Transcript: David French Interviews Ken White

Every Tuesday and Friday, Ezra Klein invites you into a conversation about something that matters, like today’s episode, guest-hosted by David French, with Ken White. Listen wherever you get your podcasts.

Transcripts of our episodes are made available as soon as possible. They are not fully edited for grammar or spelling.

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EZRA KLEIN: From New York Times Opinion, this is “The Ezra Klein Show.”

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Hey, it is Ezra. I am on book leave, but our guest this week is my colleague, the Times Opinion columnist David French, whose work I have learned a ton from and who’s just way of comporting himself in public life I’ve often quite admired.

He began his career as a lawyer. He has deployed with the US military. He’s the author of many books, including “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” And I’m excited to see what he does here behind the mic. I hope you enjoy it, too.

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DAVID FRENCH: I met Ken White the first day of law school. We bonded immediately. We were both “Star Trek” nerds. We were both already losing our hair. And we were both fascinated by criminal and constitutional law. Neither of us ever lost that fascination, and Ken went on to become one of the nation’s most respected legal voices on both the criminal justice system and the First Amendment, which is why I wanted to have him on the show today.

As much as I love to talk about free speech, this conversation is going to focus on criminal justice, specifically the four cases against Donald Trump. Most recently, we’ve had the sweeping Georgia indictment regarding Trump’s efforts to overturn the election. Before that, we had the more narrow federal Jan. 6 case, which also focused not just on Jan. 6 but Trump’s efforts to overturn the election.

And before then, we had the Florida case involving the handling of classified documents relating to the national defense. And last, and least, we have the Stormy Daniels hush money case.

Ken has unique insight into all these cases. As a defense attorney and former federal prosecutor, he can dive into both the prosecution and defense strategies in all four cases against Trump. Where are they strong? Where are they weak? Has the prosecution or defense made any mistakes?

If you find Ken insightful, and I know you will, you can hear more from him on his own podcast co-hosted by Josh Barro called “Serious Trouble,” and you can read him at his Substack called “The Popehat Report.”

As always, you can email the show at ezrakleinshow@nytimes.com.

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Ken White, welcome to “The Ezra Klein Show.”

KEN WHITE: Thank you so much for having me, David. It’s great to talk to you.

DAVID FRENCH: Well, I’m really looking forward to this episode. And one of the goals is to help listeners be conversant in the big issues in each one of the criminal cases against Donald Trump. This is not about diving in deep, deep, deep into the details, because each of these cases is going to ultimately end up with a records running in the thousands of pages. There’s going to be twists and turns. This is much more of a broader view.

And we’re going to be ambitious. We’re going to walk through each one of the four major criminal cases against Trump in the reverse order of their filings. So we’re going to start with Georgia, then we’re going to go with Jack Smith Jan. 6 case, then we’ll go with Jack Smith documents case out of Mar-a-Lago, and then we’ll end up with the Bragg indictment out of Manhattan.

And the goal is to hit what are the big issues. What’s the prosecution’s best case? What is the defense’s best case? Which case is most dangerous to Donald Trump and why? So Ken, let’s start with Georgia.

You have a career as a prosecutor — a federal prosecutor. You have a career in defense. You’ve been on both sides here. So I’m going to ask you to put on your both sides hat. And let’s start with Georgia. Talk a bit about how ambitious this case is and why. How is it that prosecutors may arguably have more flexibility here in the Georgia case than maybe in the federal cases?

KEN WHITE: Well, David, the Georgia RICO case is a lot more ambitious and a lot broader because they are very deliberately cobbling together a bunch of different conspiracies into one big charge. So that’s, I guess, what RICO is designed to do, to allow prosecutors to take on organizations and groups of people that are doing diverse things wrong and tie it all into one charge or one set of charges.

So what’s really notable about the Georgia RICO indictment is how it takes a bunch of different — what you would normally call different conspiracies to do different things allegedly wrong in connection with the election — people who are not interacting with each other. When you and I were taking criminal law back in the last millennium, this would be described as different spokes on the wheel.

DAVID FRENCH: Right.

KEN WHITE: People who are completely disconnected from each other all doing illegal things towards a general goal. And that winds up putting together a lot of people who don’t seem like they really go together in terms of what they’re doing and putting together some pretty wildly different conduct, which is why you’re seeing some very strong motions to sever out defendants in Georgia. That’s one way the indictment there is different.

The other way it’s different is that it reflects a very different sensibility about the politics of it. So we’ll talk more about the D.C. indictment by Jack Smith. But that one reflected a sensibility that we’re going to very explicitly say some things Donald Trump was allowed to do and were legitimate, and that’s fine, but these things were illegitimate. The Georgia RICO indictment just leans into everything, throws it all in the same pile, does not make much of an effort to explain or advocate about the distinction between legal politics and illegal fraud.

DAVID FRENCH: One question about the Georgia — so in RICO — you’re somewhat famous online for many reasons. One of them is for loathing RICO. And maybe not necessarily loathing RICO, but loathing overuse of RICO. But there’s some interesting distinctions here between Georgia RICO and federal RICO. Could you walk through some of these differences between the Georgia RICO statutes and the federal RICO statutes, and why the prosecutor here might have thought that RICO was, in fact, an appropriate method for charging this case.

