Some pundits have described the New York case that led to Donald Trump's indictment as underwhelming. Former federal prosecutor Glenn Kirschner, who is also a legal analyst on MSNBC, is having none of it.
Kirschner told me on "Salon Talks" Tuesday that he was surprised that the charges against Trump were all felonies, with no misdemeanors mixed in — and 34 felonies at that. "Trump is facing 34 felony counts, which for those scoring at home is a sentence potentially of 136 years in prison," Kirschner said. "Trump will be eligible for parole by the time he's 148."
Kirschner, the former head of the homicide unit in the Washington, D.C., U.S. attorney's office, certainly doesn't expect Trump to get a long prison sentence, even if he's convicted on all counts. But he noted that the first indictment against Trump has now happened and that "barrier has been broken." He expects Trump to be indicted by the Fulton County, Georgia, district attorney and by the Department of Justice as well. Prosecutors "are a competitive bunch," he said.
Kirschner didn't hold back in criticizing the DOJ for not moving more quickly in charging Trump for crimes related to the Jan. 6 insurrection. "Merrick Garland has fallen down on the job," he said, in declining to prosecute Trump more than two years after he left office.
Watch the "Salon Talks" episode with Glenn Kirschner here, or read a transcript of our conversation below to hear more about what he thinks justice looks like for the former president and why Trump's continued insults against government officials could lead him on "the road to contempt" or "pretrial detention."
This interview has been lightly edited for clarity and length.
The indictment of Donald Trump was finally unsealed this week. What was your takeaway?
I was surprised to see 34 felony counts brought against Donald Trump. There was a lot of speculation that there may be some misdemeanor charges; there may be some felonies attached to those misdemeanor charges to bump them up. I don't know that anybody was expecting 34 felony counts, which for those of us scoring at home, carries a sentence, potentially, of up to 136 years in prison. Donald Trump would be eligible for parole when he was about 148, by my calculations. Of course he's not going to get time like that.
The other thing I found remarkable about the indictment was that it was accompanied by a statement of facts. Ordinarily, all that stuff gets dumped into one document, the indictment, and it's a speaking indictment. New York has its own ways of charging, but I found it remarkable that it looks like not only Michael Cohen is a marquee witness against Donald Trump — we knew that all along; he's a co-conspirator, so of course he's an important witness against Donald Trump — but David Pecker and Alan Weisselberg provided sharply incriminating evidence against Donald Trump.
"In pretty rapid succession we'll probably see one or more additional indictments of Trump."
Now, that doesn't mean they will be testifying witnesses at a future Trump trial, but they may well be. Quoting the words of David Pecker, he said, "I will be your eyes and ears. I will keep a lookout for negative damaging information. I will catch it and I will kill it, and at the same time, Donald, I will find negative things to print about your opponent." It doesn't name Hillary Clinton, but I think we can fill in the blank. This was a conspiracy that included at a minimum Donald Trump, Michael Cohen, David Pecker, Alan Weisselberg and perhaps others. One of the open questions is who among them, other than Michael Cohen, will be testifying against Donald Trump come trial time?
We've talked in the past about the potential of other charges beyond the hush money payments. There are three different stories in the statement of facts that Donald Trump did not want disclosed to the public. One involved a doorman who was paid $30,000 not to say that Trump had a child out of wedlock, and two others had to do with Stormy Daniels and Karen McDougal. But there was nothing in there about financial crimes, despite the fact his corporation was found guilty in a New York court in December. Were you surprised about that?
I would say I was mildly surprised, but this is just the opening act. There could very well be either other separate indictments brought by New York. It seems like there is a criminal scheme to defraud in the first degree case ready for the making against Donald Trump personally, because that case has already been made against his chief financial officer and his organization. Perhaps we will see another indictment some months down the road, or we could even see a superseding indictment where all these charges are put into a more fulsome, more complete indictment, or maybe we see no other charges out of the Manhattan district attorney's office. We just don't know at this point.
What I'm hopeful of is that this will not be the first indictment. Whether the next one comes in Georgia or from the feds is an open question. I'm pretty sure, just as we have been talking all along, that Donald Trump will still be on the receiving end of more indictments.
