On today’s podcast my guest is, once again, Georgetown Law Professor, MSNBC Legal Analyst and Crime Story Consulting Editor, Paul Butler. In our conversation, Paul and I discuss the results in last month’s U.S. presidential election, and its potential impact on the possibility of change to America’s criminal legal process. We also discuss President Trump’s potential exposure to either federal or state criminal prosecution. (You can find links to all of Paul Butler’s contributions to Crime Story here.)
Paul Butler, thanks for joining me today.
Hey, Kary, it’s great to be here.
Kary Antholis :
… Good to have you, as always. So, we have emerged from an election season with a new President-elect, Joe Biden. Your thoughts on how the election went and, on the two contestants’ reaction to the results?
I think that President-elect Biden will be an infinitely better president than President Trump on almost every level. And so, I think it’s good news for democracy and for the United States that we have a new president. President-elect Biden seems like a profoundly decent man. He’s never been a leader on racial justice issues, but it seems like he might be rising to the moment and the movement in the national reckoning on race.
I was gratified to see that his four primary commitments as president include racial justice, so, it’s good news. When my book, Chokehold: Policing Black Men, came out, it was the beginning of the Trump administration. A lot of activists in their criminal justice base were rightfully concerned about what it meant that Trump would be president.
I responded to them in the foreword of Chokehold, where I noted it was the very beginning of the Trump era, but just as the police had not treated people better during the Obama administration, I didn’t think that the police would treat people worse during the Trump administration, or at least that there wouldn’t be anything about his presidency that impacted the day-to-day conduct of the police.
And when we look at the most dramatic statistic which is how many people the police kill every year, that number, which is almost always around 1000, is remarkably consistent; it’s consistent through Democratic and Republican administrations. And what it suggests, I think, is that while the woman or man in the oval office can set a tone and can certainly make a difference with regard to reforms, it’s not just a Trump thing that the justice department laid off reform of police departments during the Trump administration; that’s a Republican thing. That’s happened during almost every Republican administration.
And so, reform in the way that you and I have talked about before, Kary, it makes a difference. It’s not transformative, but it’s important. So I think we’ll see those reforms. I’m hopeful we’ll see more reform work during the Biden administration, but I’m not optimistic that the 1000-plus people who the police kill every year will… that that number will be disrupted by the Biden administration, just as it was not disrupted by the Obama administration.
And, finally, related to that, I wrote an op-ed at the Washington Post about my concerns about the racial breakdown of the election in terms of who voted for Trump, what it tells us about where we are as a nation. And according to exit polls, the majority of White people in virtually every demographic voted for the reelection of President Trump. He got about 50% of the White college-educated vote, and significantly higher percentages of other White demographics, but he won virtually every White category: men and women, people of different ages; and again, people of virtually every, um, educational level.
And when you look at what we’ll be talking about for most of this podcast, which is President Trump’s criminality, his corruption, and when you add to that the fact that he’s presided over the deaths of 250,000 people in the United States from COVID-19, and when you consider how he’s aided and abetted White supremacists, the fact that most White people wanted four more years, is very discouraging.
And in contrast, every single minority group, racial or ethnic minority group that I could find polling data on, voted in large majority for President-elect Biden: African Americans, Latinx people, and Asian Americans. And I just don’t know what to make of that. It doesn’t have to be about racial justice, or gender justice. I would not have said this about McCain or Romney or another Republican if they won, but again, while I don’t think that President Trump is exceptional politically, I think that a lot of his platform is of a piece with Republican platforms. But I do think in terms of his lack of integrity and his lack of character, and his ineptness, most importantly, the way that he’s literally responsible for the deaths of thousands of people. The fact that most White people either don’t understand that or don’t care enough about that to not want him to be president for another four years is extremely troubling.
You know, before we move on to Trump’s exposure to criminal prosecution after January 20th, I want to drill down on one aspect of, of what you just said, which is the, the diversity of opinion among both the Latinx community and the White community on Trump.While the African American community was fairly cohesive in their repudiation of Trump, there were a lot of stories about on the one hand, the softness of Biden’s support among the diverse Latinx community. And on the other hand, the openness among college-educated Whites to a more Progressive perspective on, number one, Trump and Trump-ism, and number two, issues related to racial equality. And I wonder if you might drill down on the nuances within those communities.
