SCOTT DETROW, HOST:
Donald Trump is officially formally a felon, and he's also, of course, about to become president of the United States. Ten days ahead of the inauguration, the one completed criminal case against Trump came to a formal end when New York Judge Juan Merchan sentenced Trump to an unconditional discharge eight months after Trump was found guilty of falsifying business records. That sentence means no jail time or penalties, but the conviction stays on Trump's record. Trump spoke briefly remotely during the hearing.
(SOUNDBITE OF ARCHIVED RECORDING)
DONALD TRUMP: I'm totally innocent. I did nothing wrong.
DETROW: Given the conclusion for now of Trump's various criminal cases, it made sense to get the Trump's Trials podcast team back together and talk it through with NPR senior political editor and correspondent, Domenico Montanaro - hey, Domenico...
DOMENICO MONTANARO, BYLINE: Hey, Scott.
DETROW: ...And University of Baltimore Law Professor Kim Wehle. Hey, Kim.
KIM WEHLE: Hi there.
DETROW: Kim, I want to start with you and just your basic reaction to the sentencing.
WEHLE: Well, I think the sentencing needs to be looked at in connection with the Supreme Court's 5-4 ruling on Thursday basically refusing to stay the process, and they said in that ruling that the unconditional discharge - the trial court's stated intent to impose that unconditional discharge is justification for not postponing it. So I really think when Judge Merchan said that it's the only option, it was the only option, because if Trump had managed to delay the sentencing past inauguration, that immunity ruling would have kicked in, and he would have said, I'm now a sitting president, you can't touch me even for sentencing. And we'd be four years from now and the entire thing in the dustbin of history.
DETROW: Is it fair to say the presidency is stronger and much more immune to the rule of law based on what happened over the last couple years with these various cases and the Supreme Court rulings?
WEHLE: Oh, absolutely. I mean, the Supreme Court essentially amended the United States Constitution this summer in response to January 6, 2021, and Trump's actions on that day. The Constitution does not create immunity for presidents. It creates immunity for members of Congress. So the framers knew how to do that if they wanted to. And in Article 1, which outlines Congress' powers, it says that in case of an impeachment of - and presumably a president, there can be a criminal prosecution.
So the court held the opposite. Essentially, there cannot be a criminal prosecution of official acts, but I don't think anyone would argue that you don't impeach for official acts. So I think the Supreme Court really did enhance the belt and suspenders of the power of the Oval Office, potentially to points that are quite dangerous moving forward, and that was in direct response to Donald Trump's alleged criminal activity.
MONTANARO: I feel like this is a coda or a conclusion to sort of the Watergate era. You know, we didn't really get a lot of conclusion to the constitutional crises that were presented when Richard Nixon was in office because Nixon wound up resigning. And having the Supreme Court weigh in on a lot of this, we've gotten more clarity on the fact that the highest court in the land wants to essentially give far more ability for a president to do kind of almost whatever they want, as long as it's within their official capacity. They've essentially created, ironically, a kind of pseudo king.
DETROW: I want to come back to what all of this means for the second Trump term that begins in less than 10 days in a moment. But Domenico, I just want to ask you about the politics of it at this moment now that the New York case has concluded and the federal cases are, by and large, gone by now and the Georgia case seems all but dead.
You know, we've had several months since the election to think about what happened, to take a look at what the voters were telling us. What do you make of the argument that I feel like picked up steam after Trump won, that all of these cases put together - and really, the New York case specifically - really helped Trump consolidate Republican support and maybe helped him return to the White House?
MONTANARO: Trump obviously was able to consolidate power in a primary, certainly, and he was able to insulate himself to be able to say, these are all, quote-unquote, "witch hunts." These are political prosecutions. And the New York case was the only one that we have a conclusion to - is pretty surprising, frankly.
You know, I don't know that, if none of these cases are brought, that Donald Trump loses the election. I think that we have a very divided country politically, and Trump was certainly able to insulate himself, like I said, and able to get people on the right to say that they think that these things were all politically motivated, anyway. I don't know that that's the reason that he won.
DETROW: Yeah.
MONTANARO: But it certainly helped him through the primary.
DETROW: Kim, I mean, the lawfare (ph) phrase that you had people in Trump's orbit talking about, like, the idea that the justice system was being used as warfare politically against Trump - I do feel like has hardened, and I have heard more and more as Trump returns to power. Regardless of whether or not you feel like that is a fair characterization, which I feel like you don't, the fact that that has really become a mainstream Republican view - what questions does that raise for how Trump's Department of Justice starts acting, again, in fewer than 10 days?
WEHLE: Well, law, at the end of the day, is about incentives and disincentives. We have laws and constraints to disincentivize bad behavior, but those constraints don't mean anything if there's no consequences. So the Supreme Court, through this process, has removed any consequences for committing crimes using official power.
That's the scary stuff, right? It's not the unofficial private power that is going to lead to some real abuses against individuals. It's the power of the Justice Department. It's the power of the FBI, the IRS, the CIA, the military. It's the stuff that Donald Trump will have at his fingertips that no one else on the planet has. That's the power that needs to be disincentivized to abuse, and that's gone. So we really are moving into a new era of American history and American law.
DETROW: Last question to both of you - I was framing the sentencing in New York as the conclusion to all of these legal cases. I think that's true, but there might be one more coda in the next week. There's the possibility that a report from special counsel Jack Smith gets released to the public, at least a redacted version of it. That's being fought over in the courts right now. Don't really know at this point if we're going to see it or not, but I'm going to ask each of you - Kim, what's the biggest question? Is there anything, you think, in that report you want to know more about or you might learn from? Or do you think that will be the - generally the facts that we've been talking about for a year or so at this point?
WEHLE: Well, according to Donald Trump's lawyers, there is more information, which is why he's - they've worked so hard to keep it from the public. But I'm interested in the Mar-a-Lago case. I'm interested in understanding where the classified information went. There were empty folders that the FBI found. Who got it? Is there a threat to national security that was created in that scenario? I don't think those questions have been debated, let alone answered in a meaningful way.
MONTANARO: You know, I'm going to be looking for, politically, what kind of declarations that Jack Smith makes in this that are easily digestible for people, what he believed Trump might have been guilty of and what the evidence was that they were following.
DETROW: Shortly after we taped this conversation, the Department of Justice announced that special counsel Jack Smith had resigned. That was University of Baltimore Law Professor Kim Wehle as well as NPR's Domenico Montanaro. Transcript provided by NPR, Copyright NPR.
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