KEN WHITE: So the federal RICO, originally designed to go after organized crime, is very rule-bound, very picky, very complicated. So every crime or cause of action in a civil case has its elements, its building blocks, like the recipe for all the things you have to do to prove this particular crime. The RICO elements are extremely convoluted and lengthy and few cases actually make it.

And it’s so common for civil litigants to bring civil RICO charges as an exclamation point or basically an emoji. This is really serious. It’s RICO, in fact. That many federal judges have special RICO orders. It’s like, so you think it’s RICO. Well, here’s a sheet with 20 questions I have for you that by the time you’re done answering them we’ll show it’s not RICO.

So the federal RICO charges are characterized by how hard it is to prove and how complicated it is. And that’s why you don’t see it in a lot of federal cases because there are so many more flexible and straightforward federal criminal tools.

The Georgia statute is a different story. The Georgia courts have not imposed a lot of this rule-bound elements type of approach. They’ve taken it more like a general conspiracy without a lot of complicated requirements. And a lot of the Georgia Court of Appeals’ opinions considering RICO convictions are frighteningly — ehh, kind of sort of sounds like what the statute is about. Not imposing a lot of technical requirements on it. So that makes it very appealing as a super conspiracy statute.

As a result, it is used astoundingly broadly in Georgia. RICO is used in Georgia the way conspiracy is used in many other locations. And it’s used in a way that I think, in my view, is intentional to make cases that are functionally impossible to defend. So you have cases that go on for months and months and months. You know how expensive litigation is, David, as well as anybody. And very few people can afford lawyers for months and months and months, let alone also not working because you’re in trial.

So you have things like this trial of the rapper Young Thug and some people accused of being in a gang with him. It’s been going on for eight months. It doesn’t even have a jury picked yet. The case where Fulton County D.A. Fani Willis went after an education cheating scandal. That was treated as a RICO. And those trials — the one that went to trial went on for six or seven months. So it allows the prosecutors to put together big functionally impossible to defend cases.

DAVID FRENCH: So first, I want to ask you what you think about the wisdom of this charging approach in this case. Because one thing I think listeners need to know is that often prosecutors overcharge as a deliberate strategy. That they’re going to — as I’ve used this illustration before — they throw charges in an indictment like you might throw croutons on a salad —

— which then creates this incredible list of charges with lengthy prison sentences attached to convictions. And essentially, you take a defendant who may not have an enormous number of resources, as you noted, and you put them in this incredibly difficult box, which is if you go to trial on this monster of an indictment, you cannot even begin to imagine the amount of jail time you could face.

Or I have this little plea deal for you here that’s a lot better. That you’re not going to face nearly the kind of prison terms that you could potentially face with a jury. And we can just get all this settled and deal with this and move on to the next case. And that kind of approach isn’t applicable here for Trump — maybe for the others, but for Trump that’s not applicable. So what do you think of the wisdom of this charging approach?

KEN WHITE: I think there is definitely an element of politics here. So the D.A. of Fulton County is an elected position. There are political overtones to the whole thing. It’s an ambitious D.A. Those are the circumstances in which big, ambitious cases get brought. I think that this is designed to be a case that is functionally impossible to be defended the way it’s charged.

You simply can’t take 19 aggressive people with aggressive lawyers to trial in a giant case at once. It would go for years. Particularly when you’ve got personalities like Rudy Giuliani and Donald Trump in the same indictment, that’s just going to make it go even more circus-like. And the judge presiding over this has already basically pointed this out.

So I think it’s a great way — great is the wrong word — effective way for a prosecutor to coerce a lot of the smaller players in the case to plead guilty or even to cooperate, to flip. I think it’s a great way to get on the scoreboard and to bring attention to the charges and eventually wind up with something less. I don’t know if it’s like — if your purpose is to identify what Donald Trump did wrong and come up with just result, if it’s necessarily the right way. But this is a very typical state prosecutor tactic.

DAVID FRENCH: Do you think there’s an overreach here?

KEN WHITE: Well, this is maybe partially a matter of style or taste. But I prefer the approach that Jack Smith took in D.C., to be very explicit about the things that Donald Trump did that were permissible and legal and part of legitimate politics and litigation, and then leaning into explaining very much what wasn’t and identifying, calling those things out, as opposed to the approach Fani Willis took, which is much more throw it all in there and call out everything and really not make an effort to avoid the appearance of attacking protected speech or protected politics.

So I think because all of this — it’s not a normal criminal case. This has historic implications. It’s going to have a greatly exaggerated impact on the way Americans understand the legal system and criminal justice system and that type of thing. And so to go this kitchen sink approach, to me, I think, risks diminishing the credibility, the whole enterprise of holding Donald Trump accountable for things that he did that were illegal.

