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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. A very important political event for the future of our country is taking place tomorrow. It involves what will happen in court. No, April Fool's, two days late, I'm not talking about the arraignment of Donald Trump, which might be less important than what meets the cable TV news eye. It's the election tomorrow for one seat on the state of Wisconsin Supreme Court. The candidates, you've probably never heard of, are named Dan Kelly and Janet Protasiewicz.

At stake could be everything from abortion rights to union rights to gun rights in the Badger State and for the rest of the country, perhaps, control of Congress in a challenge to the Republican gerrymandering that helped them take the House. Remember, New York's Democratic gerrymander got struck down by its highest court appointed by Democratic governors. Wisconsin's court allowed the Republican gerrymander to stand. You could make a case that that's why we have a Republican majority Congress today.

Later this hour, in part two of our Monday morning politics segment, we'll take a closer look at Kelly versus Protasiewicz for Wisconsin Supreme Court Justice and why it matters nationally. As for Trump's arraignment, well, he's expected to fly to New York today as you probably heard, sleep at Trump Tower tonight as you probably heard, and turn himself in tomorrow as you probably heard. The actual court proceeding and unsealing of the charges as you probably heard is scheduled for around 2:00 PM.

The indictment of Donald Trump is big, big, big in the media, but I feel like it's landing as a much littler thing and even with a kind of emptiness of meaning with some thoughtful people I know because even a conviction of Trump in New York wouldn't solve anything about democracy versus authoritarianism, which is the real Donald Trump threat, not falsifying business records. He or a similar kind of candidate could still be elected president next year and keep cultivating a strongman kind of rule that runs on white, hetero, cisgender male supremacy even if Donald Trump is convicted in Manhattan Criminal Court.

According to reporting I've seen in several news outlets, DA Alvin Bragg wanted Trump to come for an arraignment Friday right after the existence of an indictment was revealed on Thursday evening. Apparently, Trump refused or negotiated and bought himself this four-day gap, presumably so he and his allies from Ron DeSantis to Marjorie Taylor Greene could gin up a protest crowd for when Trump appears.

Taylor Greene says she'll be there at the courthouse in person tomorrow. DeSantis, as some of you have heard, appeared on Long Island over the weekend ostensibly to promote his new book and to campaign for president against Trump. Nevertheless, he stoked Trump's claim that the indictment is a political witch-hunt. DeSantis called it "not the rule of law" on Long Island, even though that's exactly what an indictment by a grand jury of 23 randomly-selected citizens who heard many witnesses is, the rule of law.

Subtext from DeSantis, "You commute into the city for work or the theater. Why not for the protest too?" There was no sign that DeSantis denounced Trump for threatening Bragg with a baseball bat in a photo Trump posted or calling Bragg dehumanizing and racist names or anything like that. I guess we're about to hear a lot about hush money and extramarital affairs and the words "porn star" as often as the news media can say them and falsifying business records, but maybe not so much about democracy being at stake outside of these proceedings. With me first, NYU Law Professor Melissa Murray, who was also co-host of the legal affairs podcast called Strict Scrutiny. Professor Murray, good to have you on again. Welcome back to WNYC.

Professor Melissa Murray: Thank you, Brian.

Brian Lehrer: What do you think is at stake in this prosecution on a small or as grander level as you might be thinking about it?

Professor Melissa Murray: Well, I agree with you that this is probably the less-important legal news story of the week. I agree with you that the Wisconsin Supreme Court election is probably the bigger story, but this will certainly garner the lion's share of the media attention, and that's unfortunate. There's a lot at stake. Interestingly, I think there are a lot of people who are aligned on both sides.

I think the one thing that everyone, whether on the left or on the right, wants right now is to see a photograph of Donald Trump doing some kind of perp walk. They want it for different reasons. The left because they have been baying for blood for some time for Donald Trump. Donald Trump would like this because it will be incredibly advantageous in stoking his claims that he is the victim of a liberal witch-hunt that ends here at the New York courthouse.

Brian Lehrer: Can Trump continue to live in Florida after indictment? Because sometimes we hear that defendants are told not to leave the state.

Professor Melissa Murray: Well, it will depend on what Justice Merchan has to say at the arraignment on Tuesday. There may be additional conditions that are placed on the defendant. He may have to surrender his passport. There may be conditions about staying within the jurisdiction. All of that, I think, will be left to the judge and we'll learn more about it and certainly more about the charges that have been levied against Donald Trump on Tuesday at that arraignment.

