The Hush Money Conviction & Sentencing Trump

Episode Notes

Transcript

Bennett L. Gershman:

To me, I can’t believe that somebody would look at this case and say, well, slap him on their wrist. Don’t give him a big punishment here. He doesn’t deserve it. I mean, when I hear that kind of talk, yes, I’m a former prosecutor. Yes, I believe in the rule of law. Yes, I believe in mercy. Yes, I believe in compassion. Yes, I believe that the punishment should fit the crime and all that stuff. But my gosh, this man has done so much to undermine our rule of law, our system of justice. That to me saying he should just walk out of the Courtroom a free man. I just don’t get that.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May I Please the court and have two books out titled How To Get Sued in the Sled. And speaking of books, I have a new book releasing this month, perhaps even next week, titled, how Would You Decide 10 Famous Trials That Changed History? And that book is also going to be a new podcast called In Dispute, 10 famous trials that Changed History. We’ll be sharing more about that here in the coming weeks, which will be soon featured here on the Legal Talk Network. On June 18th, on May 31st, 2024, a New York jury found former President Donald J. Trump guilty on all 34 counts in the highly watched Hush money trial. He’ll be sentenced on July 11th by Judge Juan Marshan. Since that verdict, the former president has lashed out at his verdict and even turned to the Supreme Court of the United States asking them to throw out his conviction.

This is the first ever criminal trial of a former US president and the first to be convicted of a crime. So will former President Trump see jail time and how will this verdict influence voters as they place their ballot for president of the United States? Come November? Well, today on Lawyer 2 Lawyer, we will discuss former President Trump’s hush money conviction. We will talk about sentencing and how a felony conviction of a former president may impact the presidency. And to help us better understand today’s topic, we’re joined by professor of Law Bennett l Gershman from Pace University’s, Elizabeth Hobbes School of Law. Prior to coming to pace, professor Gershman was a prosecutor in the New York State anti-corruption office, where he argued cases in state and federal courts involving public and political officials charged with corruption. Welcome to the show, professor Gershman.

Bennett L. Gershman:

Thank you, Craig.

J. Craig Williams:

Well, tell us a little bit about your role at pace. You teach constitutional law as well?

Bennett L. Gershman:

I teach constitutional law. I teach trial advocacy. I teach criminal law and criminal procedure. I’ve done it for many, many years after leaving the prosecutor’s office

J. Craig Williams:

And in the prosecutor’s office, you were in the anti-corruption unit. Tell us what you did there.

Bennett L. Gershman:

Well, look, I first was in the Manhattan District Attorney’s office where that’s the office that’s prosecuting Mr. Trump. I was there for several years, and then I went to the New York State Anti-Corruption Office, which was a pioneer office. It was the first type of organization like that in the country where there was a special agency devoted specifically to prosecuting corruption by police, by lawyers, by judges, by prosecutors. And in that agency I served as a bureau chief of the Appeals Bureau and prosecuted many, many cases in various courts in New York City where the focus was on the corruption there. As I say, it was a pioneering effort to try to root out corruption in the criminal justice system of New York City. I think the effect of what we did was lasting, and I think we did put a spotlight on the problem of corruption in the justice system.

J. Craig Williams:

Well, we’re certainly in that spotlight right now. Did you work at the same division in the New York City prosecutor’s office or state prosecutor’s office that the Trump trial was in?

Bennett L. Gershman:

Yes, I did. Actually. I did. I mean, it was the same prosecutor office I worked there. I was prosecuting a whole range of cases there. So yes, it is the same office many, many years ago, but I do have many fond memories of that office, and I also have fond memories of the Courtroom where Mr. Trump was tried and convicted.

J. Craig Williams:

Well, there’s one person, as you said, that doesn’t have fond memories of that Courtroom former President Trump. So let’s take a look at this conviction. It’s E felony. What does that mean?

