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DA Alvin Bragg: The bedrock, the basis for business integrity and a well-functioning business marketplace is true and accurate record keeping. That's the charges brought here, falsifying New York State business records.

Brian Lehrer: DA Alvin Bragg there from yesterday's news conference. As we consider the charges against the former president, let's not forget the political context. April 4th was not January 6th around Donald Trump in New York, and it was in 2016 for his party yesterday in Wisconsin. The crowd did not show up to protest Trump's arrest behind cheerleader-in-chief Marjorie Taylor Greene. The crowd did show up to vote in Wisconsin to protect abortion rights and reject Republican gerrymandering by electing a liberal Supreme Court justice yesterday in a state Trump won in 2016 in a very closely watched State Supreme Court election in advance of next year's presidential.

With us now, Andrea Bernstein, who covers democracy for ProPublica and Trump legal matters for NPR. She is the author of the book, American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power and co-hosted the podcasts Will Be Wild and WNYC's Trump, Inc. She was in the courtroom for yesterday's proceedings where video cameras and microphones were not allowed. Andrea, always good to talk. Welcome back to WNYC.

Andrea Bernstein: Great to speak with you, Brian.

Brian Lehrer: You were down in the courthouse. What was it like?

Andrea Bernstein: Those of your listeners who have been to Lower Manhattan in some ways, it was an ordinary day in Lower Manhattan. The cars kept going through, bikes kept riding on the bike lane, tourists came through snapping pictures, but superimposed on that was a hoard of international media. The only way that I can liken it to anything is to an inauguration in terms of the number of media tents, vans, people from all over the world around, and some few 100 maybe protesters making quite a bit of noise, some of which wafted up into the courtroom.

Inside the courthouse, which took what felt like days to get into, and in some ways was, it was the same old New York criminal courthouse that I've now spent quite a bit of time in, in legal matters involving the former president and his company. On the other hand, when you got into the courtroom, it was totally different. There were two lines of court officers on either side of the center aisle basically looking at us. We were not allowed to take out any electronic equipment, no laptops that we previously had, just pen and paper. Secret Service posted all around.

When the former president walked in, here was someone who was a former president, not in handcuffs as white-collar defendants usually are, but on the other hand, it was just another day in Manhattan criminal court where a defendant is read the charges against him. We've just passed another threshold with Trump. Things that seemed unthinkable, completely out of the norm, have now been a thing that actually happens in the criminal courthouse in Manhattan.

Brian Lehrer: People have said Trump was sullen. Our earlier guest, the former assistant DA in Manhattan, said he had that look of a lot of people who were brought to court, charged criminally for the first time, it was very sobering. She saw that in his face. Other people have said Trump was scowling at the DA and the judge, trying to look menacing like they were the ones on trial. How would you describe that body language interaction from all sides?

Andrea Bernstein: It was interesting. I was literally comparing notes with Ilya Marritz who was also in the courthouse but who viewed it all from a different angle because he was in an overflow room, so he could actually see people's faces which I could not see. I could only see the backs of their heads. The closest I had was when--

Brian Lehrer: For people who don't know, you're co-host on the Will Be Wild and Trump, Inc podcasts. Go ahead.

Andrea Bernstein: Yes, exactly. Who also covers these cases with me for NPR. We both had written down Trump shuffled into the courtroom. He looked serious to grim. Was he scowling? Well, I think people have seen him on the stage. His face is held tightly. Is that a scowl? It's a very serious look. Ilya noted to me that one of his defense attorneys, Susan Necheles, is not a tall person, but Trump, who was quite tall, did not look tall sitting at that defense table.

I think most striking to me about the courtroom appearance is that I've never seen Trump in any situation where his language, his words have been constrained, but here in the courthouse, he could say only five things, only five words. They were "not guilty" and then "yes" in answer to three procedural questions. That to me was the biggest indication of what is going to be coming with these legal proceedings is that his liberty is at stake as is the case for all criminal defendants. That doesn't mean he's going to prison, but that is the ultimate stakes of a criminal proceeding.