You're a former prosecutor. Does it matter that District Attorney Alvin Bragg has become the first prosecutor, through his grand jury, to indict Donald Trump?
"There you have it, direct evidence out of the mouth of the orange horse himself about his motive for the classified documents crimes."
The reason it matters is atmospheric, not legal. I have maintained all along that no prosecutor was enthusiastic about being the first one to criminally indict a former president of the United States because it had never been done before. Well, now the maiden legal voyage is underway; that barrier has been broken. I can tell you, prosecutors may not be monolithic, but we are a competitive bunch. Now there are other prosecutors out there who know that Donald Trump committed crimes in their jurisdictional backyard, whether it's Georgia, federally or elsewhere. Now there is this sense that, "OK, I have to hold him accountable for the crimes he committed in my jurisdiction, if only because I'm going to be running for re-election and I need to take on the tough case, the challenging politically charged case, so I can successfully campaign for re-election in the federal government."
Look, federal prosecutors are hired, we're not elected. But we are responsible to the people of the United States. I think the feds will feel like, "OK, it may finally be time for us to step up our game and bring the charges that are so fully supported by the evidence." Yeah, I think in pretty rapid succession we'll probably see one or more additional indictments of Donald Trump.
We should expect more arraignment parties at Mar-a-Lago in the future. Is that what you're saying?
Yeah. Boy, that was quite a party last night. It was a bit of a downer, wasn't it? I couldn't help but think, Donald Trump gets arraigned on 34 felony counts in New York yesterday, he then retreats to Mar-a-Lago and gives a presidential campaign speech. What is he obsessed about? He's obsessed about talking about his fictitious defenses to all his crimes, his criminal cases, his criminal investigations.
I'm not a political pundit. I've never come up with a presidential slogan in my life, but I thought back to Herbert Hoover's "A chicken in every pot." That was his campaign slogan to signal that prosperity is coming. We've gone from a chicken in every pot to Donald Trump's campaign slogan, which is apparently, "A defense in every court." That's what he's going to have. He's going to sell that message to the American people as a reason to vote for him.
If you were Donald Trump's lawyer and you were watching your client go out there, would you be holding your breath every time he speaks to the public?
I think they know the client they took on. They made their decision with their eyes open, and I can only believe it's for the notoriety they hope it brings them, because it's not going to bring them any wealth. We know Donald Trump will end up stiffing them all at the end of the day.
I was never a defense lawyer, not one day in my life. That wasn't the role I wanted to play in the system, although I honor and respect my brother and sister criminal defense lawyers across the bar, because they have a really hard job to do. Not only do they have to zealously represent the rights of their client, of the defendant, they also act as a check on government overreach and abuse and misconduct. Be it the police, prosecutors, the courts, they're doing double duty and in a very real sense they're doing God's work, not in the religious connotation of that.
"Donald Trump is so over the top in his dangerous conduct."
I always felt like as a prosecutor, sometimes I had it easier because I just had to try to seek justice. I didn't have to try to hold the whole government accountable for potential abuse and overreach. That is a mammoth undertaking for defense attorneys.
Now, all that being said, these guys and gals knew what they were getting into when they took Donald Trump on as a client. Yet I have to believe — when they watched that Hannity interview, and he not only admitted to the Mar-a-Lago classified documents crimes, but expressly gave up the motive. As a prosecutor, I never had a defendant spout out of his own mouth why he committed the crimes.
Hannity was trying to throw him a lifeline and give him an out: "I can't imagine, Mr. President, you would have said, 'Bring me the boxes. I want to see what's in there.'" He said, "I have a right to do that. Of course I would do that. Do you know Richard Nixon basically sold documents back to the government for $18 million?" There you have it: Direct evidence out of the mouth of the orange horse himself about his motive for the classified documents crimes, and it is as simple and as base as money.
Legal pundits on TV are debating the strength of the case against Trump in Manhattan. What's your take?