Brian Lehrer: Listeners, you can ask a legal question at Professor Murray or a political question for Jonathan Lemire, Politico's White House bureau chief, who will join us in a few minutes, or tell us how this is sitting with you. Big thing, little thing with a lot of media play. Is this landing as, "God, we're finally going to get him, maybe," if you're anti-Trump, or with a kind of emptiness, "What? Falsifying business records," and that even a conviction won't really get him in the meaningful sense, or whatever you think about it, whatever you want to say or ask, 212-433-WNYC, 212-433-9692? Professor Murray, let me continue on a few legal questions and not to speculate because we don't know what the charges are. We'll find those out tomorrow, but more on the rules. Do you expect bail to be required under New York's bail laws?

Professor Melissa Murray: There may be bail required. Again, this is a very high-profile defendant, one with significant means, so that may play into this. I think the bigger question will be, what additional conditions will be levied, if any, on the defendant, given that not only is he not physically living in New York State at this moment, he's residing in Florida? He's also likely to be hitting the road as he pursues his campaign for a second presidential term.

Brian Lehrer: Is that okay? Would there be any restrictions on that at the bench?

Professor Melissa Murray: Again, I think that's a question for Justice Juan Merchan. There could be some limitations, for example, on overseas travel, perhaps requiring him to surrender his passport, given that he is a defendant of considerable means and with the opportunity to travel and perhaps with receptive hands in other jurisdictions and foreign jurisdictions that might be willing to have him. I think for the most part, the real question will be about whether he needs to remain in New York State and whether any conditions will be placed on inter-country travel while he campaigns.

Brian Lehrer: Oh, but that would assume that the judge is concerned about Trump not appearing for his trial and basically becoming a political exile in a friendlier country.

Professor Melissa Murray: That can mean the question of a flight risk. That may be something he's considering. I will say, as I said earlier, this potential trial has real upsides not only for those who seek a conviction but also for Trump himself. This really plays into his narrative that he's been persecuted for so long. Again, the idea of leaving is probably unlikely, but certainly something that the judge may consider.

Brian Lehrer: Well, along the lines of playing to his advantage, we know Trump has been fundraising off his indictment. Can he use the money his campaign is raising off of this to pay legal bills?

Professor Melissa Murray: No, not to pay legal bills, but obviously, it can be used to fund his campaign. According to his campaign, it's been quite lucrative over the last couple of days as he's made hay of this indictment. We actually can't corroborate what the campaign is saying about how much they have raised on the fuel of this indictment. That won't be available for a number of weeks now. Yes, that can certainly be used to fund a campaign, purchase airtime for the campaign, things of that nature.

Brian Lehrer: Kevin in Belmar, New Jersey has a question. Hi, Kevin. You're on WNYC with Professor Melissa Murray from NYU Law School.

Kevin: Good morning. I wanted to ask that given Trump's propensity for inflammatory remarks, what do you think the chances are that a gag order will be issued at some level for this indictment?

Professor Melissa Murray: Well, I think the likelihood that there will be restrictions on speech about the trial and certainly as the trial, if it happens, and I think it likely will happen, I think guilty plea is unlikely here when it does happen, I think we'll actually see a lot of limitations on what can be learned or what can be said and by whom.

I think one of the clearest things, I think, we're likely to see is probably jury sequestration here, so keeping the jury sequestered, limiting what the jury can see, and also limiting who knows what about the jury in New York State, although jurors' addresses are not published, their names are. There may be some efforts to try and sequester the jury not only for their safety but to also prevent any external pressure on the jury.

Brian Lehrer: That would be once they get to trial, which would be a long time from now?

Professor Melissa Murray: Right. It could be a long time from now. There's obviously a lot of pre-trial work that can go into this. The defense will certainly, I think, challenge the substance of the charges once those become known. I think it is likely that the underlying charge is about the falsification of business records. That would only be a misdemeanor unless hinged to another charge. The likely charge that's been speculated is some violation of state-level campaign law. There's an open question about whether that could support a conviction in a circumstance involving a federal election.

I think that is something that the defense is likely to pursue as it defends against these charges. We may also see an effort to remove this case from the jurisdiction of Manhattan to perhaps a friendlier jurisdiction on the view that Manhattan jurors are unlikely to give Donald Trump a fair trial. There's a lot of stuff that will go into the pre-trial work here. It may be a while before we have a trial, but I think it's more likely we will have a trial than some kind of guilty plea from this defendant.