In theory, if he doesn't abide by the rules, he faces penalties, which is as a New York businessman who kept getting away with things, same as a presidential candidate, same as a president and ex-president. So far, that to me was the most striking thing about all of this. Somebody else gets to call the shots, not former President Trump.

Brian Lehrer: Let me return to the scene outside that you were describing. I heard the NYPD didn't even arrest anyone. That's how unlike January 6th this was, and we can take that as police being chill when it comes to pro-Trump crowds as opposed to other protest crowds or we could take that as the whole thing was a nothing burger from a public demonstration standpoint, and Trump from a political perspective has reason to be very disappointed. Do you choose option two?

Andrea Bernstein: I don't know whether he has a reason to be disappointed or not, but all of the demonstrators and protesters that I saw on both sides were mostly playing to all of the media that were there. The media completely surrounded the park in Lower Manhattan that's across from the courthouse going up and down the streets. There were protesters walking around, a small group Blacks for Trump, somebody with a Hillary Clinton sign that said, "Lock him up," various Trump impersonators. It was very kind of performative, not large-scale protest, not angry.

As you know, our podcast Will Be Wild was all about January 6th. We spoke to people who went there. There were messages passed back and forth for weeks. People came with various different kinds of weapons, flagpoles. Some came with guns, bear spray, tasers. This did not have that feel at all. One of the things, now I have not reported at all on the intelligence pre this particular day, but I do know that after January 6th, the federal government, the federal Department of Homeland Security, became quite proactive about trying to discourage people from showing up at these kinds of events. Being clear that if people came, they would be arrested.

Brian Lehrer: Well, that's a little chilling in a different way, right? We really don't want to chill people's First Amendment rights, the right to protest government actions of any kind.

Andrea Bernstein: Right, yes. I'm sorry, I should have been clear. If people came with an intent to commit violence, they should expect some kind of government reaction.

Brian Lehrer: Got it.

Andrea Bernstein: From the reporting that I have done on January 6th, the message definitely went out to various pro-Trump communities that even if they felt like they were encouraged by the former president to show up-- I don't know exactly what he meant by his death and destruction quote or by the picture of him with a baseball bat next to the DA, the picture of Trump with a baseball bat pointed at the head of Alvin Bragg, the DA, in the social media post, but if somebody were to interpret that is they should come and commit an act of violence because they believed the former president was indicating that was something they should do.

I don't know in this case, but I do know in other cases that the law enforcement messaging has been that's a bad idea not to protest but to violently protest. What we saw yesterday was certainly some protest, certainly loud demonstrations, but not a lot of people. As you say, no incidents of violence, no organized violence that appeared to arrive in Lower Manhattan yesterday in any way.

Brian Lehrer: Political question. Trump is the current front-runner in public opinion polls for the Republican nomination. Mitt Romney yesterday made a statement saying Trump is unfit to be president, which he said for a long time, but the charges are a political overreach. Do you have any political analysis of why Mitt Romney went public with that and so quickly against the DA? Any theory?

Andrea Bernstein: I do not know why Mitt Romney said that. I haven't done any reporting on it, but I do feel that it is concerning to me that we've had widespread sets of attacks on this prosecution from members of the Republican Party led in many ways by the House Republicans who are some of the most extreme in the Republican Party right now but also joined by many rivals of the former president, the current campaign, former Vice President Pence, governor of Florida, Ron DeSantis.

They've all said things that are critical of this prosecution, which they said even prior to learning the charges and what was in it. To me, that is concerning because we have a process in this country and an appropriate place to test the strength of a prosecution, and that is in the court of law. That is what the defense is going to be given a chance to do. One of the reasons why these things take so long, and I heard this at the end of your previous segment, is why is the next court date December 4th. That is to give defendants an opportunity to examine the evidence and to make arguments and to defend themselves.

That's the process in this country. When you have political leadership saying from the outset that it's rigged, what happens, I fear, is that the institutions that are there to enforce the rule of law, those institutions are subject to further erosion, further attack. The things that we agree on to settle differences in society become more difficult, and that to me is very concerning.

