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Trying Trump: Is He Being Treated Fairly by The Justice System?
6 Plays1 year ago
The New York Country Lawyers Association Amicus Curiae Podcast with Host Daniel K. Wiig sat down with guest Vinoo Varghese, Expert Legal Analyst, and New York City Criminal Defense Attorney. The aim of the show is to share a balanced legal analysis that is void of political influence and based on facts. Host Daniel K. Wiig and Vinoo unwind the outcomes of the latest cases against former President Trump and whether he is being treated fairly by the justice system. Can Trump get a fair trial in New York? Is justice being served?
Vinoo Varghese Bio
New York City Criminal Defense Attorney
This episode was recorded prior to the United States Supreme Court's presidential immunity decision. The views expressed here are those of the guest and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its board.
Transcript
Predictions and Bias in Trump's Trial
00:00:01
Dan Wiig
So I think you have a crystal ball because you called it weeks ago that Donald Trump would be convicted of all 34 counts of falsifying business records. I know you're damn good at what you do, but what what gave it away? what made What made you know so far in a advance that they were going to find him on all counts, which shocked some legal analysts?
00:00:24
Vinoo Varghese
So it was an easy prediction. I'd like to say that I was a ah genius. ah You know, I'd like to say that, but I'm not. It actually was an easy prediction because look right off the bat and people don't want to hear this. He never stood a shot of of getting an acquittal. You have to understand that you've got to give everyone a fair shake. Right? People believe in most of America and perhaps most of the world, when you think about people that are polarizing, whether it's Donald Trump, Bill Cosby, or Harvey Weinstein, you ask a person if they're being honest, do they deserve a fair trial? And I'm telling you, nine out of 10 people, including lawyers,
00:01:21
Vinoo Varghese
will say, no, they don't deserve a fair trial because they're bad people. And so Trump never stood a shot.
Personal Biases and Fairness of the Trial
00:01:30
Vinoo Varghese
I mean, the prosecution's theory, I think is just, what am I allowed to say on a nightclub podcast, right?
00:01:37
Dan Wiig
I will get into that.
00:01:39
Vinoo Varghese
Right, right. And and I'll say this, tonight and I think I've said this the two other times we've been on, is that personally, I'm a never-Trumper. I voted for Hillary Clinton. I voted for Joseph Biden. Um, I do not like him personally. I don't have a, I had some, many of his policies I didn't have a problem with per se, but you know, he, he's just, he's such a polarizing figure. And when you're here in Manhattan and I looked at the stats actually recently because of something else I'm working on. So,
00:02:18
Vinoo Varghese
in In the 2020 election in Manhattan, 87% of the voters voted for ah ah Joe Biden.
00:02:21
Dan Wiig
Mm hmm.
00:02:31
Vinoo Varghese
So when you look at that and you add the fact that he's Donald Trump, the most polarizing figure in American history, I mean, who can you say is more polarizing than Donald Trump, right? No one. So you have the most polarizing figure in American history, the most reviled man walking around the streets of Manhattan, where I, where my office is on wall street at two wall street, you know, 10 minute walk to the courthouse.
00:02:48
Dan Wiig
Yeah.
00:03:05
Vinoo Varghese
And you have a a population, the citizenry that's nine to one in favor of Biden. You should have, this case should have been moved to the suburbs. It should have been moved where it's purple. I mean, I actually, Biden has a bit of an advantage in, in Nassau or, uh, in, in, in some of the Northern counties, but at least it's, it'd be much more of a fair shot and the jury selection, my God jury, a jury that I had going right before the Trump trial took longer than
00:03:48
Vinoo Varghese
the Trump jury selection process. I mean, that's a joke. That's like federal jury selection, which is an absolute joke. Okay. So state jury selection is supposed to be much more, much fairer and federal jury selection. Let me tell you what federal jury selection just as a contrast.
00:04:05
Dan Wiig
Sure.
00:04:06
Vinoo Varghese
Can you be fair? Sure. Okay. You're fair. Thanks. That's basically federal jury selection. Lawyers don't get to what ear. Right?
Jury Selection and Judicial Bias
00:04:14
Vinoo Varghese
On the statutes, you can request that you do, and I always do, but we get rejected. Federal judges think, oh, I can do this, right? State judges are supposed to be fairer, right? I mean, you have a jury selection process. You have time, and and ah attorneys can ask questions. But he yeah he had one problem. I think Todd Blanche, it appears to me, and I had a i know him.
00:04:41
Vinoo Varghese
We actually graduated in law school, I think the same year he went to the US attorney's office, had a case against him when he was in the USA, a pretty big case actually. But I don't know if he was equipped to do a state jury selection because in federal jury selection, you don't get to talk nine times out of debt. I have picked a couple of federal juries because I've had judges allow me to do so, but not here in Southern or Eastern District of New York, where he's from.
00:05:11
Dan Wiig
Yeah.