Brian Lehrer: We hear that it'll be in Trump's political interest to drag the legal proceedings out as long as he can into the 2024 election cycle. What if he's elected president again while the case is going on? Could the DA continue the case if it's not done and Trump is elected president next year?

Professor Melissa Murray: Well then, Brian, we are truly in uncharted waters. This is already an unprecedented situation, a former president indicted, but the idea of a president-elect being subject to a criminal conviction, I think we have never seen anything like that. All bets are off at that point.

Brian Lehrer: The law is unclear on that. Remind me, can local prosecutors charge a sitting president with state-level crimes or only former presidents?

Professor Melissa Murray: That's unclear. We have the guidance from the Office of Legal Counsel, which was so pivotal in the context of the Mueller report about a sitting president being unable to be criminally prosecuted and that impeachment was the only avenue for accountability.

Brian Lehrer: Right, but that's at the federal level, right?

Professor Melissa Murray: That is at the federal level, but I think we haven't seen this. There are likely to be big questions, certainly questions that implicate questions of federalism like, what is the relationship between the state and the federal government? What can states do in their own sovereignty even as it implicates the sovereignty of the federal government? These are all open questions. I think there may be open and shut answers, but they're likely to be pushed and certainly to be challenged under these circumstances.

Brian Lehrer: Leo in the Bronx, you're on WNYC. Hi, Leo.

Leo: Hi, good morning. Thank you for taking my call. I'm a retired state investigator for the Department of Labor. The way we enforce labor law regarding minimum wage and overtime is an employer can be prosecuted criminally if they falsify records while trying to show that minimum wage was paid when it really wasn't. That was a two-year criminal statute of limitations.

I worked on cases where there were records violations and we had six years to file charges against an employer to be within the statute of limitations. In this situation, from what I'm reading is that he broke the law in 2016 regarding records, and he's being indicted in 2023. That's seven years and I thought it's a six-year statute of limitations. Could you address that issue?

Professor Melissa Murray: Well, I think it's something that the defense is certainly going to address whether it's too late for the district attorney to bring these charges because the statute of limitations has elapsed. I'm not sure that the statute of limitations is the same for the falsification of business records in this context as it is in the labor context, but I'm sure it's similarly tying. I think that is going to be a question and I think it's something that, likely, the district attorney has anticipated. We are likely to get an answer on it. Again, we don't know what the nature of the charges are, so we don't know what the relevant statutes of limitations are.

Brian Lehrer: Leo, thank you for your call. Professor Murray, tell me if this is your understanding. What I've heard is that there is a statute of limitations, I think five years, on falsifying business records, but that that statute of limitations is suspended if the falsification is tied to a larger crime or to a federal crime. In this case, the speculation is that it would be the campaign finance violation of not reporting the hush money payments as campaign spending. That suspends the statute of limitations. Is that your understanding?

Professor Melissa Murray: That's my understanding, but then, again, there's the more substantive question of whether or not a federal campaign can trigger this violation of a state-level campaign finance law. There are just broader substantive questions about the interaction of all of these different laws with the underlying falsification of business records. All of that would implicate the statute of limitations ultimately.

Brian Lehrer: Deborah in Jersey City, you're on WNYC. Hi, Deborah.

Deborah: Hi, so my point is that Donald Trump has been part of 1,300 cases in his lifetime. He's a repeat offender. He settled 175 cases according to my googling, [chuckles] which--

Brian Lehrer: Well, to be clear and to be fair, those are civil cases and he's never been criminally charged with anything, no less convicted before.

Deborah: Yes, there's a difference. I agree somewhat, but who is involved in 1,300 cases who is saintly? These cases were not political. It was before he was in office. Why is everyone screaming it's all political that he's in court again?

Brian Lehrer: Deborah, thank you for that. Let me go to a caller, who I think is going to say it's all political that he's in court again. Danny on Long Island, you're on WNYC. Hi, Danny.

Danny: Brian, I haven't talked to you in a long time, but I do listen and I have trouble getting through. Yes, I do identify as a conservative. I do hate politicians on both sides of the aisle, so I don't have any flags in front of my house representing my political views. I have spent my life in law enforcement. My two children have spent more time in the grand jury room than most lawyers.