DAVID FRENCH: Now, there’s another aspect of this case that I think is interesting, and that is — we’ve talked about the RICO aspect, but there’s a lot of charges that are related to specific Georgia statutes that prohibit lying to public officials. And these Georgia statutes are different from the federal statutes that Jack Smith charged on Jan. 6.

And it strikes me, Ken — and I’d love your thoughts on this — that these statutes are easier to prosecute, because what they’re, essentially, doing — if you look at some of these statutes, they, essentially, say this — if I lie to you — let’s say you’re a public official, and I lie to you about a material fact, and it’s within your jurisdiction on a matter within your jurisdiction. So if you’re the Secretary of State and I’m lying to you about voter fraud, and I’m talking to you in your capacity of Secretary of State on a matter within your jurisdiction. I’ve committed a crime. I’ve committed a crime.

I don’t have to show that I had an intent, for example, to deprive someone of their civil rights or an intent to defraud the federal government. It’s just the lying about the material fact to a public official within the jurisdiction — crime. That seems to be, in my view, the absolute strongest element of this indictment.

KEN WHITE: Well, sure. It’s probably also the element that carries the lowest possible sentence —

DAVID FRENCH: Right.

KEN WHITE: — of all the different charges, and rightly so, because we shouldn’t heavily punish things that don’t actually have a bad impact. I think you’re right, and I think that the Georgia statute seems to have a very loose concept of materiality, that is, how much does your lie matter. And in both cases, it seems to be is the lie the sort of thing that could hypothetically matter in a scenario we can imagine, which is pretty easy to prove.

So yeah, a lot of the smaller things, the lesser charges are there that I think are going to be easier to prove, even given how loosey-goosey Georgia RICO is. That’s one of the reasons that prosecutors throw those in a lot of the time is you’re looking for the jury to be saying, OK, well, this big one’s complicated, let’s just compromise by convicting on these easy ones and throwing out the big one or something like that. And that’s strategically why they do it a lot of the time.

DAVID FRENCH: So let’s talk about this word that has been mentioned an enormous amount as soon as the Jan. 6 prosecution started — intent. Intent.

KEN WHITE: Yes.

DAVID FRENCH: I think I’ve seen more internet arguments about intent in the last two months than I’d seen in the preceding 20 years. But let’s talk about the intent element in Georgia. And then by golly, we’re going to talk about the intent element in the federal case.

So if you’re trying to describe what is the intent that prosecutors are going to have to show in Georgia, how would you describe it, both for the more simple statute that we just outlined and for the RICO — and bigger RICO and conspiracy charges. And then we’ll table for a minute exactly the intent in the Jack Smith Jan. 6 cases. But what’s a brief summary of the intent element here in Georgia?

KEN WHITE: So it really varies charge to charge. On the false statement type of charges, you’ve got just a requirement that you knowingly lie. So you have to say something and know it’s a lie. You don’t necessarily have to have an intent that’s fraudulent, an intent to deceive. You just have to know that the thing you’re saying is untrue.

The RICO and conspiracy and some of the other things that sound more like obstruction are going to require some sort of specific wrongful intent, an agreement to violate the law, an agreement to do something wrong. So generally, the more sophisticated the crime, usually the more sophisticated the mental state.

So some of the crimes they’re just going to have to show people knew they were lying. Others are going to have to show that they had fraudulent intent — the intent to deceive or defraud. And some they’re going to have to show that they intentionally joined an agreement to do something against the law, that they agreed to commit a crime. So it depends on the particular charge there.

DAVID FRENCH: So if we go, let’s say, the simple lying charge, you don’t have to prove that Trump knew he lost. Even if he genuinely thought he’d won, if he genuinely thought that Georgia was his, but if he told a lie in making that case, he can be convicted. Whereas, the more broader the conspiracy in the RICO charges, you’re going to have to show some intent beyond the simple lie.

KEN WHITE: Right. And this is something where I think that all of us who are in the business of being pundits and talking about all this have probably overcomplicated a little bit. We’ve been talking about for years how hard it is to prove intent or knowledge in Donald Trump’s case because of how he processes facts, and how he views things and how he doesn’t really see lie from truth or distinguish it the way that we mortals do.

But it’s easy to overcomplicate this. You don’t have to show that he knew he lost anything. You only have to show, even if he believed he won, that he pursued that goal through lies or through fraudulent means. That he tried to get people to violate their oaths of office, that he tried to get people to do things that were illegal, or that he lied to them in the pursuit of that. That’s much easier.

It’s easy because there’s a big difference between the public narrative of what happened after the election and what these charges actually say. So even the Georgia indictment, which is much more ambitious and sweeping and considerably less subtle, concedes that the point is the illegal way he went about it. The crime is not believing against all evidence that he won. The crime is pursuing that belief through fraud and lies.

DAVID FRENCH: Right. There are two things that have kind of driven me crazy in the public conversation. One is the argument we don’t have to prove intent, because I’m thinking, Ken, just read the statutes. Now, what intent you have to prove varies from statute to statute, what do you have to show. That’s one that drives me crazy.