00:05:12
Vinoo Varghese
He's from the Southern District of New York. so Just to give you an example, last year I tried a case in SDNY right up the street. I asked the judge to to pick the jury. and The judge said to me, he goes, I don't think anyone's picked a jury in this courthouse in 100 years. so ah yeah they I was rejected. But I don't know if he understands the intricacies of of state jury selection. But even then, you have this judge who I don't, it was a bad draw for Donald Trump. And I know we're going to discuss some of the legal ah rulings, but Judge Marchand is a guy that all you need to to think about is the soccer mom battle. ah Are you familiar with that?
00:06:07
Dan Wiig
No.
00:06:08
Vinoo Varghese
Yeah. So if you Google soccer mom, madam and more Sean, you will see that judge more Sean was reversed by the first department for putting excessive bail on this woman from Long Island who ran a brothel here in Manhattan. So she put, he put like a $2 million dollars bond on her. They, they, his lawyers went to her lawyers went to, First Department, they found it excessive and inappropriate. I think they reduced it down to $400,000. She has a ah case, a civil case pending against him for apparently not allowing certain documents to be transferred over. I don't know the full nature of it. But that i that case, when it came out, I remember reading about it and hearing about it. And I also had, I had limited dealings with him most of my work.
00:07:05
Vinoo Varghese
is in federal court, as it's been for the last 10, 15 years. I come from the state court system, but I remember i hey appearing before him as a you know newbie defense lawyer sometime in in my career in criminal court. i knew I know his wife. She is a prosecutor with the attorney general's office. I had a case against her. So you know my dealings with Michonne were limited and uneventful. but I, that soccer mom Madam case is one that stuck out in my head. So when the case went to him, when he had the previous case and, you know, he sentenced Weisselberg to prison. I knew Trump had problems to begin with, uh, uh, with the judge and with the County of New York or the borough of Manhattan. Uh, he, he was never going to get a fair shake here.
00:08:00
Dan Wiig
So we'll get into that and other things.
Introducing Vinu Varghese and Public Opinion on Fair Trials
00:08:02
Dan Wiig
So I'd like to welcome our listeners to Amicus Curie, a nightglass series of casual, comfortable and friendly conversations with leaders of the bench bar and those who serve the legal profession. I am thrilled today to welcome back Vinu Varghese. Vinu is one of the nation's top white collar and criminal defense attorneys and a former prosecutor. His accolades include serving as a visiting faculty member at Harvard Law School's trial advocacy workshop. He's been named in the national trial lawyers top 100 list, ranked as a New York Metro super lawyer for the past eight years, obtained the Martindale Hubble AV preeminent rating for six straight years.
00:08:35
Vinoo Varghese
10 years.
00:08:36
Dan Wiig
Excuse me, I got that wrong.
00:08:38
Vinoo Varghese
we I needed to update the bio.
00:08:39
Dan Wiig
yeah And early in his career, he's been recognized by the New York Law Journal as a rising star. The New York Times, the Wall Street Journal, the New York Law Journal, and Law 360 have all quoted him for his vigorous defense of his clients. He is a regular commentator on domestic networks ranging from Fox to CBS to CNN and international networks ranging from the BBC to Sky News Arabia. We are privileged to have him back for the third time on our show. So welcome back. This is the second episode where we're talking about Donald Trump who can't seem to stay out of the news.
00:09:11
Dan Wiig
And as a reminder to our listeners, he is sharing his own personal opinions, not necessarily those of Nykla, its officers, its directors, its members, its members it's ah staff, or me for that matter. So Vina, welcome back and thank you for joining us.
00:09:25
Vinoo Varghese
And probably many of the nightclub folks would not necessarily agree with my views for, you know, the ah offices in Manhattan and remember what we were just talking about.
00:09:30
Dan Wiig
well Well, so I want to go with you said about people saying, you know, Bill Cosby, Harvey Weinstein shouldn't get a fair trial because I don't like them.
00:09:34
Vinoo Varghese
so
00:09:41
Dan Wiig
I was speaking to someone that I know about the Trump, this Trump hush money case. And this person said to me, the jury got it right. Now, sometimes juries get it wrong. Sometimes they get it right. That's a probably another topic. And I asked her specifically, what did Trump
Details of the Charges Against Trump
00:09:59
Dan Wiig
do wrong? What was the crime? And she couldn't answer me. i attribute that to a couple of things you alluded to it before i think the charge is a bit muddy and a bit complex i'll ask you to explain it shortly and as you and i have discussed on this show
00:10:13
Dan Wiig
depending upon the cable news channel that you turn on you're going to get you're not going to get the full story you're going to get a slant unfortunately talk to us a little bit about what The former president was charged with beginning with the what is a misdemeanor of falsifying business records. The statute of limitations has actually expired or expired before Trump was charged. Talk to us about that.
00:10:37
Vinoo Varghese
So that's one of the things that I brought up on multiple news programs regarding the statute of limitations. The charge itself is it kind of mundane, but what raised it to a felony or in the eyes of the district attorney's office and Judge Marchand was that he was trying to conceal i or used to conceal his activity or involvement in another crime. So that elevated it to a felony, still a low level felony. If I can just say though now that he's been convicted 34 times, what's the appropriate prison sentence for a person who's been convicted not once, but 34 times of felonies?