Brian Lehrer: Yes, sir.

Danny: Now, when you hear this term "legal gymnastics" to try to explain how unusual they're tying together these charges are, yes, this is completely political. Your guest, who is very honorable and intelligent, said that both sides have something to gain with the conviction. Well, is that what a district attorney is there to do, to have a gain by a press? No, the district attorney is there to impartially enforce the law.

When you're doing something that has never been done before and, now, you're doing it to the ex-president, my fear is that, is this the new standard now? We are going to have local district attorneys doing political prosecutions of politicians at all levels. Is that in the best interest of the United States? Absolutely not. I don't trust any of them. I wouldn't doubt it tomorrow. Now, all of a sudden, the Republicans are in charge of the House of Representatives. Why can't they just not make up some nonsense thing?

The Russia thing we found out was 99% nonsense. Are the Republicans, who I despise equally, going to turn around and do the same thing? If the price of oil skyrocketed at $10 yesterday, the stories are cutting off the oil supply, we have real problems in this country that real people have to face. I have no tolerance for this nonsense. I'm sorry. I get my Irish up. I'm very furious about it.

Brian Lehrer: Well, that's all right. Let me ask you a follow-up question. I'll just acknowledge for all those listeners who are going, "What?" that a lot of people don't think that the Russia thing was 99% wrong. You're right that on the polls-- and we'll talk to Jonathan Lemire in his context as a political analyst in a couple of minutes. On the polls, 90% of Democrats think this is not a political prosecution. 90% of Republicans do. I think that was a Quinnipiac poll the other day, so it's that divided.

To those 90% of Democrats, why does it look political to you? Because to them, it looks like here's a fairly cautious DA who got in trouble with some of his own ADAs for not pursuing a Trump prosecution when he first took office. Looking at a case that he's brought 117 other times from the stats that I saw, that is falsifying business records. Why would he let it slide in the case of Trump? Why does it actually look political rather than not letting him off the hook as a special privilege?

Danny: Alvin Bragg ran on freeing everybody. You can google it. I'm not going to try people who've been arrested with guns unless the gun was used in the robbery. He looked at this case upon his arrival and dismissed it just like he's dismissing a lot of other cases. 12 to 15 months later, Trump announces he's running for president. Now, all of a sudden, this is the case that he has-- so at some point, you have to be naive to think, and I think most people think-- if this was Andrew Cuomo or the governor, do you think this-- No, of course not.

It would absolutely not happen. Every campaign has had campaign finance violations. There are fines. You pay it. This is [inaudible 00:20:22] because it involved the hooker. It's also seven years ago. There is a statute of limitations. Originally, when you have the legal gymnastics, they start to explain something. Now, tomorrow, if it comes out and there are some very serious charges that we did not know anything else about, well then, yes, we can take a look at that. There's no way any of this happens without the realm of politics hovering over it. That would just be naive.

Brian Lehrer: Danny, thank you for your call. Keep calling us. Professor Murray, what were you thinking during any of that, including his bringing up what Alvin Bragg as DA of Manhattan does regarding any other kinds of criminal prosecutions?

Professor Melissa Murray: Well, to be clear, when I said that both sides have an interest in this, I did not mean the DA. I was thinking of rank-and-file people on the ground on both sides of the aisle. I think Alvin Bragg, this is not something I think undertaken lightly. There is no political advantage in it for him if this goes to a trial and results in an acquittal. This could be the unmaking of his career. He has a lot at stake here as well. Again, we are a country of laws.

Donald Trump has been indicted and he will face a criminal process like any other defendant, probably better than many other defendants in the United States. He will certainly have legal counsel, the best legal counsel money can buy, and the government. The DA's office is required to prove every charge against him beyond a reasonable doubt in order to secure a conviction. That is an incredibly high standard, incredibly high. If we don't have a standard like that, it does mean the government could railroad everybody. The ultimate point here is that there is going to be a legal process.

This isn't going to be political. It's going to be heard in front of a judge and a jury. They are ultimately going to decide if the government has met its burden. If the government hasn't, then Donald Trump will be acquitted. If we didn't have this process and we had a former president who has broken the laws, we would be a country in which some people and not others are above the law. That can't be the kind of country we want to be, or at least it's not the kind of country I want to be a part of.

