Constitution. So that's sort of up for negotiate, up for grabs. And then also that there is the argument of has Trump been convicted of being, you know,

inciting an insurrection, which hasn't really been tried yet. So this is going before the Supreme Court, right? Yes. Yes. But I was told it was going to happen in January and it didn't happen yet. No, the argument, the briefs were due in January. The oral argument in the Supreme Court, I'm going down there, is on Thursday, February 8th. So, yeah. So, OK, the 14th Amendment basically says anyone who, while they're an officer of the United States, engages in insurrection is disqualified from ever being an officer of the United States again.

I have been skeptical of this theory for two years now. I think I wrote a piece two years ago saying the 14th Amendment sounds great, but here's the problem. We have no idea how this thing works. It's never been passed in legislation by Congress. The Supreme Court's never ruled on it. There's nothing in the Constitution. I'll give you an example here. Think about impeachment, Tara. Everyone knows how does impeachment basically work?

It's a political tool. They vote on it. Yeah. House, Senate, two thirds, you know, half, two thirds, et cetera. Committee. Yeah. Right. The problem with the 14th Amendment is look at the different states. There are like three dozen different challenges happening. Everyone's doing it different. Some states, the secretary of states making the decision. Some states are going to the courts. Some states are going to federal courts. Some states are going to state court and Colorado, the Colorado state Supreme Court ruled by a

four to three ruling, all seven of these Colorado justices, by the way, are Democratic appointees. By a four to three ruling, they say, yes, we find that Donald Trump engaged in insurrection. Yes, it does apply to the president. And yes, we can do it as a state. So here's what I think Trump's arguments are going to be in front of the Supreme Court. One, as you said, the president isn't specifically listed in the 14th Amendment, and he doesn't count as an

officer, scare quotes, of the United States. There's sort of textual arguments both ways on that. I know it sounds preposterous. How could the president not be an officer? He's the officer. I think the better argument- He's a commander in chief, right? Yeah, I mean, he's the top dog. I think the better argument that Trump's team has is Congress has not passed any laws telling us how this works. And by the way,

There's a later section of the 14th Amendment that says Congress shall have the authority to pass laws to implement this. Because this was a Civil War era amendment to make sure that Confederate soldiers did not become leaders. Exactly, exactly. It was ratified in 1868. And so I think what Trump's people are going to say is we don't know. Congress could have easily passed a law at any time in the last 150 years saying, OK, we're going to let the states do this. If they had done that, good.

Go get it, Colorado. But they haven't done that. And so I think the argument is going to be unless and until Congress passes a law telling us how this works, there's no implementation. The only thing Congress has passed, and you alluded to this, Tara, is a criminal law saying anyone who engages in insurrection and is convicted by a jury or, you know, on a guilty plea is disqualified. So really, the argument is that's the only way this can work as a legal and procedural matter. Okay. Okay.

And what do you think they're going to, how do you think they're going to roll on this? They're going to reject this argument. They're going to put him back on the ballot. And here's why. Let me sort of, let's forget about all the legal stuff. If you agree with the proposition that the Supreme Court is just pragmatic, right? And I think they're pragmatic. Like as much as they put on the black robes and act all haughty and use fancy language, like they're just like the rest of us. They're like, how's this going to look? What are people going to think? You know, that kind of thing. They're political in some ways. They're political, totally. Yeah.

Listen, I completely believe they're political at this point. And so if you're the Supreme Court, you're thinking, OK, if they rule for Colorado, if they say, yes, Colorado can remove him from the ballot, what they're saying there is the states have the authority to do this. And what they're then inviting is they're going to have to deal with three dozen of these challenges. Maine is going to come up. And the last thing on this planet that

any of them want is to have to either take or reject 30 of these challenges. If they say, sorry guys- Oh, so that ruling alone would not-

blanket and allow all the states to do it. You'd have to go state by state. Exactly right. That's the problem. If they say, yes, Colorado, you're fine. They would be saying it's up to the states, but that doesn't mean the states can do whatever they want. They can't like flip a coin and say, heads, he's out. They still have to have adequate processes. So let's say he, he, the disqualification in Maine were to hold up, right? He's been disqualified by the secretary of state. Well, then Maine Trump would come up and say, well, judge, well, Supreme court, I've been disqualified in Maine. I want, you know,

And you would even states where the 14th Amendment efforts failed, let's say Michigan, where it's been rejected. The losers there would say, oh, judge, they improperly rejected our 14th Amendment challenge. It would be a disaster for the Supreme Court. On the other hand, if they strike this down, if they say, sorry, doesn't apply to the president or sorry, it's only up to Congress, not the states. We're done. It's a silver bullet. They don't have to deal with this anymore. That's that.