00:11:22
Dan Wiig
So let's clarify the the business record.
00:11:22
Vinoo Varghese
and smart
00:11:24
Dan Wiig
So the business record was the Trump Organization made payments to Stormy Daniels to essentially silence her about the alleged ah fair I say alleged because I think the former president still denies that he had a relationship with her. In fact, I think he denies that he even knew about the payments. But be that as it may, the payments were to basically keep her quiet. That's the falsifying the business record. So whatever they said on the paper, the paper, the document said payment to to to to venue for his legal services, but they were actually going to storming.
00:11:56
Dan Wiig
I'm being silly there. But that's so that's that part. Then we have butgainst the other crime.
00:12:01
Vinoo Varghese
Hey, don't mix up me and Michael Cohen, all right?
00:12:02
Dan Wiig
Okay, so now what's the next part? So that's that party, you sort of conceal this, but there's there's more to the story.
00:12:08
Vinoo Varghese
Well, I think you've pretty much nailed it.
00:12:10
Dan Wiig
Tell us what more to the story is.
00:12:15
Vinoo Varghese
I don't know if there's really much more than that, except that what it was designed to conceal. So when you think about this, this is a normal thing and people find it distasteful, but this is a normal thing. I mean, when you look at the amount, $150,000, That's a nuisance value case, right? So if you speak to employment attorneys and they talk about, okay, what's a case worth in terms of, let's just say, and this is not a sexual harassment suit, but in terms of sexual harassment, the numbers can be much more depending on proof issues. So for Donald Trump, $150,000 is a nuisance value, judge, payoff, right?
00:13:00
Vinoo Varghese
and nothing illegal about it, right? So how do you know and how do you prove beyond a reasonable doubt what the underlying reason was? Was it to conceal or to prevent the election from from losing the election? And there's a fundamental problem. The dates of the actions occurred after the election.
00:13:28
Dan Wiig
So if the if the argument that is he wanted to conceal, he wanted to silence Stormy Daniels because he was afraid that if she went public about this alleged affair, it could hurt his chances among some people, some people probably wouldn't care, but some people might. So this is sort of the, the this is the election interference, right? This is where we're getting into, I was, in I was concealing some fact about me to the public so people would not dislike me and not vote for me.
00:14:00
Dan Wiig
um I'm being a little, yeah.
00:14:00
Vinoo Varghese
Right, but the but the alleged infractions, so what they alleged occurred in 2017 after the election.
Statute of Limitations and Fairness
00:14:07
Dan Wiig
Right.
00:14:07
Vinoo Varghese
So the dates of these you know payments or the the records of the falsifications occurred after. So there's an issue right there, but then they you you brought it up in the beginning. The statute of limitations is is a major issue for the prosecution because they're relying on COVID lockdown exemptions or exclusions is probably the more correct term. So during lockdowns, Cuomo suspended the statute of limitations, Governor Cuomo and speedy trials. So, you know, this was thing that this for something that I railed against because, you know, while the grain jury was shut down, I mean, prosecutors could have still done things
00:14:56
Vinoo Varghese
Remotely they could have brought cases and it was basically but for the fairness to prosecutors and state prosecutors in fairness to them Okay, let's give them a little break. All right during this period in 2020 in 2021 if he couldn't have brought an indictment because the courts were shut down Okay But why does that excuse you in 2022? Right as a five-year statute limitations on this thing Why do you get the benefit of that? They didn't bring this case until 2023, right? After Alvin Bragg took office. So you've got to look at this and go, all right, this is really fishy. Because think about it. The feds convicted Michael Cohen. And according to the plea agreement, which I've read, I read back in 2017, 2018, when
00:15:53
Vinoo Varghese
When he he pleaded guilty, I went on numerous ah programs talking about it.
00:15:57
Dan Wiig
and And just for our listeners, what did Michael Cohen plead guilty to?
00:16:01
Vinoo Varghese
ah ah Multiple charges, including a lot of it was tax fraud. you know He concealed $4 million. dollars I mean, he just got a lot of stuff, but part of it, part of what he pleaded guilty to is was involved Individual number one who is president of the United States. I remember reading this is very it was humorous, right?
00:16:26
Dan Wiig
Okay.
00:16:28
Vinoo Varghese
ah who was a candidate, you know for for President so he was convicted of making a Illegal payment to stormy damsel to stormy Daniels yet While the feds named we knew who individual one was They never charged him now the argument that you couldn't charge a sitting president fine
00:16:46
Dan Wiig
Right.