Bennett L. Gershman:

Look, New York state penal law grades felonies from A to EA is the most serious felony, and it carries a punishment of anywhere from 25 years to life. Then you go down to BCDE is the lowest felony. It carries a maximum punishment of four years in jail plus possible probation, fine things like that. But it is a felony, and as I say, the maximum punishment can be 48 months in jail, four years.

J. Craig Williams:

Well, there’s been a lot of talk about what former President Trump’s sentencing might be, and there’s been discussion whether or not you multiply the 34 counts by four or whether they’re served concurrently, which do you think it would be?

Bennett L. Gershman:

Oh, no, no. It has to be served concurrently, Craig. All of those accounts all relate to the same scheme or conspiracy to engage in this operation to bury stories that are injurious to Mr. Trump, but they’re all part of that same scheme. So the punishment for these 34 separate felony convictions would have to run concurrently, and therefore the maximum punishment would be 48 months in jail, four years in jail. Now, there’s a huge range there in which Judge Merch can impose a sentence. I have my own ideas about it, by the way, which I guess we’ll get to eventually, but so he faces a maximum of 48 months in jail plus fine plus probation or conditions after he completes a sentence and so on. But that’s where it stands right now. People are speculating what the sentence might be. What are the mitigating circumstances? Trump is 78 years old, or he will be in a couple of weeks, I think. What are the aggravating circumstances? What will Judge Merchan do? I have my own thoughts about it. We’ll see. We’ll see what happens in July, July 11th, I think.

J. Craig Williams:

Right. Well, let’s jump you put it on the table. Let’s jump right in there. What are your thoughts?

Bennett L. Gershman:

Well, okay, we are talking about a sentence of a man who has committed, in my opinion, serious offenses. I’m not saying that Judge Merch Chance said that he felt that the charges against Mr. Trump were very serious. He felt that this prosecution was a very serious prosecution. So let’s start from right there. This is a serious case and he’s been convicted of 34 felonies. I was thinking, because somebody might want to say, well, what has Judge Han done before in terms of sentencing criminals? And I’m thinking in terms here of a white collar criminal, because we’re not talking about violent convict crimes, murder, rape, kidnapping. We’re not talking about drug dealing. We’re talking about white collar crime, and people know that when I talk about white collar crime, we’re talking about business fraud. We’re talking about stock fraud, securities, mortgage cheating, things like that, and political corruption, which is what I actually was investigating when I was in the special prosecutor’s office.

So Mehan a couple of years ago, presided over the trial of Alan Weisselberg. Alan Weisselberg was Trump’s former chief financial officer in the Trump organization. Weisselberg was convicted of a tax fraud. It was his first offense. Weisselberg was 76 years old. Weisselberg pleaded guilty. Now that’s important. He pleaded guilty, a plea of guilty. We look as showing some kind of remorse. He pleaded guilty, he agreed to cooperate with the prosecution, 76 years old. And somebody might say, well, he must have gotten probation. Everybody is saying, well, no, you can’t send Trump to jail once the was sentenced to five months in jail. Now, don’t freak five months in jail. He’s 76 years old. He pleaded guilty, he agreed to cooperate, and he was sent to Rikers Island for five months. Now, Trump, I can’t think of any mitigating circumstance with respect to Mr. Trump except for the fact that he’s 77, he’s going to be 78 years old. That’s the only mitigating circumstance I can think of. He didn’t plead guilty. He forced a trial. He’s not cooperating. In fact, he’s doing everything he can do to vilify the prosecution, to vilify the judge, to vilify the system of justice. Now,

J. Craig Williams:

There’s been no showing a remorse,

Bennett L. Gershman:

Just the opposite. There’s just been scorning and just vilification. But now stop for a second. And now when the judge imposed a sentence, the sentences in individualized sense, you look at the individual, you don’t look at a system or a pattern range. You look at that person, what kind of punishment does that person deserve for the crimes that he’s been convicted of? And now if you look at Mr. Trump’s history, I mean the history seems to be permeated by fraud. I mean, go back to the bankruptcies, go back to the cheating of his employees in various businesses of his. Go back to the charity fraud, which the attorney general exposed. Go back to the fraud involving the phony college, which the attorney general exposed, the Attorney general convicted Trump in a civil proceeding of huge widespread business fraud, and won virtually a $500 million judgment against him. Think of the civil prosecutions by Gene Carroll where he was convicted in a civil proceeding of raping her. Think of the proceeding where he was convicted of defaming her to the tune of a hundred million dollars judgment.