Brian Lehrer: We'll continue in a minute with NYU Law Professor Melissa Murray and add Politico White House bureau chief and MSNBC host Jonathan Lemire. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we anticipate the arraignment of Donald Trump in New York tomorrow with NYU Law Professor Melissa Murray, who is also co-host of the legal podcast, Strict Scrutiny. Also with us now, Jonathan Lemire, Politico's White House bureau chief and co-host of Way Too Early on MSNBC, 5:00 AM weekdays, and a central presence on their following show, Morning Joe. Jonathan, thanks for extending your workday for the benefit of our listeners. Welcome back to WNYC.

Jonathan Lemire: Brian, a pleasure as always. Thank you.

Brian Lehrer: I was talking before about how big this case is in the media, but perhaps how small compared to real threats Donald Trump poses, which are not about falsifying business records if that's the charge, but more about trying to transition this country to a kind of authoritarian rule based on identity politics of race and gender and sexual orientation and religion. How much do you agree or disagree as a political analyst that this may be good political theater, but it's a low-stake storyline compared to what's really important regarding Donald Trump?

Jonathan Lemire: Yes, this really feels like the opening act if you will. I know there are some who complain, Democrats in particular, that this case went first, fearful of the tone of consent. Obviously, though, there's no coordination between the various prosecutions, but you're right, this is the smallest stakes. It's the charges that face Trump. We, of course, will learn more about them tomorrow when the indictment is unsealed, are far less significant than the other three active and open investigations.

The one in Georgia about election interference in that state and then the two that are being done by Jack Smith, special counsel, one over Trump's mishandling of classified documents at Mar-a-Lago, and perhaps more to the point, his efforts to obstruct the DOJ's moves to get them back, and then, of course, everything about January 6th. That's in terms of the legal matter.

Those seem to be far more serious. Politically, I think we have two distinct answers here. One, this is, poll suggests, potentially a boon to Donald Trump temporarily in the short-term in the Republican primary field. That said, I think he'd be very hard-pressed to argue anything other than this would hurt him. Any of these cases would hurt him in a general election when he's trying to win back independent and swing voters who lost in 2020.

Brian Lehrer: Well, that remains to be seen. Jonathan, there are a lot of things that people thought in the past would hurt Donald Trump politically. They wound up either not hurting him or maybe even helping him. We can go all the way back to the beginning of the 2016 presidential campaign when he said the Fox News anchor, Megyn Kelly, was bleeding from her whatever. We thought that was going to be the end of Trump when he said John McCain wasn't a war hero. He's only considered a hero because he was captured. We thought that was going to be the end of Donald Trump. The Access Hollywood tape, all those things arguably helped him, so why think this would be any different?

Jonathan Lemire: Yes, I was in the room for most of those. You're right. Certainly, right now, especially when it comes to Republicans. It's only helping him. I think, look, he has made the case that this particular prosecution he's suggesting is biased. He is suggesting it's politically motivated. He's suggesting this is something that's many years old that most Americans don't care about. Polling backs him up to a degree. Of course, there's also the ethos that no man is above the law.

In terms of short-term political gain, what this has done is it has rallied Republicans around him. His base has always been there, the MAGA base. It has shrunk over the years, but still bigger than anyone else in the Republican field certainly. Even if it's shrunk, it's also hardened. The fervor of his supporters is still very much there. What he has done effectively is force other Republicans, including many of those who are looking to run against him in the primary field, to also come out and bash this investigation.

Good faith or not, they're all singing from the same song sheet about how this is politically motivated and so on and so on. Right now, this investigation in particular response to is breaking down along party lines that may be different for other probes that could be coming later this year. Right now, on the eve of this arraignment, it's only helped him in the Republican primary.

Brian Lehrer: Professor Murray, Jonathan mentioned that this may only be the opening act before an indictment from Georgia on trying to interfere with the election results there. We know about the phone call to the Secretary of State of Georgia, Brad Raffensperger, and all of that. It may be a prelude, an opening act to an indictment from Washington, from the special counsel and the US Justice Department on January 6th-related charges or classified documents-related charges. What if all those charges come down and this Manhattan prosecution is going on at the same time? How does a legal system sort out what happens when?

Professor Melissa Murray: Well, that's a terrific question, Brian. Again, uncharted waters for us. The prospect of a former president indicted is certainly unprecedented, but to have him indicted on numerous charges, both at the state and federal level in different jurisdictions, I think, is completely unprecedented. How it would all be sorted out is a broader question. Again, your earlier question about what would happen if he was, in fact, the president and this case was still going on. I think they're real questions.