00:16:53
Vinoo Varghese
but nothing prevented them from charging him once he left office, right? And the feds never did. So you know that was part of it. So the the state back in 2018 could have jumped all over this, but Cy Vance knew better, right? And he was like, I'm not taking on this case to lose. So, or at least lose procedurally, right? He he wouldn't have lost at trial. He's guaranteed to win a trial. And people get very upset when I
Importance of Fair Trials for Politicians
00:17:27
Vinoo Varghese
say this. right And this brings us back to Weinstein and Cosby and all this stuff. People don't get that if if those guys don't get fair trials, what's going to happen to the middle class person or the poor person who can't afford the kind of lawyers that Weinstein and Cosby and Trump can hire? What's going to happen to them? If the state can do this to these guys,
00:17:52
Vinoo Varghese
Right. Cosby's case for state of Pennsylvania or the Commonwealth of Pennsylvania. I mean, Cosby, he's a free man now. Weinstein got his conviction reversed correctly.
00:18:00
Dan Wiig
Right.
00:18:02
Vinoo Varghese
Right. So, you know, what are you saying about the system? That if you can excuse this kind of bad behavior on the part of prosecutors, assistant district attorneys, you know, ah because it's Donald Trump, then what kind of protections do you have for the rest of us? who don't have a billion dollars and and have a war chest to fund lawyers, to defend defend yourself, and then still get, am I allowed to say screwed? You know, I still get screwed.
00:18:34
Dan Wiig
so would it So now going back to Trump, so he has this falsifying business records, but it's connected to another crime. What is that other crime?
00:18:43
Vinoo Varghese
We're not sure, right? So like he, Albert Bragg said this was an an election interference case, but did he mean State election law, did he mean federal election law? And if you take those, oh, did it mean some type of tax fraud, right? So if you take what was said publicly, put that aside. The district attorney's office, the prosecutor did not have to show what the underlying crime was. So, you know, your friend who said, did the jury get it right? Perhaps they did.
00:19:21
Vinoo Varghese
because of how they were charged and because of the trial that wasn't really a trial that was presented to them. So even putting aside the Manhattan problem, the issue is based on how they were charged, it created all sorts of problems for Donald Trump that I think were unduly prejudicial and improper. And I believe we'll get him reversed, not at the first department, Because this and this goes into politics. You have to understand like there's nobody in the first department, which is the intermediate appellate court, who's going to go out on a limb to reverse Donald Trump's case. Let me give you a case in point. They were unanimous in rejecting 5-0, rejecting Harvey Weinstein's appeal. But then it goes to the court of appeals, at New York's highest court.
00:20:21
Vinoo Varghese
and they reverse for three. Now you think, oh, that's so close.
00:20:25
Dan Wiig
it's pretty close it's pretty is pretty close right
00:20:26
Vinoo Varghese
Sure, but you've got to know who's voting and who wrote the dissent, prosecutors. So the majority opinion was written by, in my view, the best just justice on the New York state court of appeals is judge Jenny Rivera, who was a Cuomo appointee. and was considered too liberal. because She was a law professor to be on the bench, and yet she was the one who wrote the majority opinion in the Weinstein case.
00:20:55
Dan Wiig
Right.
00:21:01
Vinoo Varghese
I mean, people are mad about that. And she will probably be the person that uh, writes the majority opinion, you know, reversing Trump's conviction because there's something that these guys know. And I think that they have at the court of appeals, at least people like Rivera understand that if they don't do the right thing, federal court will. Right. Because then he can take a habeas and go to federal court and yeah the the due process violations are just staggering here.
00:21:37
Dan Wiig
yeah yeah so Yeah, let's talk about some of these issues that that might might be subject to ah reversal, as as you pointed out.
00:21:37
Vinoo Varghese
ah for for again, you know that Trump had to experience.
00:21:47
Dan Wiig
Again, the charges itself. so My understanding, and you can correct me or fill in the blanks, the Federal Election Commission declined to, I'll use the word prosecutor, that may be the proper term, President Trump for this Stormy Daniels
Differentiating Between Agencies in Prosecutions
00:22:03
Dan Wiig
concealing. they I guess to them, it was an election interference. And I have to sort of compare this to, and I don't want to sound sort of negative here, but There's a lot of politicians in the history of this republic who have tried to conceal less than stellar aspects of their background from the public because I'm thinking Bill Clinton had those who alleged to have had, I'm not talking about Lewinsky, I'm talking about before he, when he was running for president, women who claimed to have a relationship with him, he clearly tried to cover it up. George W. Bush had a DWI that he tried to cover up or tried to conceal, but it came out on the eve of the election. They're not the only ones.
00:22:40
Dan Wiig
what
00:22:40
Vinoo Varghese
I think John Edwards is the famous case.
00:22:42
Dan Wiig
John Edwards with his, the the the I think he had a daughter with with her another woman or something to that effect. So this same sort of thing here, it's I guess the Election Commission doesn't consider those type of things election interference, meaning a politician trying to conceal less than stellar aspects of their life.
00:22:47
Vinoo Varghese
Yeah.
00:23:02
Vinoo Varghese
Well, look, they they wouldn't ultimately be the one
00:23:03
Dan Wiig
For those who are just listening, Vinu is just shaking his head like, I don't know, but anyway.
00:23:07
Vinoo Varghese
Look, it's not up to the FEC to prosecute, right? It's up to the DOJ and the U.S.