J. Craig Williams:

I’ve read probation reports before and this one doesn’t look too good.

Bennett L. Gershman:

It doesn’t look, and what about the 10 gag orders that he violated? That’s clear. Violating 10 gag orders, that’s got to stand for something, and then vilifying the prosecutor, vilifying the judge, their family, the system, the rule of law with all of his cronies coming into the Courtroom and gushing about it. The record is so huge. I mean, I can’t think of a white collar criminal who’s got such a lengthy record of such disrespect, disregard, vilification. It’s just to me, I can’t believe that somebody would look at this case and say, well, slap him on the wrist. Don’t give him a big punishment here. He doesn’t deserve it. I mean, when I hear that kind of talk, yes, I’m a former prosecutor. Yes, I believe in the rule of law. Yes, I believe in mercy. Yes, I believe in compassion. Yes, I believe that the punishment should fit the crime and all that stuff. But my gosh, this man has done so much to undermine our rule of law, our system of justice. That to me saying he should just walk out of the Courtroom a free man. I just don’t get that, Craig. Sorry, I just don’t get that. It

J. Craig Williams:

Almost seems like what I call the Vegas OJ effect. He got off, he was acquitted in the trial for Nicole Brown Simpson, but when he finally got hooked in Vegas, they let him have it.

Bennett L. Gershman:

That’s right. That’s right. And I think people were thinking this trial might be the kind of OJ trial that you just mentioned, but this jury was diligent. This jury was courageous. The jurors, some of the jurors I think were threatened by Mr. Trump, and the judge lashed out at him for that. The jurors, I really worry about the jurors in this case, but I think they were courageous. They were strong, and they came in with the correct verdict. I mean, the evidence was overwhelming. The prosecutor did a terrific job. The summation was brilliant. The defense didn’t do anything really except try to undermine the credibility of Michael Cohen, but Michael Cohen, who cares about Michael Cohen, he put things together, but he wasn’t the critical evidence in this case, the critical evidence with the records, the business records, the false fraudulent business records, that was the evidence in the case that the jury had

J. Craig Williams:

And Trump’s knowledge of it

Bennett L. Gershman:

And Trump’s knowledge of it. Yes, and his intention to silence Stormy Daniels to shut her up before the election, so this information wouldn’t go to the electorate and it would hurt him badly if he knew about it. So that was the plot. The records prove it. The case was very, very strong, and the result is now on the record, and we’ll just have to see now how this thing plays out in the next several weeks, he’s, there’s going to be a probation report. There’s going to be a lot of letters, and to the judge, there’re going to be motions and on and on and on. But when the day of sentencing comes, he’ll be sentenced, and I believe that Judge Mer, Sharon will sentence him to prison. My sentence, he won’t go to prison that day of course, because what happens is they delay or stay the sentence pending the appeal. He’ll take an appeal, he exhaust his appeals, and then by the end of the day, after his appeals are over and the sentence is still able to be executed, he’ll go to jail. That’s my prediction anyway.

J. Craig Williams:

If he gets sentenced to jail, he won’t be going to jail before he gets elected before the election.

Bennett L. Gershman:

Well, look, that’s right. If he gets sentenced to jail and he gets elected as president in November and say sometime later on the appeals are over and now the jail sentence has to be imposed and executed, it’s surreal. I agree. It’s surreal to think that the President of the United States will be leading the country from a jail cell in upstate New York somewhere. Is that a possibility? Yes.