We certainly have a precedent of Ulysses S. Grant being charged with a misdemeanor, speeding in his carriage in New York State while he was president. We've never had a situation where there have been felony charges leveled at the state level on a current president or president-elect or a former president for that matter. We are literally in uncharted waters. Again, as other people have noted, this is not necessarily unprecedented for other systems.

We have plenty of systems where former leaders have been subject to indictment once they've left office, query whether that makes us more or less like these other systems and whether that is or is not a good thing. I think the thing to just underscore here is we have never had a situation like this. This is sort of a perfect storm of criminal liability and that will be very difficult for the legal system to shake out.

Brian Lehrer: Jonathan, there was-- and all this media coverage of the Trump indictment obscured this. There was an actual anti-Trump Republican who declared for president over the weekend, and that is former Arkansas Governor Asa Hutchinson. He said he's running on ABC This Week yesterday. He told the country why. Listen.

Asa Hutchinson: The reason as I've traveled the country for six months, I hear people talk about the leadership of our country. I'm convinced that people want leaders that appeal to the best of America and not simply appeal to our worst instincts.

Brian Lehrer: Does someone like Asa Hutchinson have a shot in the world, Jonathan, at this nomination, given the Republican mood that you were describing earlier? I'm scratching my head seeing him even get into the race.

Jonathan Lemire: It seems very unlikely in the Republican Party of the year 2023, the Donald J. Trump Republican Party. If this was 10, 20 years ago, someone like Governor Hutchinson would make a lot of sense for what the GOP used to be. There doesn't really seem to be a lane for him right now or anyone like him. Two other thoughts here. I think it is telling and instructive that the only candidates in the Republican field or prospective candidates who are really criticizing Trump right now are former Governor Hutchinson and former Governor Chris Christie.

Both of whom are polling at about 1% and not seen as real viable challengers. The other Republicans are more loath to do so because they know that Trump is the favorite and they can't win the nomination themselves. If they alienate all of Trump's supporters, they need at least some of them in order to do so. I'm not sure there is an anti-Trump lane necessarily, or at the very least, maybe there's a two-person race here in Trump and Governor DeSantis where he indeed to jump in as expected.

Trump has really opened up his lead over DeSantis, depending on the poll. It could be 15, 20, 30 points, but DeSantis, at least for now, that's where the anti-Trump forces have coalesced around him. Everyone else, the Pences, the Pompeos, the Haleys, these other candidates are all doing in the single digits. DeSantis, though he doesn't come with some of the baggage perhaps that Trump does, his politics and policies are pretty similar and a lot of very radical people think in many ways.

Therefore, I'm not sure there even is a mainstream lane for someone like even, let's say, a Glenn Youngkin, the governor of Virginia, to enter. These are people who, on paper, would be prospective "moderate candidates" in the GOP field. There really isn't a modern mainstream lane anymore. It's just what type of MAGA-esque politics do you want, Trump or DeSantis.

Brian Lehrer: Maybe Arkansas is a perfect example of that, where Asa Hutchinson was the governor. Now, it's Governor Sanders, who was Trump's press secretary. We see what kinds of speeches she's been giving. Here's a little more of Hutchinson on ABC yesterday. I want to get your reaction to something he says here too. Listen.

Asa Hutchinson: It's still about retail politics in many of these states. Also, this is one of the most unpredictable political environments that I've seen in my lifetime. My message of experience, of consistent conservatism, of hope for our future, and solving problems that face Americans, I think that that resonates.

Brian Lehrer: Do you agree, Jonathan, that we're in an unpredictable political environment? I could argue, it's very predictable. Republican America finds its expression in Donald Trump for the most part. The Democrats' debate align from Joe Bidenism to Bernie Sandersism.

Jonathan Lemire: Yes, I tend to agree with you. I think that the day-to-day feels turbulent and feels unpredictable just because we're suddenly back in that news cycle where there's extraordinary headlines seemingly every hour generated largely by Donald Trump or world events. The parties seem fairly fixed. Yes, there's definitely a greater, frankly, divide among Democrats in terms of ideology. You just mentioned it, the Biden to Bernie lanes. At the end of the day, at least for now, there's no sense that that party would split.