00:23:12
Dan Wiig
Right.
00:23:15
Vinoo Varghese
Attorney's Office, you know, ah through the approval of Maine Justice to bring bring a prosecution. And when you think about d where our republic has gone, let's bring us back to 2016. in 2016 during a debate with Hillary Clinton against Hillary Clinton. He made a comment, which got a lot of publicity about putting her in
Dismissal of
00:23:48
Vinoo Varghese
jail.
00:23:48
Vinoo Varghese
that if she and And so there was so much rhetoric and things on social media about, hey, you can't vote for Trump because if you do, this will turn into, United States will turn into a battery, a banana Republic with his, he's going to,
00:23:49
Dan Wiig
Right right Mm-hmm
00:24:07
Vinoo Varghese
jail his political opponents. Four years later, there were prosecutions of Hillary Clinton. There were prosecutions of his political opponents. and In fact, some some Republican congressmen were charged under the, including one from upstate New York while while Trump was president. ah Could we stop for a second? I just want to, my light, as the light
00:24:34
Dan Wiig
So you said that the jury may have gotten it right based upon the instructions, but there are those who say there's a problem with the instructions and what you mentioned earlier, there's the misdemeanor falsifying business records and there's some other, maybe it's an election crime, we don't really know what it is.
00:24:39
Vinoo Varghese
Yes.
00:24:53
Dan Wiig
Is that right for a problem on appeal?
00:24:56
Vinoo Varghese
Absolutely. I mean, what I'm saying that they got it right, they got it right based on how they were instructed and worked out a couple of hours.
00:24:57
Dan Wiig
Okay.
00:25:01
Dan Wiig
Structed, right.
00:25:03
Vinoo Varghese
I mean, but the, the issue.
00:25:04
Dan Wiig
right
00:25:08
Vinoo Varghese
is that the instructions were improper. and This is a case that should have been not should have been dismissed on statute of limitations grounds because the the COVID lockdowns
00:25:24
Vinoo Varghese
Exemptions, exclusions were there to protect prosecutors, but they shouldn't have been able to use them as a sword to bring a prosecution years later. right So that's the one big thing. The second thing is, how do you get to the point of saying that you don't have to show what what the underlying crime was? right i mean and And if you're a defense lawyer, as Blanche you know had to deal with, if you're the defense lawyer in that case, what kind of arguments do you make to the jury? Hey, do you now have to defend against every potential crime that was put out there? right that was That the jury could infer that he was being involved. And when you look at you know Stormy Daniels and what was said
00:26:19
Vinoo Varghese
the The problems, and I don't know if Blanche did this, I have no idea. After Stormy Daniels' testimony, it was reported that she spoke like she was a real victim, that she was overwhelmed physically by Donald Trump. But just a few years earlier, back in 2017 to 2018, when this happened, she was on Bill Maher's show, and she talked about it like it was a wild old time. And and she had fun and she went out of the way to say she wasn't a victim in any way that she's not part of the me too ah Movement and there's clip and Bill Maher played it and he goes this is a problem and I wonder if Blanche and his people saw that or didn't they know about that? Because if they had played that interview clip
00:27:09
Vinoo Varghese
You look at Stormy Daniels and how she testified, or apparently, from what I read of how she testified, that she came across like this was a brutal, like it was brutality, or she was brutalized, opposite from how she testified when she was on Bill Barr.
00:27:27
Dan Wiig
Right.
00:27:27
Vinoo Varghese
No, I'm sorry, not testified.
00:27:28
Dan Wiig
Right, but right.
00:27:28
Vinoo Varghese
He had an interview on. And that should have been allowed to, I don't know. But if they missed that, they missed that, it's waived. So there's just a number of issues and a number of issues with Cohen. The problem that Trump faced is that as bad as Cohen was or is, he was Trump's lawyer, right? So it's guilt by association. So that worked against Trump. Those are things that actually work in the favor of the prosecution in a way, right? Because they can say, look, the jury had the opportunity to see Cohen and they believed him.
00:28:07
Vinoo Varghese
you know and and they had a full and meaningful opportunity. The the defense had a full and meaningful opportunity to cross-examine them. But I do believe that the vagueness or the the unknowing of what the underlying charges are, not having to prove that, created too high a hurdle for the defense. I'm also saying practically that, or realistically, this case should have been moved, but the appellate division refused to do so. And they did it in this brilliantly worded disillvision decision that said motion denied with no expert explanation whatsoever.
00:28:45
Dan Wiig
There was no explanation. Talk to us a little bit—let's stay on that point for a second.
00:28:48
Vinoo Varghese
And that's all too common in the first department.
00:28:52
Dan Wiig
Talk to us a little bit about what is typically the basis to change venue in a trial.
00:28:52
Vinoo Varghese
Yeah.