But another one is, well, oh, gosh, if we have to prove intent, then how can you possibly convict him? But intent elements are extremely common in criminal charges and prosecutors prove intent all the time. This is not a magic “get out of jail” card to say, no, I didn’t mean it, or I didn’t mean to tell a lie, you have to acquit me. Am I right in framing it like that or am I missing something?

KEN WHITE: You are. A lot of what this reflects is this public sensibility that Trump is so norm-shattering and outside of normal political practices that the normal doesn’t apply and that he’s just — there’s also this perception that he’s always skated and he’s going to skate again no matter what.

But I think we’re starting to see that just plodding methodical, putting on your case against him can work. We saw that in E. Jean Carroll’s defamation case. We’re seeing it in other instances. And yes, all the time prosecutors prove, beyond a reasonable doubt, intent when it’s disputed.

The most common bread and butter federal charges of wire fraud, mail fraud require you to prove there’s a fraudulent scheme, that you intended to do a fraudulent scheme. And where Trump is his own worst enemy is his tendency to talk a lot and say things a lot, which are now being brought to bear very effectively to help prove intent.

So when you’re talking about how do you prove that someone intended to do something, that they had fraudulent intent, you do it the same way you decide whether your teenager is lying to you, right? You analyze what they say to you. And in the case of Trump, if you’ve got him saying something to Mike Pence, like the problem is you’re too honest, then that’s exactly the sort of thing you lead with to say, see, he knows that what he’s doing is dishonest.

So there’s some things in the past that we’ve talked about that people wanted him to be prosecuted for, particularly during the Robert Mueller era, where the intent was going to be hard to do. But these things, he’s talked his way into a lot of the evidence against him.

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DAVID FRENCH: Let’s move on to Jack Smith. It’s a good logical next move. How would you, in a nutshell, describe the distinction? What’s different about the Jack Smith case versus the Fani Willis case?

KEN WHITE: The Jack Smith case in D.C. is brought by an experienced federal prosecutor for federal court, and it shows. Federal court is very different than state court. Much more formal, generally. Prosecutors can still get away with a remarkable amount, but not as much as they can in state court.

Federal judges are tougher taskmasters. To slightly overgeneralize, the court is more concerned with being rulebound and with protecting constitutional rights. And it’s probably the forum you’d often rather be in as a defendant. I’d certainly rather be defending the D.C. case than the Georgia case.

So Smith seems to be both more concerned with the fact that he’s in federal court, and he can’t get away with as much, and he has to be more careful with these distinctions. He also seems to be more explicitly concerned with the eyes of history being upon him and that type of thing, with making something that is more overtly avoiding the appearance of being deliberately political. Even though, frankly, I think everyone who thinks it’s political is going to no matter how you frame it. And everyone who thinks it’s not is going to think that no matter how you frame it.

So it’s narrower. It’s more specific. And there you’ve got this general conspiracy to defraud the United States. This is the plain vanilla conspiracy statute used all the time. But there’s a clause in there — instead of just conspiring to violate a federal law, there’s a clause for conspiring to defraud the United States and to cheat the US. And that’s what he’s going with here. He’s going with a conspiracy to obstruct and actual obstruction and a conspiracy against civil rights.

Some of these people expressed surprise when Smith came out with them, thinking this is very aggressive and forward in legal theory. And really, historically, it’s not. There are arguments on all of these for why the law is wrong. But the law for the last century has fairly clearly shown that these are all theories that work.

That you can defraud the United States by interfering with one of its proceedings by deceit. That you can obstruct an official proceeding by submitting fake things to it and things like that. And that you can have a conspiracy against rights through election fraud by trying to fraudulently interfere with the counting or processing of votes. You can argue that all those cases are wrong, that they interpret the statutes the wrong way. But I don’t think you can seriously argue there isn’t legal precedent for all these theories.

DAVID FRENCH: Yeah, I think that’s a very key distinction. Because the arguments that I’ve seen from those who are defending Trump, if they’re honest arguments, what they’re saying is, I acknowledge the precedent is against us, but the precedent is bad precedent, and this current court would not, in fact, apply the law in the same way. That seems to be the core of the argument. But the fact remains that, as of this moment, the precedent does indicate that each one of these charges is solidly within historical practice.

KEN WHITE: You mentioned this whole thing about how we think the Supreme Court would go being very central to the theories of the law of the critics of the D.C. indictment.

DAVID FRENCH: Right.

KEN WHITE: And certainly this is a conservative court. It has overturned a lot of precedents. I do not see this court as being super eager to help Donald Trump in these sorts of situations. This court did not do the things that Trump partisans hoped it would in connection with the 2020 election or any of the subsequent litigation.

And the kinds of theories people are, I would call it, wish-casting, that the court will step in and narrow some of this federal criminal law, is not actually the way this court is generally working. They’ve stuck their neck out for some things that are Trump policy goals, but not so much for Trump as a litigant. I think that the faith that they’re going to do that is misplaced.

DAVID FRENCH: Before we leave the Jan. 6 cases, let’s talk a little bit about this attempt to remove some of these cases from state court to federal court. You very helpfully outlined some of the differences in practice in federal court and why defendants often like to be in federal court versus state court. But let’s walk through this removal argument in Georgia.