J. Craig Williams:

It just sounds like an insane possibility. Well, let’s take the mantle of the presidency and the election off Mr. Trump here to the extent that we can because it’s certainly the crime arises out of election interference. As a former prosecutor, professor, if you were to take an everyday defendant in a criminal case who acted like Trump did in court who got convicted of 34 felonies, then acted like he’s acting now after court denying practically that he’s been convicted and saying that it really doesn’t matter, and we’ll get to the money issues later, but how would a normal everyday person be sentenced in this situation,

Bennett L. Gershman:

A normal everyday person in this situation, assuming, I mean, when you say a normal everyday person, I mean, there are just so many factors here. Oh,

J. Craig Williams:

There’s a million. It’s a crazy hypothetical,

Bennett L. Gershman:

But I agree with you. Look, I agree that somebody who doesn’t have a prior criminal record, somebody who is convicted for the first time of a business type of crime, that’s an E felony. My guess is that that person would not be sentenced to incarceration. I mean, again, that is my intuition, but again, when you look at Alan Weisselberg, I mean, he was an elderly man. He had no prior criminal record. He was guilty of tax evasion. Craig, let me just say this, and I’m saying this, as a former prosecutor, one of the reasons you sentence white collar criminals to prison, I’m saying I’m posing a very harsh sentence, some kind of heavy, heavy, harsh sentence. Why do you do it with white collar criminals? You do it because you want to achieve this goal of deterrence. You want to deter people from committing similar crimes because white collar crimes create are secret crimes.

They’re not committed out in the open like a murder or some kind of bank robbery where you have witnesses and where you have forensic evidence on and on and on. You don’t have that in white collar crimes. The Trump crime that he was convicted of, those are secret crimes. Nobody knew about this catch and kill scheme that pecker and Cone and Trump operating. Nobody knew about that. Nobody knew that Stormy Daniels was hushed up and paid off not to talk about her relationship, her affair with Trump. So white collar crime, it’s hard to investigate, hard to prosecute, hard to get evidence about because everybody is in agreement. And so when you’re able to nab these white collar criminals and get the evidence to convict them, then you want to really hurt them badly in terms of punishment because you want to let other malfactors, potential malfactors, potential white collar criminals know if you get caught, you’re going to get punished heavily.

You see, that’s the difference between a crime of violence and a white collar crime. Crime of violence are easy. It’s easy with juries. The emotion is so heavy there that they get convicted and nobody really worries about a heavy punishment. For somebody who commits a murder or a bank robbery or a rape or big drug deal, white collar crime is very different, and there you’ve got to be much more careful about how the public sees it. I don’t know if the public really sees white collar crime as serious as it really is, and Troy Trump did is a classic white color crime that he committed with Pecker and with Michael Cohen in order to cheat the system of justice, to cheat the democracy, to cheat the voters, they cheated them by their secret plan to bury the stormy Daniel story. That’s what’s big about this, and people have to understand that, and I’m amazed, really, that the jury here got it so quickly and convicted so quickly. They got it. They got the evidence and they got the issue and they were totally unanimous.

J. Craig Williams:

Right. Well, let’s talk about that jury verdict in just a second. Professor Gershman. We’re going to be right back after we hear this message from our sponsors. Welcome back to Lawyer 2 Lawyer. I’m joined by Professor Bennett Gershman from Pace University’s, Elizabeth Hobbs School of Law. Right before the break, we were talking about how quickly the verdict came. Did that surprise you?

Bennett L. Gershman:

It did. I did predict that after the questions that they asked Judge Merchant about having the testimony of Mr. Er repeated, having the testimony of Michael Cohen repeated, they asked for further repeat of some of the legal instructions. Once I heard that, I sort of saw the handwriting on the wall because when the jury asked for new repeating of instructions and that critical testimony of Pecker and Cohen, I got the feeling that that day they would come in with a verdict.

J. Craig Williams:

Let’s talk about some of the crazy things that are occurring from some of the Trump supporters. They’re claiming that the United States Supreme Court can step in here.