00:28:58
Dan Wiig
What are the arguments that you as a defense lawyer would make and what does a court typically consider? So to to so frame it, you mentioned earlier when we started the conversation how Manhattan is primarily democratic Certainly they're not voting for Trump. um Personally, I would hope people could check their political differences aside and look at facts, but that might not be that might be pie in the sky, you know television thinking, you know nice little sitcoms, but not reality. um Talk to us a little about the arguments that you make when you're when you're looking at the change menu.
00:29:29
Vinoo Varghese
Oh, look, the reality is these motions are rare, right? How often do you hear about a motion to change venue in New York City? The last one I was aware of was Harvey Weinstein's case.
00:29:43
Dan Wiig
which was denied as well.
00:29:43
Vinoo Varghese
with Right.
00:29:45
Dan Wiig
but Yeah.
00:29:45
Vinoo Varghese
You know, to move it to another place. And I think that that was a good basis to
Case Comparisons and Trial Venue Concerns
00:29:52
Vinoo Varghese
do so. The last time I remember hearing about it for Weinstein was the case of Amadou Diallo. when I was in law school in the Bronx and the 41 shots, think the motion in that case was granted to move it to an upstate place because they didn't believe that those four white cops would have stood a fair chance in the Bronx. I think that was the right call ah you know for that case. And ah and ah and the the problem is that people are too enamored with the concept
00:30:28
Vinoo Varghese
of justice and saying well jurors on appeal are presumed to have followed the instructions given to them by the jury so that's a high burden to overcome so I don't think he's going to win on that issue because it's a if you were to win on that issue then basically the New York's High Court was would be saying that yeah you know it it It was too much for a jury to decide.
00:31:00
Vinoo Varghese
I think he'll win on other issues. So the other issues that I talked about.
00:31:04
Dan Wiig
Yeah, let's talk about Stormy Daniels for a second. So her testimony, she went into detail about her alleged liaisons or liaisons. I don't he think they were with with President Trump. I say alleged again because I think he still denies it. What relevancy did getting into details about what pajamas he wore have to do with the alleged crime of falsifying records and trying to sway the election, however you want to phrase the wrong that he did?
00:31:35
Vinoo Varghese
So I guess, right, right.
00:31:35
Dan Wiig
He wasn't on trial for adultery, I'll put it that way. Yeah.
00:31:38
Vinoo Varghese
But it became that too, right? So the argument for the prosecution is that, well, they're denying, the defense has denied that they engaged. Todd Blanche denied that President Trump had engaged in an affair with Stormy Daniels. So the prosecution's argument is that she must be allowed to go into detail. Do I think that that's necessary? No. I think she could have said, yeah, we had sex with him and you know didn't need to say much more.
00:32:11
Vinoo Varghese
right People can have their imaginations.
00:32:17
Dan Wiig
That's right. That's right.
00:32:18
Vinoo Varghese
This is a porn star.
00:32:18
Dan Wiig
Yeah.
00:32:20
Vinoo Varghese
To the extent that you want to think about Donald Trump having sex, go for it.
00:32:21
Dan Wiig
Yeah.
Judges' Backgrounds and Defense Challenges
00:32:26
Dan Wiig
Now, one of the other issues was going back to the election law violation. I believe the prosecution repeatedly stated, or maybe repeatedly is is the wrong adjective, but they've stated that it was a fact that President Trump committed an election law violation, which probably goes to the whole, you know, concealing from the public, so, you know, people wouldn't not want to vote for me. And the defense had a witness who was going to who's going to testify that President Trump didn't, in fact, commit an election violation, and that person was not permitted to testify.
00:33:01
Dan Wiig
That seems like a big deal to me, because if it's about the underlying, you know, the other prime, talk to us a little bit about that and how that might be addressed on appeal.
00:33:03
Vinoo Varghese
is Big deal.
00:33:08
Vinoo Varghese
So I know, I know the defense proffered a witness, um, from who was a former f FEC official. And that person was not allowed to testify. See, one of the problems that prosecution minded judges like Rashad, who's an ex prosecutor, I'm an ex prosecutor too, but I'm not a judge.
00:33:32
Dan Wiig
Right.
00:33:32
Vinoo Varghese
And many of these people, who come from that bent, whether it's on state court or federal court, don't get the huge home court advantage that the prosecution gets, right? You have, in theory, a presumption of innocence, but that doesn't exist in reality. No defendant is presumed innocent. No one thinks that when somebody is sitting in that defendant's chair
00:34:03
Vinoo Varghese
that somebody didn't do something wrong, right? So the defense actually has the burden of proof. They have to disprove the presumption that's in favor of a person who's been charged. I'm sorry, in favor of the prosecution against the person who's been charged.
00:34:19
Dan Wiig
Right.
00:34:22
Vinoo Varghese
Nobody wants to admit that this is reality, but that's reality. So the only way you can win as a defense lawyer is by going on the offense and really outwardly demonstrating your client's lack of guilt or in many cases his innocence. So in this situation, you have the prosecution making arguments. Why in God's name, we should not be allowed as a defense attorney to call somebody who has relevant experience, right? And the what the counter to that, the prosecution and 99% of prosecution by the judges, which are unfortunately most of the judiciary at both the state and federal level, will say, you don't need somebody else to to to argue that. You can argue that as a defense lawyer.