First of all, at its core, as Alvin Bragg made clear, as his prosecution team made clear in the statement of facts, at its core he committed 36 crimes, three dozen crimes, falsifying business records to try to gain unfair advantage in a presidential election. In a very real sense, these crimes are about Donald Trump and his co-conspirators trying to rob us, the American voters, of the full value of our vote. People might say, "Well, you're just kind of bumping up misdemeanor crimes with these ghosts of other crimes." I love when people say, "Well, you can't use a federal crime to bump up a falsifying business records crime in New York because you don't have jurisdiction over federal crimes."
"You put it in the hands of those 12 citizens in a jury box and you let them decide. There's no shame in losing, but there's nothing but shame in refusing to bring a case for fear of losing."
Let me use a couple of examples. First of all, as Alvin Bragg made clear, they committed multiple crimes. They committed violations of New York election law, violation of federal election law, false records being generated in other organizations like AMI. There are some tax implications here. There are lots of other crimes and, importantly, those crimes do not need to be specifically set out yet. It may very well be that the defense will file what's called a bill of particulars, and that will be an effort to force the prosecutors to show more of their cards about which precise other crimes you're using as predicate offenses.
Here's an example I used when I was on air this morning. Let's assume, Dean, you and I are sitting at 30 Rockefeller Center in Manhattan and we enter into a conspiracy to commit a robbery in New Jersey, and then one of us takes what's called an overt act. We do something. I go out and buy a gun to use in the robbery. New York could charge us with conspiring to rob somebody in New Jersey. They can't charge us with crimes we commit in New Jersey. But that New Jersey crime that you and I agreed to commit could become a predicate offense to support the conspiracy charge. The legal theory is no different when it comes to using a federal crime or a state crime in another jurisdiction to bump up your falsifying records crime from a misdemeanor to a felony. If we're engaged in falsifying business records to try to get away with crimes in New Jersey, it is still an appropriate predicate offense to bump up the charge.
In the weeks leading up to this indictment, Donald Trump was attacking Bragg online, calling him an animal, racist, degenerate. He posted a menacing picture of himself holding a baseball bat next to a picture of Bragg's head. At what point does that become a crime?
Oh, it already is a crime, I believe. I think it's called interfering with the due administration of government in New York. I want to say 195.05 is the New York penal code section that it violates. If you attempt to influence or interfere in the duties of an official government employee, and you do it by virtue of threats or intimidation, that's what we have in that picture. Again, a novice prosecutor could prove that to a jury in his or her sleep. Maybe it will be charged in the future. I certainly hope it is.
"The message that has been sent is if you are an aspiring dictator who wants to overthrow the will of the American voters and unlawfully retain the power of the presidency, after you do it, you're going to have a full two years to plot your next move."
That then presents some thorny issues of recusal, because once the Manhattan district attorney is a named victim of a threat, there is an argument that the entire office is recused from prosecuting Donald Trump. This may be one of the motivators for Donald Trump to try to go after a judge and doxx the judge's daughter, go after the district attorney and call out the district attorney's wife. It may be he's trying to build a recusal issue such that he thinks he can get rid of Judge Merchan, who hates him, according to Donald Trump, or get rid of Alvin Bragg as his prosecutor. I don't think it'll work, but there are some thorny legal issues involved.
What I was disappointed to see yesterday was that the prosecutors raised the issue of Donald Trump's incendiary speech that is likely to incite violence, but they did not specifically ask Judge Merchan to impose or consider a gag order or a limited restriction on Trump's speech or his posts. I wish they had gone that extra step, though based on the reporting, Judge Merchan admonished both parties, and that's what judges do when they only want to admonish one party, but they want to be perceived as fair and even-handed. He admonished both parties to tamp down the rhetoric. It's like, well, wait a minute. I haven't seen the district attorney's office threatening witnesses, but OK, judge, you've been fair and even-handed, you've admonished both parties.
That was the first step on the road to a gag order. Donald Trump retreated to Mar-a-Lago and made the same threats in inflammatory statements on Tuesday night. I hope the prosecutors will seek to have him brought back into court, maybe on a show cause order, and have the judge force Trump and his legal team to show cause why a gag order should not be imposed. All of this is on the road to contempt or on the road to pretrial detention because you refused to abide by the conditions of pretrial release. I wish the prosecutors had been a little bit more forward-leaning, trying to take on Donald Trump's dangerous speech.