Great. So, Trump did better with at least two subsets of people of color, and by did better, I mean he increased his performance in terms of getting votes between 2016 and 2020. And those groups are African American men and the Latinx community. So, Trump got somewhere around 15% of the Black male vote in 2020, compared with a minuscule portion of the African American female vote. Now, we don’t wanna overstate this; 85% of Black men voted for Biden, but 15% is slightly better than Trump did in 2016.
He also got an incrementally improved showing among Latinx communities. Also important not to overstate, Trump got one-third of the Latinx vote; two out of three Latinx people voted for Biden. Would that (laughs) two out of three White folks have voted for Biden? Would that, in the case of Black men, 85% of White folks have voted for Biden? And when I say would that, again, I, I’m not thinking about partisan politics; I’m really not. I’m, I’m just thinking about who’s capable of leading the country, and I think that Trump has proven that he’s incapable.
The concern among a lot of people was that if something important and terrible happened during the Trump administration, that as a nation we’d be up shit’s creek. And at the beginning of 2020 it seemed like we lucked out, right? That we made it three years and we just had to hang on until November and hopefully the voters would do the right thing and we would have gotten through the Trump era without a catastrophe. And I don’t have to keep going on.
With regard to White folks, again,it’s inexplicable. So, I mean, you’re, you’re a White person, Kary. (laughs) Account for your people. What’s going on?
Well, I would differentiate between, between White people who are grievance driven and White people who are empirically driven in their assessment of political decisions. Trump clearly appeals to grievance-driven voters and, one of the explanations that’s kind of compelling to me is that the reason that he started to get a better share of Black men, but particularly Latinx men, was that as those Latinx men move into the middle-class, they start to share some of the politics of the middle-class communities of other ethnic persuasions, particularly when it comes to issues of economics and issues of governmental involvement in their lives. Trump drew his support from people who were opposed to Progressivism because they feel threatened by it. where Biden found support was among White folks who feel more threatened by the grievance politics of Trump than by any quest for change that’s coming from Biden’s left. And Biden provided enough comfort to those who were in the middle, particularly suburban voters, that he was not gonna do anything too radical for their tastes.
Yeah. So, yeah, that’s very helpful and it sounds right, and it’s spooky. I wrote the Washington Post piece in part because I wanted to express how vulnerable people of color are in this country. And when I say that, you know, some people will say, “Well, Oprah, Barack Obama, Michael Jordan, Kamala Harris, what the hell are you talking about vulnerable?”
But again, the fact that majorities and in some cases super majorities of White people voted for Trump, and if an important explanation is grievance, that sounds racial to me, and it sounds anti-Black and anti-Latinx, and it’s frightening. For African American men, that 15%, who knows. Again, my theory is Trump has a performance of masculinity that resonates with some men of color. He’s got swag. He’s got way more swag than Biden, for example. And to the extent that swagger is also a prized commodity among some Black men, there’s connection.
Let’s shift over to explore what President Trump’s exposure is on the criminal legal front. And I’ll ask you to take off your hat as a scholar in racial equity as it relates to our criminal legal process and put on your hat as a former prosecutor of public corruption crimes. We have discussed two articles, Why Trump Can’t Afford to Lose by Jane Mayer that appeared in the New Yorker in early November just before the election. And, Jonathan Mahler’s piece that appeared in New York Times Magazine called Can America Restore the Rule of Law Without Prosecuting Trump?
What can you tell me about what you see as the president’s exposure to criminal prosecution after January 20th, and the kinds of decisions that will need to be made by politicians and by prosecutors in deciding whether to prosecute Donald Trump beginning on January 21st, 2021?
So, I think there are two big picture concerns about prosecuting former President Trump. The first would be the politics, not in a partisan way, but what it would mean for a new administration to take office and prosecute the former leader. And that’s never happened in the United States. It might have happened with regard to President Nixon, but for the pardon that he received from President Ford, but other than that, we’ve never come close. And, the concern is, Trump was all for political prosecutions. “Lock her up,” is a phrase that helped propel him to the White House.