00:35:13
Vinoo Varghese
That's their response. It's like, no, this is going too far afield. It'll confuse the jury. I mean, if the prosecution is making certain claims, then you should be able to rebut that. I've had this happen to me in in federal court in the last year where the government was charging my guy with money laundering, and they made an argument that he was a Engaged in foreign and legal commerce and I had an expert lined up who was going to explain that they said he was a former IRS criminal chief that Know that this doesn't mean that he was engaged in trying to explain some of his foreign commerce bet It's precluded. That's an issue on my client was convicted. It's an issue I'm gonna appeal my client got nine months like He was facing a lot more and it kind of tells you or the judge even knows that that was a problem
00:36:08
Vinoo Varghese
Right. And I'm just waiting to see how Rashan will ah sentence Trump. I do think now that because he's been convicted of 34 counts, Rashan is going to have, is not only is going to have to, but wants to, I mean, let's start with the first one. He wants to get this guy jail. And I think what it'll end up doing is a 90 day split is my prediction. 90 days in jail. five years probation now he can give up to i believe four years or he can run it consecutively but that would be it you know insane if he did that so we're talking okay he's gonna get four years i think he'll get 90 days of jail why do i say that july 11th is a month away less than a month away the election is in november 90 days sentence at rikers island which would be served at rikers island you do 60
00:37:07
Vinoo Varghese
So he would be out by September, giving him two months to campaign. And, uh, I think that that's the way that Michonne will run it. I don't believe he'll give him something that exceeds, he could give up to six months on split sentence.
00:37:22
Dan Wiig
And explain to you know our listeners, so the appeal process doesn't stay, ah if if President Trump is sentenced to jail, the appeals process wouldn't stay his jail time?
00:37:22
Vinoo Varghese
Right.
00:37:36
Vinoo Varghese
No.
00:37:36
Dan Wiig
No.
00:37:36
Vinoo Varghese
I mean, it can, but here's how that works.
00:37:40
Dan Wiig
Okay.
00:37:42
Vinoo Varghese
Bail pending appeal, right? Rashan's not gonna, I mean, look, could Rashan say, I'll stay the sentence pending appeal? He could, but then he'll be going against the standard operating procedures for every New York state court judge, because the he already has to some extent. He let Trump walk out of the courtroom. The standard operating procedure for New York state judges is that once you're convicted, regardless of what you're convicted of, you no longer enjoy the presumption of innocence. And therefore you're immediately taken into custody. He allowed Trump to walk out. I think in part because he didn't anticipate the verdict coming back on Thursday. I had predicted that there was going to be a verdict before Friday because there was no way that jury was coming back after the weekend. They had been on that case for five weeks.
00:38:34
Vinoo Varghese
They wanted to get the hell out of there. They were going to convict. It was just a, it was a foregone conclusion. So I was actually surprised it didn't happen the first day, but it happened the second day. Right. So, um, I think they were a little bit surprised. It was the end of the day. And so I was like, all right, I was going to let him, you know, stay at liberty and stuff. So I think that, you know, his lawyers, if he is, if Mashant sentenced him to incarceration immediately, which I think there's a better than 50% chance that he'll do that. His lawyers can go immediately. They should have their papers prepared to go for bail pending appeal. The way that works is that you go before a single judge of the appellate division, first department, and you make that application. And here's how you can also do it. If they know that there's somebody on that bench who think might be open to it, you can actually make that motion directly to that one specific judge.
00:39:33
Vinoo Varghese
And so, but that one judge gets to decide. And it's my view there is no one on the intermediate appellate court who is going to have large enough fortitude. I don't want to use certain words that we can't use out of that glove.
00:39:49
Dan Wiig
okay
00:39:50
Vinoo Varghese
Podcast, you know by upset your executive director and you forgot to mention my friend that I was Chair of the solo and small firm practice committee for four years Back like 2007 2011.
00:40:00
Dan Wiig
That's right. That's right. That's right.
00:40:04
Vinoo Varghese
But anyway, my point is they ah they should have their papers ready, which means they have their brief ready So what but the problem for them is a I don't think there's a single judge on that bench The intermediate appellate court who's gonna grant him bail pending appeal because they don't want to be known as a judge.
High Drama and Political Impact of the Trial
00:40:23
Vinoo Varghese
Let Donald Trump out in Manhattan. And then two, the standard on for bail pending appeal is a likelihood of success on the merits. So what judge in the first department, Manhattan is going to say, yeah, you know, he's got a likelihood of success on the merits. I mean, if, if one judge did that, I'd be surprised. Very surprised.
00:40:50
Vinoo Varghese
So I think there's a good chance that Donald will see Rikers Island, you know, with his Secret Service agents. I think it's high drama.
00:41:05
Dan Wiig
It is high drama.