Brian Lehrer: There is a glass-half-full analysis that I've heard regarding Mitt Romney, which is he's trying to lead the way to Elaine for other Republicans to back up Trump on the case but still walk away from him for what really matters if he will be president again. I don't know, maybe that's--

Andrea Bernstein: I think that's a fine distinction. When I feel like I'm out there speaking to people, say, people who are not supporters of the former president who feel that an indictment is going to finally clarify and solve all the issues and people who support him who say that the judicial system is unfair, the judges are corrupt, the prosecution is corrupt, they're without a doubt taking their signals from the former president, but the former president is not being isolated when he expresses these beliefs.

He's being supported by the Republican leadership, and that just gives strength to those arguments. I don't know whether the subtleties of, is there a center laneway to walk between the raindrops here-- I think that might be lost.

Brian Lehrer: Very few people have succeeded in walking it. Kevin McCarthy tried on January 6th. Other people have tried at different times after the Access Hollywood tape. A lot of Republicans walked away from Trump, and almost all of them have come back. We're in for some ride now with the timeline that you were just referencing. With the trial of Trump tentatively scheduled for January, the Iowa caucuses begin the voting for president on February 5th. What intersection of law and politics are you anticipating?

Andrea Bernstein: It's just so hard to imagine. I don't know if it was clear from outside the courtroom yesterday, but the thing that took up most of the time was not the discussion of the charges and the usual setting of dates that happens at an initial court appearance. It was the former president's social media posts and how to handle them. The DA, the assistant district attorney, Christopher Conroy, very specifically raised the picture that Mr. Trump had posted of himself with a baseball bat pointed at the head of the DA Alvin Bragg.

There was reference, although the ADA didn't say to the judge, "Judge, you yourself were disparaged today in a social media post. You and your family." That happened right before the court hearing. The ADA said that we can't have a situation where we're conducting a legal proceeding while the defendant is creating a security risk for the participants. Now, Trump's lawyer, Todd Blanche said, "Look, the former president's been subject to smears for three and a half years. Michael Cohen has been speaking at every possible opportunity. Stormy Daniels has been speaking at every possible opportunity. This is an outrage. It's unfair. There was no crime here, and the president is just frustrated."

At which point the judge turned to him and said, "I don't agree with your characterization that frustration justifies the president's language." The judge first made clear he will not be imposing a gag order, and he said he would especially not be imposing any kind of a gag order because of the upcoming presidential campaign. As it was just discussed, there was this question about pretrial materials and putting a restriction on Trump's ability to even see, even handle those pretrial materials, where he could handle them, resonance of the classified documents case that Jack Smith is looking into.

They said that he can't take the documents with him. The question of the president's speech in the presidential campaign obviously came up. It came up more subtly with respect to the question of a proposed trial date. The prosecution said, "We'd like to have a proposed trial date in January 2023." The defense said, "Well, that might be aggressive. Maybe in the spring." Oh, excuse me, January 2024. The defense said, "Well, maybe in the spring of 2024." What happens in January of 2024? High primary season. Even higher primary season.

I think that looking back at 2016, the last Republican primary that wrapped up around the beginning of April, we're talking about the overlaying of all of this campaigning, debates, actual presidential primaries with a legal proceeding. I think the message from the judge is somehow we're going to have to push through.

Brian Lehrer: This is WNYC FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are New York and New Jersey Public Radio and live streaming at wnyc.org at exactly eleven o'clock. A few more minutes with Andrea Bernstein formerly of WNYC's Trump, Inc podcast, then the Will Be Wild podcast about January 6th. She now covers Trump legal affairs for NPR and democracy for ProPublica. Staying on what you were just describing for a minute, the judge laying down markers for Trump to not exceed with respect to inciting violence, then Trump went to Mar-a-Lago and gave a speech last night. Here's just a five-second clip where he talks about the judge and his family.

Donald Trump: I have a Trump-hating judge with a Trump-hating wife and family.

Brian Lehrer: A Trump-hating judge with a Trump-hating wife and family. I presume that that is probably by everybody's account still on the right side of the line in terms of not threatening the judge's family, even though they are under threat. He had some substantive reasons for criticizing them, at least from his point of view, like the judge's daughter has worked in some capacity for Kamala Harris. Do you know about those details? Do you think Trump was being more circumspect than he has been on social media because of the judge's admonition?