If, “Lock her up,” is replaced with, “Lock him up,” that’s not a good look without overwhelming evidence and a cohesive, persuasive explanation. So, the persuasive explanation is equal justice under the law and the idea that nobody, including the former president, should be above the law. So, I understand both sides and I understand the tension between both of those sides.
The other big concern is, and I’ve been trying to think of a more elegant way to put this and the only I can say is that, obviously it’s not literal; what the prosecutors in high-profile cases tell themselves is, “If you go after the king, you have to bring him down. If you lose, you’re screwed.” And so, if there were to be a criminal prosecution of former President Trump, the prosecutors must win. Or again, all of the concerns about politics and an erosion of any faith that anyone now has in our criminal legal process, its legitimacy would be called into question, and so I guess that is a nice way to flow into what, if any, charges might be possible.
But again, the important thing to remember is, Not “possible,” in the sense of is there probable cause to bring a criminal case against the former president, but whether the prosecutors could submit a case to the jury that was a slam dunk. That you, you close; the judge instructs the jury; they deliberate; and they come back in, in two or three hours with a guilty. If it’s not a slam dunk, if I’m the attorney general of the United States, I don’t let the case be brought.
So why don’t we break down his areas of exposure that we know of based on public information. And then, let’s talk about the political decisions involved in both the prosecutor’s office and in the state and governmental office, and federal offices where those decisions would be made.
Sure. So again, with regard to Trump’s exposure, we can think of federal prosecutions versus state prosecutions, and we can think about criminal versus civil investigations. So if we start with the federal criminal exposure, I think he’s probably most concerned about the Southern District of New York, which is where Michael Cohen, the president’s fixer and former lawyer, was convicted of crimes that involved Trump. And Trump, famously, was Individual-1 in the charge that Michael Cohen pled guilty to, and most certainly were he not president of the United States, Trump would have been indicted in that case.
So an important decision for the justice department and the next U.S. attorney in the Southern District will be whether they want to go back and open up that case and indict the president, since he will no longer be in office and federal prosecutors won’t be bound by the DOJ policy against indicting sitting presidents. That’s a case in which a lot of the evidence is on paper. You’d have an eyewitness who probably would cooperate with the prosecutors in Michael Cohen; he has, in public statements since, suggested that Trump is guilty.
So, slam dunk? (laughs) This is the hard part. I don’t think that any case against Trump would be a slam dunk. And that means, do prosecutors bring a case anyway because the evidence is there and if they get the right jury they can get their conviction; or, do prosecutors not bring the case, because again, if you go after the king, you have to bring him down. So, it would be nice to think that it’s only a policy decision, but the politics are kind of inexplicably intertwined with that decision. So if there’s a great federal case to bring, I think that in terms of the evidence, again, his exposure in the Michael Cohen matter is ripe.
There’s also the issue of the reliability of Michael Cohen as a witness. As I understand it, even in proffering testimony for the deal that he got from the Department of Justice, he was less than candid about other aspects of his business, and one might imagine that Trump’s lawyers will pick his credibility apart. are there any other areas that you see Trump as being vulnerable to prosecution with other witnesses beyond Michael Cohen, either on a federal or on a state level?
Yeah, so you’re absolutely right, Michael Cohen is a snitch and he only came semi-clean when prosecutors were coming after him. And, we know that snitch evidence is notoriously unreliable because the only reason that the canary is singing is because she doesn’t want to be in the cage. And so no sane prosecutor would rely exclusively on any snitch testimony, and particularly, the testimony of Michael Cohen. there would be other witnesses, including, Trump’s confederates in his businesses and also people from the National Enquirer. So again, you’d have some live witnesses. You’d have a problematic witness in Michael Cohen; I’m not even sure prosecutors would call him; and a lot of documents, though, which I think would make the case most effectively.