KEN WHITE: Sure. Well, removal is bringing a case that was filed in state court into federal court. And criminal removal, there’s a statute. And its origins are uncertain. Even the cases that talk about it say we’re not entirely sure what the point of this is, but it seems to be there wants to be some sort of bulwark to keep the state from interfering with federal business through criminal prosecutions.

So there’s a statute that says a federal official charged with a crime in state court can remove it to federal court, and they’ll have a burden to keep it there of showing that they were a federal official, that the things they are charged with are of or relating to the color of their office to their official business, and that they have a colorable, that is, plausible, federal defense — a defense under federal law.

And so Mark Meadows is the first one really to have his effort in this case assessed by the federal judge who’s looking at it. And Judge Jones has got something of a wide open field here. A lot of these issues have not been thoroughly litigated. And he has almost like a philosophical question. It’s like, well, what is the heart of the Georgia case? What is it that has to be related to your office?

And where he comes out is the heart of the Georgia case is the allegation of a RICO conspiracy, an agreement to violate the law. Particular pieces of evidence that aren’t themselves crimes are not the heart of the case. And so therefore, even if one or two of those are things that arguably are related to Mark Meadows’ color of office, that doesn’t make the whole thing related to his color of office. He’s not supposed to be doing political things. That’s not his function, and so on.

This could go either way in front of the 11th Circuit. It could even go either way in front of the United States Supreme Court. You’ve got all these competing interests. You’ve got these ideas of federalism, or generally, federal courts don’t interfere with state courts, particularly in criminal cases. On the other hand, you’ve got the Supremacy Clause and the idea that the federal law reigns supreme. And then you throw all the politics on top of that. And I have no idea where this is going to come out.

DAVID FRENCH: And one thing that I think is important to emphasize is even though if this case is successful removed, it’s still going to be prosecuted under the Georgia state statutes and under Georgia state precedent. So all of the Georgia state laws that are at issue in the case are still going to be the laws at issue in the case.

Now, there are going to be differences in the rules of the federal court, and there’s going to be differences in the jury pool that you draw in the federal court. But they’re still prosecuting these state criminal offenses in that federal court, even if it’s removed.

KEN WHITE: They are unless the judge determines that there’s a federal defense that precludes it. So the precedent seems to suggest that if the judge determines that there’s a federal immunity issue and holds a hearing and resolves disputed facts and that type of thing, then that could be, in effect, dismissing the case. But again, that’s a heavy lift for Mark Meadows and the others here, because it’s hard to explain why this stuff is actually related to their job and why it’s necessary and proper.

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DAVID FRENCH: Let’s move on from Jan. 6 to documents. And I’ll set it up like this. It’s really interesting to me, if you’ve seen all of the back and forth of all of the various legal experts weighing in on all of the aspects of this case, even though there’s a lot of disagreement, I’ve seen some general agreement that goes like this.

The Manhattan case involving the Stormy Daniels hush money payments is the weakest case. A lot of fights over whether the Georgia case or the Jack Smith Jan. 6 case is more dangerous to Trump, where I kind of literally go back and forth on that in my own mind as to which one is the more dangerous case for Trump.

And then there’s this consensus where you bring up the documents case and they go, oh, yeah, that one’s the strongest case. And it’s really hard to find somebody who would say anything other than that. Where do you stand on this consensus that the documents case is in a class by itself?

KEN WHITE: It is in a class by itself because it’s a very different set of facts and because Donald Trump, in an absolutely classic client form, has absolutely sunk himself with his mouth by repeatedly saying things that undermine any potential defense he has there — saying and doing things. So he is the classic client who cannot keep his mouth shut, who keeps saying things that lock him into stories, that preclude defenses, that admit things, stuff like that.

On the other hand, the countervailing factor is that it is in Florida with a different jury pool, where the hope of at least getting one juror to hang the jury seems to be much more plausible. And in Judge Aileen Cannon, he has a judge who has previously been willing to really go out on a limb for him to a notable extent. Someone he appointed. Someone whose decisions in the case where she basically shut down the investigation after the search warrant of Mar-a-Lago were very widely seen as being without sound basis in law. And draw from that what you will.

So those things protect him there. But in terms of which case I think is the simplest and strongest, the combo, that probably is the documents case. There is widespread consensus that his defenses, that he can declassify things with his mind, or that they’re automatically declassified when he takes them, that those are nonsense. They are not taken very seriously except by the most partisan commentators.

And the record of the things he said in front of other people, his braggadocio, his throwing around of papers, that type of thing is just great intent evidence. So I think that case is extremely dangerous to him. And really what’s standing between him and probable conviction in that one is a Florida jury and Judge Aileen Cannon.

DAVID FRENCH: Let’s talk about the judge for a minute. You were very polite in your description of — I believe you said no sound basis. At the risk of using another legal term of art, I would say that her original decision that essentially halted the parts of the Mar-a-Lago investigation was either bonkers town or in the suburbs of bonkers town. It was so bad. And in fact, it was sternly rebuked by the Court of Appeals.