Okay. All right. I've learned so much. I'm going to check in with you all the time. I know I'm gonna have to just watch CNN all day long to watch your clips. Maybe you could ping me, but, um,

Ellie, what do the next six to eight months look like before the election? So here's what I think is the current most likely scenario. And what's fun about covering this story is it changes like by the hour and by the day. I think we are probably going to see a criminal trial of Donald Trump in Manhattan starting in late March for the hush money payments case. Believe it or not, I think that's really going to happen. I think that's going to carry us through April and into May.

important to know, even if Trump is convicted on that case, the type of crimes he's charged with there aren't really prison crimes. So even if he's convicted, they're civil, right? Well, they're criminal, but they're like misdemeanor, low-level felony. And I think, Tara, I think a question for you, I'd be interested to hear what you or other political folks think, is if Trump is convicted of the hush money,

Does that move any political needle? I mean, you said in the beginning the polling says if he's convicted, it moves five, six points, which I think is true. But I don't think people who responded to that poll were thinking of the hush money case. I think people who responded to that poll were thinking of the Jack Smith cases.

I think you're right. I think it'll get muddled. And especially when it's like, especially when they start to communicate that he's been convicted of a crime that happened eight years ago and it was with the porn star. In a Manhattan jury that hates him. Manhattan jury. I think once they get all into that part of it, it'll probably...

I mean, it's not great for swing voters. They don't like it, the conviction. But I think you're right. If people are really paying attention, then maybe they can sort of parse through it. Yeah. I still think whenever Trump faces any sort of indictment, conviction, whenever he's in front of a courthouse, whenever there's a ruling, he's going to argue this is Joe Biden's Justice Department case.

It's a very strong political case, even though it's not actually true in the sense that Jack Smith is a special prosecutor. It's removing him from the Justice Department. But like, it's just the optics of it. The guy's being prosecuted ahead of a of a election. He will he will definitely say that. And I agree. And what will Joe Biden say back? That's the question. Well, it's really interesting. Like, will Joe Biden talk about this case at all? Because it's probably improper in a

political or maybe ethical sense for the president to be yapping publicly about a case where his DOJ, like it or not, I mean, there is distance there, but his DOJ is prosecuting his political opponent. And you're right. Look, part of the problem with DOJ's delay, which is something I've sort of been harping on, is even in the best case scenario for DOJ, the unavoidable fact is you're going to have Joe Biden's DOJ, not in Joe Biden's direction, but Joe Biden's DOJ trying to imprison

his general election opponent just a few months before the election. I mean, as just as that may be, it looks horrible. And this is why I think these cases should have been indicted in 2021. We would have been long done by now.

So that's the problem. So part two to watch for. And he hasn't said anything yet. He hasn't spoken. Joe Biden has not put out any statements. But I think as we get into the election and if he's actually convicted, that's when Joe Biden, there'll be pressure on him to comment. I think the countervailing problem is, right, if he does comment, if he does say, oh, he's an insurrectionist and good that he's been convicted, Trump's going to go, see, they did his bidding. Look how happy he is. He's cheering them on from the sidelines. Right. So I think he's conscious of that, conscientious of that.

That's a little bit of the political calculus. The bigger case to watch is, again, the one where we got this ruling on immunity, Jack Smith's January 6th case. And the way I would boil that down is we'll know by the end of this month, probably by the end of February, if the Supreme Court is taking the case or not. If they're not taking the case, that case is going to get tried in the summer in all likelihood. If they do take the case, all bets are off. In the heat of the campaign, during the convention. I mean, think about this. You're the one who covers campaigns, but like,

if Donald Trump is on criminal trial, he has to be in the courtroom, right? You know, some of these civil trials, he's in and out. He skips out some of DG and Carol. He's there sometimes. He's not criminal trial. You are in the courtroom every day. I mean, how is it going to be if he has to leave the convention and then go right into a courtroom in DC? I mean, what's going to happen? It's wild. Yeah. No, it's wild. And I think it revs up his base, but I think it does turn off swing voters. Yeah.

Yeah, yeah. But it also furthers the argument that he's being unfairly prosecuted if he wants to say that. You know what I mean? Right. And I do wonder what effect it will have in either case if there comes this moment where, you know, we the jury find the defendant guilty. I'm like...

that's tough, you know? And I think even if you, even if you're unsure of the case, I think a voter could look at this all and be like, I don't know, do we just want a guy with this much baggage who's going to be like dismissing cases and trying to pardon himself and have appeals and sentencing and all that. But also let me throw this scenario out there for you, Tara, because I was talking to a well-known democratic strategist the other day who made a great point. And he goes, you

You know, Trump's not definitely going to get convicted here. Like, imagine if any of these cases results in not a conviction. And by the way, you need 12 jurors unanimously to convict beyond a reasonable doubt. You get one holdout. You have 11 to one in Manhattan. You have one cop, one NYPD cop. Could they be from like Staten Island or something? Well, no, we don't. Sorry, we don't draw from Staten Island. The Manhattan jury will only be from Manhattan. Yeah.

But you get one transit worker or a cop who loves Trump and a lot of NYPD officers love Trump. And you get an 11 to 1 hung jury. Hung jury, that's it. Mistrial. You can technically retry him, but that ain't happening here. And I've had 11 to 1 hung juries against me. It's the worst thing in the world.

And it's a huge setback loss for the prosecution. So imagine Trump goes to trial in either one of these cases and the jury hangs. And this Democratic consultant was like, if that happens, it is rocket fuel for him. He'll say, I was wrongly, you know, I mean, everything's been vindicated. Wrongly tried. All this money I spent in legal fees could have been spent on the campaign. I know I can already hear it now.