In terms of other areas, again, this goes back to my opening statement about the extravagant corruption of Trump. So, you could look at the obstruction of justice in the Mueller investigation. you could look at what Trump got impeached on and think about a case involving a bribery or gratuity in his outreach to the Ukrainian president. Some people have suggested, e- election or campaign-related crimes; I think those would be especially problematic, so if I were prosecutor, I’d stay away from, from those.
So if you ask if I think that Trump is guilty of any of those federal crimes, I’d think yes, he’s guilty of obstruction of justice in the Mueller investigation, for example. And now there is a, kind of, emerging historical reassessment of Mueller himself as a prosecutor. You know, when he was first appointed, I was on the bandwagon of people who thought that he was the man for the job. And I think there’s an emerging understanding that he was not up to the task. And one way he wasn’t, was in his failure to pursue obstruction cases against Trump. And so, it would certainly be logical and reasonable for another federal prosecutor to pick up where Mueller left off and investigate that.
So, investigation’s almost certain for federal crimes. And then, I think what prosecutors do is what we used to do when I was in the public integrity section of the justice department. You draft an indictment based on the grand jury work, based on the evidence that you have and you submit it to the most experienced prosecutors in the office. So,in my squad at DOJ, there might be 10 lawyers for what we called indictment review. And the job of those prosecutors is to look at that indictment and tear it apart, or try to tear it apart, in the way that excellent defense attorneys will do. And if the indictment survives that process, and there’s still a case to be made where you could persuade 12 people, prove beyond a reasonable doubt, then you bring the case.
So, I think the easy part for the next U.S. attorney in the Southern District or the next Deputy Attorney General of the United States will be that first part, putting together the indictment with the evidence. I think the hard part, again, is going to be that indictment review with the experienced federal prosecutors around the table, asking themselves whether they could persuade 12 people from the community, some of whom almost certainly voted for Trump, to find beyond a reasonable doubt that he’s a criminal.
You know, I interviewed Andrew Weissmann and one of the things he said in his book and also said during the course of our interview was that, even though Mueller encouraged him and his colleagues to coordinate with local, state and local prosecutors on some of these charges particularly in New York, Aaron Zebley, I believe, indicated that he’d received word from Rod Rosenstein, who as Deputy Attorney General with the recusal of Attorney General Sessions from the case, Rosenstein warned him off coordination between the special prosecutor’s office and state and local prosecutors.
Do you think that Biden’s pick for attorney general will coordinate with state and local prosecutors on what they choose to do? Or, do you think that they’ll put up a firewall between their work? And what, if anything, do you think Joe Biden will have to say about all of that?
So, almost certainly, the federal prosecutors will work with state prosecutors, in an investigation of former President Trump, and that’s what they do in (laughs) every case. That’s what I did when I was a prosecutor; I reached out to state prosecutors to let them know what was going on to see if there were ways that they might be helpful. And also, to make sure that a federal prosecution was in the interest of justice. If the state was on the case, then sometimes there wouldn’t be a reason for a federal prosecution as well. And again, to the extent that they can work together, I think that’s in the public interest; it makes the criminal legal process more fair. And since there’s different investigations that state actors do versus federal actors, again, the more information, the more informed the decision is, so almost certainly, the attorney general will work with local prosecutors.
In terms of what Joe Biden should say or do about this, he should say or do nothing (laughs), which is pretty much what he’s indicated. So, President-elect Biden has suggested that he would be concerned about bringing a criminal case against President Trump for the reasons that I talked about earlier. But he’s also acknowledged that the decision should not be in his hands in the way that President Trump is always tweeting about how this person or that person should be prosecuted by the Justice Department; that’s inappropriate, especially if you’re naming specific names.
To my concern at the time, President Obama wouldn’t even say that about George Zimmerman. The closest he came is to say that Trayvon Martin could have been Obama’s son. But even when pressed to encourage a prosecution or a conviction of George Zimmerman, Obama would say that, “That’s a decision for the local prosecutor and for the jurors.” And while I wasn’t crazy about that, that point of view (laughs), it’s certainly more presidential than the way that Trump has seemed to wish that the justice department criminal division was an arm of his political campaign and an arm of his personal defense team.