KEN WHITE: Yeah. It was functionally lawless.

And the advocacy that led to it by Trump’s attorneys was so terrible that it was that much more notable. The arguments were terrible. And then the way she accepted them, and even did some other things they hadn’t even asked for, were terrible.

And federal courts of appeal are not very emotive usually. It’s bad news when they are. But you can read between the lines, the tone of an opinion. And the opinion overturning her was fairly brutal in its explicitness. So this is a judge who has basically gone way out on her own doing crazy things for Trump.

DAVID FRENCH: You’ve practiced in front of a lot of different district judges. I’ve practiced in front of a lot of different district judges. And they’ll have varying temperaments.

But one thing that I have seen is that if you’re a district judge who’s operating within the broad norms of the profession, once a Court of Appeals has absolutely smacked one of your rulings down, and done so, reading between the lines, in a way that is almost screaming in all caps, in my experiences, so long as the district judge is still within those broad norms of the legal profession, in some ways they’re going to be more careful, because at this point, they’re in almost a legacy moment here.

And so you saw recently Judge Cannon just basically granted the prosecution’s protective order motion in the case, appears to be adopting a more careful approach to this. How much do you think that that really brutal Court of Appeals smackdown in the document subpoena and the search litigation — realistically, can we expect a more careful Judge Cannon as a result of that judicial rebuke?

KEN WHITE: I think there’s a number of factors that lead to a more careful Judge Cannon. First of all, there’s just experience. She has — and we can probably share this feeling — preposterously young to be a federal judge. I think she’s only 42. And that’s very young to wield that sort of power. And a lot of the time when you see a person like that becoming a federal judge, you see some sort of stumbling around at first.

When you see corporate lawyers or other lawyers whose practice is not so much trial practice becoming a federal judge, you see an acclimation period. But often, they become very good judges, because they learn this stuff and they learn it as a judge, and they become very careful about it.

Also, there’s a community of judges and lawyers that is different than the political community. And so the experience of being a federal judge appears to be, broadly speaking, moderating. It tends to move people towards that more professional consensus middle in terms of things. And part of that is your reputation and how the Court of Appeal treats you and that type of thing. But part of it is the community that you’re part of — the judges you interact with, you go to for advice, that type of thing.

Also, judges are human. And a lot of the time if a party leads a judge into error and they get smacked down, judges will tend to resent that party a little bit. They will often start saying, well, the last time I listened to you, the 11th Circuit basically said, in judicial terms, I was being an idiot. So why should I listen to you?

So I think all those factors will tend to move her towards the center. That said, a lot of my commentary about cases and stuff is saying this thing you think is extraordinary is not extraordinary. This judge yelling at the prosecution is not in the tank for the defense. That’s just the way judges are. This judge doing this is actually doing what judges all the time. It’s not such a big deal, calm down.

I can’t really say that about Judge Cannon based on that earlier case. That was remarkable, totally outside of norms to extent that makes me very concerned about the way she’s going to approach the rest of the case. And it would be difficult to overstate how easy it is for a federal judge to tank a case if they want to.

DAVID FRENCH: Yeah, that’s one thing I’ve tried to communicate to people about that initial Judge Cannon ruling. I was gobsmacked when I read it.

KEN WHITE: Right.

DAVID FRENCH: I mean, literally just absolutely gobsmacked. And I’m also, much like you Ken, I spend a lot of time saying, whoa, hold on, calm down, everything is not running out of control. What you’re watching is the system in process, and this is what the system looks like. We’re within norms. But that ruling was well outside of legal norms.

KEN WHITE: Yes.

DAVID FRENCH: Now, she has not issued rulings since then that have been outside norms. The trial date that she set seems pretty reasonable to me. The protective order that she just outlined seems pretty reasonable to me. So since then, she seems to have pulled in a bit. But you’re absolutely correct. We share the same view.

But let me do a little detour here, because when you’re talking about judicial norms, the Trump team has filed a motion for the judge in the Jan. 6 documents case to recuse herself based on statements that she made in other Jan. 6 cases. And I know you’ve looked at this. This is the federal Jan. 6 case. What are your thoughts on the Trump team’s recusal motion and what the judge had said in that case?

KEN WHITE: I don’t think it will succeed or that it should. And I think it illustrates the difference between what people think the rules for recusal are and what they actually are. Federal recusal is extremely narrow. And in general, there are only two ways you get there.

One way is where the judge’s comments are simply so historically extreme and out of bounds, that no one can possibly take them seriously as a neutral judge. The other is if it’s from an extrajudicial source, like the defendant is her next door neighbor and they hate them, that type of thing — from extrajudicial reasons.

Here, Judge Chutkan, in some of the Jan. 6 cases where defendants were saying, basically, well, I was there because of Trump, made comments to the effect of, well, the person who inspired you to do this stuff isn’t in jail. Maybe he should be. So you can certainly see why that seems to show some prejudging of Donald Trump. And you could imagine a system where you argue that makes her ineligible because she’s expressed that.