Bennett L. Gershman:

That’s impossible. Look, there is no federal issue that this case depended on or that the jury decided that would warrant some kind of federal judicial intervention, and that’s what the Supreme Court is. The Supreme Court and our constitutional law doctrines say that state criminal law enforcement rests with the state. The federal courts don’t get involved in state criminal cases where there is no federal question involved. There is no federal question here that we know of, and so there would be no warrant for the Federal Supreme Court or any federal court to get involved here. This is a case for New York State. New York State got a conviction. Now it’ll go to the appellate division of New York State. Then maybe it’ll go to the Court of Appeals of New York State, but this is a state case. The federal courts and the Supreme Court have no business getting involved in this case, and they won’t. It would be amazing, remarkable, even for this Supreme Court that it’s not very friendly with the liberal or democratic parts of our electorate. It’s not something that will happen,

J. Craig Williams:

And we have GOP Senators in the Courtroom and now coming out warning Judge Marshan against sentencing Trump to prison or even house arrest.

Bennett L. Gershman:

That’s terrible. That’s just so disgraceful. I can’t believe that these individuals are saying what they’re saying. It’s just so astonishing that they would interfere like this where they state criminal proceeding. I don’t see them doing too much interfering with the prosecution of Hunter Biden out in California. They’re very happy about that prosecution, right? There’s no issues there. So this is just a way of trying to bully, intimidate, and it’s just terrible for, I think for the system of justice to be infiltrated like this by stupid knit, which we really don’t know what they’re talking about. They’re just on the bandwagon here with Trump, and they’re doing a terrible, terrible disservice to a system of legal justice, our system of law, a system that requires that the laws be applied fairly impartially, which is what was happening here. They say that Biden ran this prosecution. I mean, that’s ridiculous. Ridiculous. This was a New York state prosecution by the New York State District Attorney. The federal government had nothing at all to do with this case. Everybody knows that, and to suggest otherwise is, I don’t know. You’re living on another planet.

J. Craig Williams:

Do you believe that Mr. Trump received any kind of special treatment during the trial?

Bennett L. Gershman:

Well, it’s possible that some other defendant behaving the way Trump did, making the kind of comments he did about a juror. It’s possible that some other defendant in Trump’s shoes might’ve been held in contempt. I think in that respect, he may have been given a little bit more latitude than some other defendant might’ve been given, but I think that the judge was right down in the middle. He made rulings that were very, very favorable to the defense. He made rulings that were favorable to the prosecution, but he’s right down the middle there. He made objections for the defense they didn’t even make, and I thought his instructions were fair. Nobody complained about them. Nobody was complaining until the verdict came in because Trump and his lawyers felt maybe they could win the case or get some jurors to go along with them. But after they lose, when Trump loses, then something is wrong. If he loses the election, the election is rigged. If he wins the election, it’s a fair election.

That’s their spin, the way they spin the stuff. But you don’t want to see a system of criminal justice that we’ve had for so long, and it’s worked. It’s worked. Look, there have been some issues and mistakes and things like that have happened, but essentially our system is a strong, solid system of justice and you don’t like it to be tampered with and played around with and bullied and undermined the way some of these people out there who are Trump tans and supporters and all that, the things they’re saying, it’s just not helpful to our system, the system of law, which as I was a part of, and I still am as a law professor, I hate to see this because we rely on the rule of law. If the rule of law is destroyed, then we don’t have any stable society anymore.

J. Craig Williams:

No, certainly not. At least according to Shakespeare. Well, professor, it’s time for another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Professor Bennett L. Gershman. We’ve been talking about the sentencing of Mr. Trump is coming up here in July. It just blows my mind. The opening statement. The defense opened up and denied the Stormy Daniels affair, which I presume President Trump or former President Trump had to deny for marital reasons among others, but that gave the prosecution the opportunity to put her on the stand and bring it all to light. What were they thinking?