And Biden, to his credit, is not going to go there. So, he’s going to let the attorney general make the decision, which is why it’s so important who that attorney general is going to be. And while, apparently, the Republicans are quaking in their boots that it might be Sally Yates, who has up close and personal experience with Trump’s criminality.
Two questions. Who do you think Biden’s attorney general will be? And the second related question is, if Paul Butler was making the choice, who do you think he should pick to be his AG?
So, I wish I knew (laughs) who he was going to pick to be attorney general. What has been gratifying is to see Biden’s acknowledgement of his base and his understanding that African American voters are the reason that he’s president, and especially African American women. And so, in his I don’t know what you would call it; it wasn’t an acceptance speech. He said to the African American community that, “You’ve always had my back and I’ve got yours.” And no president, not even Barack Obama, has said that to Black people. I think there was an implicit hope and understanding that Obama meant that and the politics meant that he couldn’t say it, but the politics around Biden are, quite different and provide a opening for racial justice that Obama did not have.
And I note in the Washington Post op-ed that one of the concerning things about the politics in this country is that, in this Democratic primary that we just lived through, people of color discounted extremely qualified candidates of color for president. And tThey were discounted precisely because the candidates themselves were people of color and thus seen as less electable if they were running against Donald Trump. And so, we had people like Senators Booker and Harris, Andrew Yang. we had really an embarrassment of riches of people who-
Julian Castro, of course.
… Who, to my mind just on paper, was the most qualified of almost any of the Democratic candidates. And in terms of the movement for Black Lives, Castro embraced the platform more than any of the other Democratic candidates. And, you know, one way that I saw race at play among Democrats was comparing the reception that Castro got compared to the reception that Mayor Pete got. And again, both very qualified candidates, either one of them would be a much better president than Trump, but they have similar backgrounds and pitches, but Mayor Pete got way more attention than Castro, and I thought that that was disappointing, and, also racial.
But all that’s to say is, Biden does what? Black folks did have his back and part of the appeal was his whiteness. And he was right when he acknowledged that he owes the people who need racial justice the most, African Americans, Native Americans, Latinx people, Asian Americans. he owes us racial justice to the extent that it’s under his power. And I’m pleased, again, that he so far seems to acknowledge that and be responding in terms of his appointments.
Among his his four principle commitments, the pandemic, obviously; the economy, obviously; climate change, obviously; and racial justice, which should be obvious but isn’t always. And, I actually remember the question you asked me, Kary. So, for attorney generals, in terms of the names that have been floated,I’m a little disappointed that none of those folks are known for leadership or racial justice issues. And again, obviously that’s not the only concern of the attorney general, and again, that person will have to make difficult decisions about prosecuting Trump. But, there are a whole bunch of (laughs) people who’ve been leaders in the racial justice space, lawyer types who would be amazing attorney generals and, most of those folks haven’t been in the mix, to my disappointment.
Okay, so I’m gonna burrow in here and say, of the people that have been mentioned, who do you think is the right choice for him? And then, of all the people that are out there that he hasn’t put on his short list, who is the one person you would put forward and say, “While you’ve still got an open mind and an open slate, President-elect Biden, consider that person”? So, two, two names, one is from the people that have been mentioned as being under consideration, and second, who your ideal candidate for the moment would be.
So, Deval Patrick, who’s the former governor of Massachusetts, is a name that’s usually on the bottom of the list. I think that he would be a very fine attorney general. For folks who, whose names I haven’t seen but who would be amazing leaders, Sherrilyn Ifill, who runs the Legal Defense Fund, and Vanita Gupta, who runs the Leadership Conference for Civil Rights, both women of color and both amazing lawyers and amazing leaders with proven track records of creating equal justice under the law.
And so when I mention those four commitments and how important it is that racial justice is one of the four, uh, the justice department is going to be certainly not the only agency, but perhaps the main agency where that work is done, and I’d think to have a leader like Sherrilyn Ifill or Vanita Gupta would be transformative.
Paul Butler, as always, thank you for your time.
It’s always a pleasure, Kary.
Have a great holiday.