If President Biden, as is expected, runs for reelection, there may be some progressives who grumble. We certainly see some polls to suggest that enthusiasm behind Biden is not that great, but there's no real expectation that there'll be a fracturing of the party that someone will challenge Biden for the nomination. It's expected that most Democrats will get on board. Then for the Republicans, yes, there's certainly a minority there, but a very quiet minority that would like to turn the page from Trump.

That's what they say privately. Publicly, they're not doing it because they're afraid of Trump. More importantly, they're afraid of Trump's base. The Republican Party is still very much in Trump's grasp. At least for now despite the turbulence of the last few years in American politics, more than likely, we're destined for a rematch, a rematch of 2020. That's just not as predictable as it gets if we get Biden and Trump again.

Brian Lehrer: Here's a question for Professor Murray from Marita in Brooklyn. Marita, you're on WNYC. Hello.

Marita: Hello, I wanted to ask why no one is discussing about a comparison between the trial of John Edwards and this trial. I know that David Brooks mentioned it briefly on Friday night, but no one's really discussing it, especially since John Edwards got off.

Brian Lehrer: Yes, and we've talked about it on this show. Professor Murray, to remind people briefly, John Edwards, when he was running for president, got caught in an affair, and then he was charged criminally with basically paying hush money to his mistress to cover up the affair during his presidential campaign. He got off on the defense that, no, he was really hushing her up to preserve his marriage so his wife wouldn't find out rather than the electorate. I guess the jury bought that. Is that an accurate description of the John Edwards case?

Professor Melissa Murray: It's mostly accurate. I will say some people have been talking about it. I've certainly talked about it when covering this in the media. It's an app comparison, although there are some important distinctions. The John Edwards case was obviously brought in federal court on federal charges. This is obviously a state and local case, so that's a difference. Again, it goes to the point that I made earlier to caller Danny.

This is a case where the government has the burden of proving these charges beyond a reasonable doubt. For whatever reason, if the jury believes that the government has failed to meet its burden, the defendant will be acquitted of these charges. Again, there is a process here on whether or not you think this is politically motivated or whether or not you think this will play out in a particular way in politics. Law is different from politics. This will play out on a legal scale with jurors and a judge and there will ultimately be a legal standard that the government and not Donald Trump must meet.

Brian Lehrer: We will see if Trump uses that same kind of defense, "No, no, no, I was hushing her up so Melania wouldn't find out." We don't know yet if he's going to do that. Jonathan, I know you got to go in about 30 seconds, but I want you to give me one quick take as White House bureau chief on what Biden is doing, if anything, on the seizure by Russia of Evan Gershkovich, The Wall Street Journal reporter, who Russia is accusing of being a spy. Obviously, The Wall Street Journal is outraged and defending him. I don't know if it has anything to do with Gershkovich being Jewish and Putin trying to pull some kind of stunt around that, or what are you hearing?

Jonathan Lemire: Certainly, it's a further sign that Putin is escalating this war is seemingly has no interest in rejoining the community of nations, the established world order that he, of course, shattered last February. President Biden has condemned in the strongest of terms this abduction of The Wall Street Journal reporter. His Secretary of State, Anthony Blinken, called the Russian Foreign Minister, Sergey Lavrov, over the weekend to press for his return.

That's a rare communication between these two men since the war began. Blinken also highlighted a couple of other Americans, including Paul Whelan, still also in Russian custody, saying they also should be returned. There's a sense here that Putin may be using this journalist as a bargaining chip, trying to get another swap whether from the US or another Western country to get a Russian exchange.

The US is not interested in that, at least at this moment. It's another flashpoint and it's one that comes. We shouldn't lose sight of this in the days before, what is expected to be Ukraine's counteroffensive. There's an explosion in St. Petersburg that killed a Russian military blogger. The Russians are blaming it on Ukraine. Ukraine's denying that. The fear of fighting is only going to grow more fierce in the weeks ahead. It's just another sign that this war has no end in sight.

Brian Lehrer: Politico White House bureau chief and MSNBC Way Too Early, 5:00 AM weekdays, host Jonathan Lemire, NYU Law Professor Melissa Murray, also co-host of the legal affairs podcast, Strict Scrutiny. Thank you so much, both of you, for joining us today. We really appreciate it.

Professor Melissa Murray: Thank you.

Jonathan Lemire: A pleasure.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come.

 

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