Bennett L. Gershman:

This is a funny thing because usually the lawyer, in any case, advises the client about what the lawyer feels is the best approach, how to try the case most effectively and possibly within the case. In this case, I got the feeling throughout the trial that Trump’s lawyers were operating on the advice of Trump. Trump ran the show. Trump wanted them to take these approaches, make these claims, make these arguments, and I think they did that because they felt beholden to. They felt that they needed to go along with his wishes, what he wanted them to say and what he wanted ’em to do. So the lawyers really weren’t totally independent. They didn’t do what they felt was the best approach from a legal standpoint.

J. Craig Williams:

Well, the client gets to make the substantive decisions.

Bennett L. Gershman:

Well, that’s tricky, Craig, because clients get the big decision of course, that a client gets to make is whether to testify or not or whether to plead guilty, and Trump didn’t testify, and if he testified, he would’ve been destroyed on the sand. But I think that the fact that they wanted to deny the stormy Daniels fair, the incessant attack for two or three days of Michael Cohen, I think the jury saw beyond that, the jury saw, look, Michael Cohen’s credibility is already destroyed. You don’t have to keep going over it and over and beating a dead horse, and Stormy Daniels was a terrific witness. So if they’re going to deny the affair with Stormy Daniels and the jury sees Stormy Daniels as credible, as dramatic, as strong, I mean, that’s going to hurt the defense terribly. They didn’t have to do that. They could have said, look, stormy Daniels is irrelevant here. They could have focused on the fact that these records were not tampered with regardless of whether there was an affair with Stormy Daniels. The fact is that they wanted to make sure she wouldn’t talk about it, whether she was telling the truth or not. So to go after her the way they did, I think was a big mistake to go after Owen the way they did was a big mistake. Well, they paid for it.

J. Craig Williams:

Well, we just about reached the end of our program, so I’d like to take this opportunity to share your final thoughts and provide your contact information, and I’m curious to address a particular question about where Judge Merchan is at this point. He’s gotten death threats, his family’s been threatened, and he’s got an uncontrollable defendant. What’s your perspective?

Bennett L. Gershman:

Judge Merchan comes out of this, I think, as a hero. I think he tried a tremendously difficult, complex case, maybe the most difficult complex case that any judge has ever been required to administer. I think he did an absolutely flawless job here, and every other people have said the same thing, and for him to be excoriated, vilified and attacked the way he is to me is so shameful. It’s so just disheartening to see that the system break down the way it’s being broken down because of the fact that Trump was convicted. I teach students to become lawyers. I follow the system as close as anybody does, and to see Judge Merchan being attacked and threatened and on and on to me is just so, so heartbreaking and unfair, and I don’t know where it’s going to lead, Craig. I don’t know where this is all going, but I’m not very optimistic about the country and the system of justice, and I think this case highlights or almost symbolizes the state of affairs in our country today. Maybe more than anything yet, this trial has crystallized the division, the deep, angry, and potentially violent division in our country. I hate to say that, but that’s the way I feel.

J. Craig Williams:

Right. Well, the true sentence will be at the bell box this fall.

Bennett L. Gershman:

Exactly.

J. Craig Williams:

Well, professor Gershman, how can our listeners reach out to you if they’d like to discuss this with you further?

Bennett L. Gershman:

Well, okay, I have an email. It’s b [email protected]. I teach at Pace Law School in White Plains, New York, and I’m happy to hear comments and questions. I do the best I can. I am an educator, so if people want to ask me questions, I’m often happy to oblige.

J. Craig Williams:

Great. Well, thank you very much, professor Gershman. It’s been a pleasure having you on the show.

Bennett L. Gershman:

Thank you, Craig. I enjoyed being on the show with you.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. This is a tough one. Typically, you would expect as Professor Gershman said that a white collar defendant would be sentenced to jail, and a weissberg certainly, certainly was sentenced to jail, but it seems that former President Trump got a few breaks during the trial and may continue to get those breaks with an appeal and potentially a sentence including house arrest, which would be interesting because well, presumably he couldn’t leave the White House. Well, that’s it for Craig’s ran on today’s topic. Let that one sink in and let me know what you think, and if you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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