But it’s not extrajudicial. So she’s come to that conclusion based on the evidence before her in court in related cases. And that generally is not a basis for recusal. And that’s why a judge can hear a bunch of related cases without having to recuse themselves.

The thing is, recusal is a doctrine largely developed by judges and administered by judges. And they understand each other. And judges — how can I put this? They run their mouth a lot.

And you can’t always consume what they say on a explicit or literal any more than you can with Trump. Federal judges emote as much as one’s the proverbial uncle at Thanksgiving. And judges understand that. And so they don’t take each any more seriously with that type of rhetoric.

They don’t see it as extreme. They see it as just you got a black robe. You’re sitting up there. Everyone’s listening to you. You’re going to say what’s on your mind. And that’s the way it comes out.

DAVID FRENCH: Yeah. [LAUGHS]: It is a unique experience. And lawyers who are listening to this will relate to the experience of being on the receiving end of a judge who is venting. And it’s really unlike almost any other venting experience that you’ll ever endure, because you really are limited in your ability, as a practical matter, to vent back.

KEN WHITE: But you know what, once you understand that’s just kind of the way they are, you get used to it. It’s not such a big deal anymore.

DAVID FRENCH: Yeah, exactly. All right, well, let’s end this with a discussion of the first indictment brought against Trump, and that’s the Bragg state indictment — state court indictment related to the Stormy Daniels hush money payments. And again, it is really remarkable, with all of the various competing legal arguments in a polarized nation, there is an absolute consensus that this is the weakest of the cases.

KEN WHITE: And rightly so.

DAVID FRENCH: Right. And why is that?

KEN WHITE: So, I mean, there are a lot of rarely enforced, scarily flexible laws out there that are rarely charged but could be if a prosecutor just has it in for you and wants to find some way to do it. And this falsifying business records charge in New York seems to be such a thing. And the case is characterized by the way they went about it.

They did these tons and tons of counts, just gratuitously. What is it? 34 counts of falsifying business records for the concept that false notations were made in various types of check ledgers and things like that, indicating that money going to Michael Cohen was for legal services as opposed to a way to reimburse hush money to an adult actress. And in addition to being an — and you can bleep this if it’s inappropriate — widely considered to be chickenshit —

— which it kind of is. It’s a petty thing that they’ve made into a huge thing and put 34 counts of. I think it’s extraordinarily hard to prove Trump’s individual understanding or knowledge of it. Trump does not strike me as a generally accepted accounting principles guy.

The thought that he personally directed or was involved in personally directing the way payments would be classified, and did so with fraudulent intent, seems like a much bigger lift than saying that he lied to the Georgia Attorney General or something like that — Secretary of State or something like that. It’s complicated. It’s nitpicky. It’s not the sort of thing you would really see him getting his hands dirty with. It’s not the sort of thing you would even necessarily see him as understanding very well.

So I think that it’s a flailing around, trying to find a theory on which they could go after him, because they’re so mad at him. They put so many resources in trying to get him. So they find this, OK, well, he treated this hush money as something that it actually wasn’t and let’s say that.

So it kind of comes off as desperate to me. Certainly when it seemed, at the time, as if it might be the only criminal consequences of his long pattern of illegal behavior, it was very disappointing. Now I think it’s more embarrassing when you compare it to the other cases.

DAVID FRENCH: Yeah, and just to nail down the specifics, it really depends on a two-step process. Because there’s the step one, which is did he falsify business records, which there’s a pretty strong case that business records — and I’m going to use passive voice here — were falsified. But that’s a misdemeanor.

KEN WHITE: Right.

DAVID FRENCH: And not only is it just a misdemeanor, it’s also a misdemeanor that’s probably time-barred. It’s probably — we’re probably past the statute of limitations. So to make this the more serious case, you have to show that these business records were falsified in furtherance of the commission of another crime.

KEN WHITE: Right.

DAVID FRENCH: And so you have to show that there’s another crime in play here, and that isn’t really specified with that much clarity, at least in the initial charging documents. And that’s where they’re just going to have a problem — a proof problem in that case regarding this other extra step that is the one that, A, turns it from a misdemeanor into a felony, and B, at least stabs at dealing with some of the statutes of limitations issues.

KEN WHITE: Well, the statute of limitations, as I understand it, David, that their theory is that, basically, there’s a New York statute where if you’re out of state consistently for a period of time, the statute’s tolled. And so he was in Washington and Mar-a-Lago. And I think that’s their theory. So from what I’ve heard, generally, that’s not considered to be as better defense.

But yeah, I agree with you that the extra step of making it into a felony by having to connect it to some other crime is a problem. Apparently, they’re thinking maybe it’s campaign finance fraud, which has even more exacting intent standards. Often, you have to know you’re violating the law there. Good luck proving that.

Or it might be under this weird New York statute about corrupting an election or whatever it is. Those are big lifts. But I just, to the very basic idea, I think it’s very hard to show that he is personally directing how this is going to be treated or that he cares.

DAVID FRENCH: Right.