Andrea Bernstein: Yes. I did watch that speech. Nothing about it felt circumspect. It was a series of seamless conspiracy theories from Hunter Biden's laptop to Ukraine and Russia to the Manhattan DA, to Jack Smith, to the boxes of documents at Mar-a-Lago. It just was one long run on conspiracy theory from beginning to end. It didn't seem [crosstalk].

Brian Lehrer: Yes, but there's a difference between that and the baseball bat photo to Bragg's head or saying there will be death and destruction if I'm indicted.

Andrea Bernstein: Certainly. Certainly, that is the case. What I've been told by people who track the way these things move on social media is once you start calling attention to people, to the judge's wife and family, that there are people out there who begin the attacks. We saw it, for example, with elections officials in 2020 where people were called out personally, their families, and they began to feel the pressure from extremist supporters of the former president. The judge said to Trump's lawyers yesterday that they should encourage their client to refrain from language and conduct that could lead to violence or civil unrest or undermine the rule of law.

He didn't say anything like, "Go to the Capitol and fight like hell," certainly. He arrived at Mar-a-Lago clearly seething, and if you look at this bookend of his public appearances, the court hearing that lasted, I think, a little over an hour to the speech at Mar-a-Lago where in that court hearing Trump could say almost nothing and then he got to Mar-a-Lago and got it all off his chest. We will see. There certainly has been a lot of reporting, including some reporting I've done by people around Trump that it's very hard to get him to restrain his language. That will be really tested during this legal proceeding.

Brian Lehrer: Before you go into your WNYC podcast Trump, Inc, I'll remind people it was all about the intersection between Trump's business interests and the public interest. Given the facts attached to the criminal charges against Trump by the DA, how does this fit into a bigger picture of the way The Trump Organization has operated? CFO Allen Weisselberg is currently in jail for tax fraud related to a larger conviction of The Trump Organization itself for financial fraud. Does all of that connect to the new charges against Trump himself, even if indirectly?

Andrea Bernstein: Well, I think there's a couple of ways. I think that Trump's chief financial officer pleaded guilty to 15 felony counts of fraud. Trump's company was convicted by a jury of 17 counts of fraud. These were all lying about, in a broad sense, how their business was conducted, lying to tax authorities. This is another case where lying is at the heart of it. What DA Bragg is accusing Mr. Trump of, he's saying, look, he paid off this hush money to alter the outcome of this election according to the DA, and you can't do that. Doing that is a violation, he said, of New York laws, which say it is a crime to commit a conspiracy to undermine an election and to federal laws which set limits for broadly the same reason.

What this case is, is if you create business records, in this case dozens of them, to prevent people from finding out about that crime, you should be convicted. That is quite a statement of thinking about the ways in which Mr. Trump's lies are now catching him up, potentially, if he is indeed proven guilty. He is, of course, innocent of these charges until proven guilty, and he has pleaded not guilty, but more broadly, I have been thinking about the fact Trump, Inc was-- We started that reporting project because the former president did not separate himself from his business interests while he was president.

He is now being accused of directing that business to create records to hide a conspiracy to undermine the election. All of that happened after Mr. Trump was elected president. If he had indeed separated himself, we might be having a different discussion now. That's an unknowable counterfactual, but Trump was inextricably bound up in this. We learned in the course of the revelations of the last days that he discussed with Michael Cohen these falsely characterized reimbursement statements in the White House and that he directed this according to the indictment from the White House, and then he tried to cover it up according to the indictment from the White House through various records and phone calls and voicemails that we have yet to see.

Brian Lehrer: Right, because all those payments and falsification of the records were taking place during his first year in office in 2017.

Andrea Bernstein: Exactly. This businessman president is now being examined precisely as an outgrowth of that lack of separation which we spent all of those years looking at.

Brian Lehrer: Andrea Bernstein who covers democracy for ProPublica and Trump legal matters for NPR, she is the author of the book, American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power, and she co-hosted the podcasts Will Be Wild and WNYC's Trump, Inc. Andrea, we are once again the beneficiaries of your journalistic wisdom. Thank you so much.

Andrea Bernstein: Thanks so much. It's always great to talk to you.

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