It seems like Trump is relying on his typical playbook, but not understanding that this game is different. He's never been charged with crimes before. Do you think this could lead to problems he doesn't expect?
It is a new game, but like you say, he's playing by the old playbook. I heard some commentators say, "Even mafia bosses, when we go after them, don't expressly threaten the prosecutor's wife or the judge's daughter." Donald Trump is so over the top in his dangerous conduct. The part that will forever trouble me is that the criminal justice system, whether state or federal, is not rising to the challenge. They're not meeting this dangerous moment because they're playing by these antiquated rules of gentility from decades ago, before presidents of the United States tried to overthrow the government, unlawfully retain the power of the presidency and threaten witnesses. For whatever reason, the system is using its old playbook, the gentle playbook, to deal with an imminent threat to the safety of witnesses and to our democracy. I don't quite know why they're so reluctant to meet the urgency of the moment.
Is the Justice Department late to the game? Should they have been the first to file indictments regarding not just Mar-a-Lago, but the Jan. 6-related crimes, the attempted coup and the attack itself?
Yeah, because the message that has been sent is: If you are an aspiring dictator who wants to overthrow the will of the American voters and unlawfully retain the power of the presidency, after you do it, you're going to have a full two years, two and a half years, to plot your next move. You will not be held accountable in a timely manner. There is no deterrence. The next president, Ron DeSantis, God help us, or somebody else if they get into office, they can do it all over again because DOJ has put its stamp of approval on at least a two-year waiting period before perhaps accountability is prodded into wakefulness. I don't understand it.
"DOJ was my professional home for nearly a quarter of a century ... but they have fallen down on the job."
I posted something critical of DOJ this morning and everybody jumped on me. I'm either being criticized for not being hard enough on DOJ or being too hard on DOJ, but I will always call it the way I see it. DOJ was my professional home for nearly a quarter of a century, and I love many of my friends and former colleagues who are still there, but they have fallen down on the job. At least Merrick Garland has.
Go back and look at the press release from Michael Cohen pleading guilty to being half of the conspiracy. Everything is there in black-and-white in the press release and the court paperwork pursuant to Cohen's plea, Donald Trump is the other co-conspirator. Yet even two and a half years after he left office, Merrick Garland's Department of Justice hasn't lifted a finger to charge Donald Trump for those easily provable crimes. That's an abdication of your law enforcement responsibility.
That's different from Jack Smith and his team. They're going gangbusters and I couldn't be more proud of the job they're doing, but you have to call out the bad and you have to congratulate them for the good. Every agency has both good and bad in it, but I wish they would step up and meet the challenge of the moment.
To you, what is justice when it comes to Donald Trump?
It looks like him being charged — indicted for all the crimes he committed federally, in Georgia and in New York, putting it into the hands of 12 representatives from the community in each of those jurisdictions and letting them decide. I've maintained for a long time that the only thing standing between Donald Trump and a criminal conviction is an indictment. The indictment is the easy part. Why so few prosecutors have been willing to do that easy thing has been disappointing. I'm glad Alvin Bragg has finally stepped up. It is a case that is not without some legal and factual challenges, but it was the right thing to bring the case.
I always had 30 federal homicide prosecutors that I supervised at any given time. We had lots of attrition and lots of movement through my homicide section, so I got to supervise lots of federal prosecutors and I was supervised by lots of federal prosecutors. I always told them during the processing, "It's more important to bring cases than it is to win cases." If you bring the righteous case, the case that is supported by the evidence but is not a sure thing, you're doing the right thing by the victim, by the community, by society, by the American people, because you're in the arena fighting the good fight. You put it in the hands of those 12 citizens in a jury box and you let them decide. There's no shame in losing, but there's nothing but shame in refusing to bring a case for fear of losing. Unfortunately, that is what often drives federal prosecutors, the fear of losing. Right now they have to get over that.
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