KEN WHITE: Maybe they have Michael Cohen testifying. He’s going to be a terrible witness, his rehabilitation tour notwithstanding. Maybe they’ve got some of the accountants putting Trump in there. But ehh, I mean, again, you’ve got a New York jury. So maybe they’re more adverse to Trump. You’ve got state court. More loosey-goosey with the rules. But still, it’s no question it’s the weakest.

DAVID FRENCH: We’ve talked about all of these cases. We have at least three trial dates right now dating before the election. And so let’s just wind up with a brief discussion of the trial dates.

KEN WHITE: Sure.

DAVID FRENCH: How many of these trial dates do you think will stick? In your experience, when you see an initial trial date set, like we have seen in some of these cases, how often do these initial trial dates stick? Is it actually the case that we’ll have multiple criminal cases of Donald Trump in the height of the campaign? Just transparently, and where I’m coming from this, I have been dubious that we will have all of these things unfold in 2024.

KEN WHITE: I am also dubious they will all unfold.

DAVID FRENCH: Right.

KEN WHITE: I think, given the way the judge’s attitude, there’s an excellent chance that at least one will. So Judge Chutkan in D.C. and Judge Cannon in Florida have announced trial dates that are, in my view, pretty aggressive — much more aggressive than I would expect for white collar cases of this complexity.

So it is very routine for white collar criminal cases to take a very long time to go to trial. And the excuse is usually, but Your Honor, there’s millions of documents, and so forth. But these are complex cases with tons of witnesses and players. So the relatively early in 2024 dates we’ve gotten in those two federal cases are aggressive and I think suggest that those judges are not going to let them delay forever.

Some federal judges are big believers in what’s called the rocket docket. I got to keep my docket moving, so I don’t care what you need or what you want, you’re going to trial. And that’s often used basically to coerce people and to settle civil cases or plead guilty in criminal cases. But that suggests to me that the federal cases are more likely to move forward. I’d say particularly the D.C. one, given Judge Chutkan’s attitude there.

But in Georgia, it may be that these get split up into a bunch of different little cases. I think some of the ones related to Trump are going to go to trial before the election. I’m not sure if Trump’s himself will. And that’s what we’re going to see once the judge starts ruling on his own motions, as opposed to his co-defendants’ motions, where that’s likely to go. But I think it is strongly likely that at least one of these criminal cases is going to go to trial before the election, maybe two or three.

DAVID FRENCH: It’s also possible that all four are booted until after the election, which would present, in a very stark way, this idea that part of what’s at issue in the election is ultimately whether he, as a practical matter, gets tried at all, at least in the next term. As the head of the executive branch, which includes the D.O.J., if he wins, he could direct the DOJ to drop all the cases against him. Just wipe these away.

KEN WHITE: Or he could pardon himself.

DAVID FRENCH: Right.

KEN WHITE: Which I suspect would be his move. There’s controversy over whether that’s legal, but it’s almost certainly a political dispute that’s not justiciable by the courts. So yeah, that’s very stark. He can’t, of course, pardon himself on the state claims. But he could get rid of the federal ones. And I think the federal ones are probably the two most dangerous cases for him.

DAVID FRENCH: All right, Ken, at the ending of every Ezra Klein Show, there are three book recommendations that we ask our guests to make. So what three books are you recommending to listeners today?

KEN WHITE: So I’m recommending three very different books. One is “Pax”, P-A-X, by Tom Holland. Not Spiderman. The British popular historian writing about the peak of the Roman Empire. And he’s got a fantastic narrative voice. And he’s one of those historians who really has a way to make his enthusiasm for the subject matter and the period jump off the page.

The next one is “The Shadow Docket” by Professor Steve Vladeck. I’m sure you’ve read this one, David. And this is the one about how the Supreme Court’s motion docket, how ruling on special emergency motions, the difference it can make in the law in ways that are not immediately apparent to us. And these big changes that are made kind of behind the scenes in a way that are not consumed the same way as opinions in cases.

And then finally, the third, one of my favorite authors, James Ellroy, one of the most pessimistic and darkest authors about America and what it’s like. His new book is “The Enchanters.” He’s got this infectiously pessimistic, down on everything voice. He’s kind of like — he’s to “Dragnet” and the notion of cops, the way “Game of Thrones” is to J.R.R. Tolkien. He’s like the seedy side of it all exposed. He uses language in a really interesting way. And I can’t resist him.

DAVID FRENCH: Thank you so much for joining “The Ezra Klein Show.” Thanks for sharing your expertise. And especially, from my standpoint, it’s great to see you, and it’s great to chat with you. So thanks for joining me.

KEN WHITE: It’s good to see you again, too, David. It’s like the fall of 1991 all over again and first learning some of this stuff.

DAVID FRENCH: All over again. Oh, those glorious days when we had hair on our heads.

KEN WHITE: Exactly. [LAUGHS]

DAVID FRENCH: Thank you, Ken.

KEN WHITE: Thank you.

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DAVID FRENCH: This episode of “The Ezra Klein Show” was produced by Rollin Hu. Fact-checking by Michelle Harris with Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld. Our senior editor is Annie-Rose Strasser. The show’s production team also includes Emefa Agawu and Kristin Lin. Original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser.

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