Everyone seems to be operating on the assumption that if he's tried, he will be convicted. And I do think that's the more likely outcome in all of the, you know, any of the, look,

80, 90% of all cases that go to trial result in conviction. So just mathematically, he's very likely to get convicted on one or maybe all of these. But you get one hanger, one juror who's just like, nah. It's really high profile. I know you said 80 to 90%, but it's the high profile ones that always have the hung jury, right? Yeah, I mean, I'll tell you a quick war story from my case. I covered the John Edwards trial, so I know, and I've covered some other trials, and it just feels like when the stakes are so high in terms of the media, the jury feels it.

I'll give you an anecdote from my experience. So I inherited, so when I was like a new kid at the US Attorney's Office, the more senior people tried John Gotti Jr., universally known name here in New York City. They tried him three times. And each time the jury hung, one of them was 11 to one, what I just mentioned before. Okay, I was brand new at this point. I wasn't worried about it. Fast forward five years.

A federal prosecutor in Florida indicts John Gotti Jr. for the fourth time. Long story short, the case gets moved up to Manhattan. I have to try this case with the guy from Florida. We tried the case, overwhelming case, proof is absurd, and the jury hangs. And afterwards, we got to talk to the jurors, which you don't always do, but they stayed around and we went back.

And the jurors who were for us wanted to convict him all said, oh my God, he was guilty as crap. This is crazy. The jurors who were against us all said, oh, he was guilty, but it's not fair. Like you can't try a guy this many times. That's bull crap. And like, you know, they were just like, enough's enough. Were they Italian? Yeah.

I don't know. I didn't. Well, I'm not even getting into this with you. I didn't. I'm just wondering, you know, I didn't delve into the ethnicity of them. But, you know, the point is, like juries sometimes it's called the technical term for it is nullification. Juries sometimes will say, I don't really care what the facts and evidence are. Something about this case bugs me and I'm out. It happens in high profile cases.

If Trump's convicted on the hush money thing, people might feel like it's a technicality. And if it's on a technical aspect of it, like you said, they called it legal fees. And it's not like Al Capone. Like, you can't get him on the technicality. You got to get him on the crime. It's got to be a slam dunk, I think, with political cases. Right? Yeah.

I think so. I mean, the other thing to keep in mind, though, is like the jury pull is really good for prosecutors. I mean, the two places you would ever want to try Donald Trump, Manhattan, Donald Trump. I looked this up in Manhattan, which is New York County. Donald Trump got 12 percent of the vote in 2020. So 88 percent voted no on him. And in D.C., do you know? Do you know how much what percent of the vote Donald Trump got in 2020 in D.C.?

I'm going to guess like 3%. 5%. Oh, wow. That means his own administration wasn't voting for him. Exactly. His own staffers were like, no, no, no. I mean, mathematically speaking. So those are like, you know, the good news for the prosecutors here is they're going to have ideal jury pools.

But you're right. I mean, high profile cases, you never know like what you never know what you're going to do anyway. But when when the spotlight is like that, it's all bets are off. I mean, look, I think the evidence is reasonable on all these cases. I actually I think the strongest case, as I said before, is the classified documents case. But you're going to you're going to have a shaky jury there because you're going to be in Florida. You're going to have 50 50 on your jury there. Oh, yeah. So Florida wouldn't even prosecute Casey Anthony.

Well, this is the feds. Did they not? I thought Casey Anthony got prosecuted. Am I wrong? No, she's off. No, she was prosecuted, but she wasn't convicted. She got off. Oh, I see. Yeah. Sorry, I said that wrong. If you want to commit a crime, you do it in Florida. That's what I've learned in my experience in tabloid journalism. Yeah.

Good advice from you. Donald Trump got, you know, he won Florida. So even if this jury pool is only pulled from the southern portions of Florida where the case is charged, you got 40, 45 percent of them. You're going to have four or five, six Trump voters on your jury. You're going to have some Mar-a-Lago members on the jury, right? That's actually true. I wonder if that would be an automatic disqualifier or not.

Maybe. I don't know. Yeah. All right. This was a great conversation. I feel enlightened. I hope all of our listeners have as well. Would love to have you back on regularly if you can fit it in your very busy days. I'm talking to Eli Honig from his office in CNN where he is just planted at all times waiting for these breaking news updates as they come because this election will be fought in the courthouses, I think, tomorrow.

All right. Thank you so much. Tara, thank you. I want to be named the senior legal analyst for Somebody's Gotta Win podcast. I'm a listener and I'm happy to be with you. I love that. All right. Is that my title? Can I have that on here? I want it. Yes. Senior legal analyst for The Ringer and Somebody's Gotta Win. Perfect. Don't tell CNN, but I'll take it off the books.

That was another episode of Somebody's Gotta Win. I'm your host, Tara Palmieri. I want to thank my producers, Devin Biroldi and Connor Nevins. If you like this show, please share it with your friends, rate it and subscribe. If you like my reporting, please go to puck.news and sign up for my newsletter, the best and the brightest. You can use the discount code Tara20. I'll see you next week.