00:41:05
Vinoo Varghese
That's what this is. This this whole thing is high drama. And Brad just, that you know, solidified or guaranteed his reelection. right He guaranteed the reelection by bringing the case. I think no one's going to beat him now. But certainly now that he convicted Trump, the rest is on the judge, right? So he convicted Trump. Nobody's gonna care if he gets the case reversed. Nobody other than people like me, legal circles who really care about the process of the system. No one in Manhattan is gonna care. I mean, I live in a work in Manhattan, so I care, right? But other than me, no one's gonna care.
00:41:49
Dan Wiig
Let's talk about Michael Cohen for a second. So as you mentioned, Trump's lawyers, so, you know, there's an, you know, ah an intimate professional relationship there. They had been together for a long time. I remember, you know, catching Michael Cohen on TV defending Donald Trump during some of the 2018 election against, you know, certain you know allegations of Trump's bravado or whatever it would have you. um the it And correct me if I'm wrong, if you
00:42:14
Vinoo Varghese
You talking about the bus incident with the interview? Is that what you're talking about?
00:42:17
Dan Wiig
Well, it was the but there's a lot of things.
00:42:18
Vinoo Varghese
Yeah, there was a lot,
00:42:19
Dan Wiig
But the crux here, I think, with Cohen and Trump is whether or not Trump knew or directed Cohen to make these payments. I think i think that's some substance. you know Trump says, I didn't know anything.
00:42:31
Vinoo Varghese
yeah.
00:42:32
Dan Wiig
Cohen says he told me. Um, but no one corroborated Cohen's testimony. So it was Cohen saying it was really Cohen against Trump Cohen Cohen, who was a convicted felon said, Trump told me to do it.
00:42:43
Vinoo Varghese
Invicted of perjury as well.
00:42:43
Dan Wiig
Trump said drink their perjury. Um, does that have any play in the appeal or, Hey, listen, if the, if the jurors believed him, the jurors believed him, they assessed him and they said, this guy's, we find this guy, at least in this instance, credible.
00:42:59
Vinoo Varghese
The latter, which you just said.
00:43:00
Dan Wiig
Yeah.
00:43:02
Vinoo Varghese
So credibility determinations. are left to the trier of fact. So if they found him credible, that's that won't get disturbed. So there's a concept in in appellate jurisprudence called a witness that is incredible as a matter of law. So that would be something for an appellate court could do that and say that He was incredible as a matter of law, meaning there's no way anything he said could remote remotely be true. But that's unlikely.
00:43:43
Vinoo Varghese
yeah The appellate court has the power to sit as the 13th juror and evaluate credibility concerns, but highly unlikely on those grounds.
00:43:52
Dan Wiig
Right. And so the last question about what's on appeal is this instruction that the jurors did not have to be unanimous in their finding about President Trump, but about his you know guilt or innocence in this. Talk to us a little bit about that and how that plays out.
00:44:11
Vinoo Varghese
Well, no, no, I think they didn't have to be unanimous.
00:44:14
Dan Wiig
net
00:44:15
Vinoo Varghese
um They didn't have to agree on what the underlying crime was, right?
00:44:19
Dan Wiig
lying. Right. I'm sorry. Right.
00:44:21
Vinoo Varghese
They still had to unanimously find him guilty.
00:44:21
Dan Wiig
That's what I meant. Yeah, right.
00:44:23
Vinoo Varghese
I mean, that's just...
00:44:29
Vinoo Varghese
There are other types of cases where prosecutors can get away with this. So they may have a a a argument that that's just, you know, that's not for the jury to decide. I think that's fundamentally unfair and creates too high a burden for the defense to overcome. And I think it's a great appellate issue that will be decided by Judge Jenny Rivera and and those who believe that the system is is should be fair. I mean, and mean and and Jenny Rivera is
00:45:08
Vinoo Varghese
liberal as you can get and also Jenny Rivera is it was the sole dissenter in a series of Second Amendment cases that went before the New York High Court in Last September in Albany regarding whether people charged with Who raised the the case of brewing which? invalidated New York's licensing gun regime is In these cases, whether they they were violative of the Second Amendment, she was a lone dissenter who said they were because he said, New York must recognize Bruin. In my world, she's my hero, right? Because she's the only one out there you know arguing for the rule of law. So she's going to have to convince three others to you know hold their nose and find Donald Trump that he wasn't that he wasn't given a fair trial.
00:46:02
Dan Wiig
So, you know, the the final question I was going to ask you and you've answered already how you think this is going to play out. He has no shout out the Appellate Division and then the Court of Appeals and some some level will find him, will sort of reverse this. does What does the Weinstein reversal tell you about how, and I think you've you've you've touched on this, how the court, that court is going to decide Trump? There's but many commentators have said they've they're linking the two that although Weinstein there was it was a malano issue which is not really at play here.
00:46:27
Vinoo Varghese
So, yeah.
00:46:36
Vinoo Varghese
I don't know.
00:46:36
Dan Wiig
But tell me tell me about your thoughts.
00:46:38
Vinoo Varghese
Yeah. Well, I mean, you can argue that it's some some way related with the whole Stormy Daniels and the details that were brought in.
00:46:44
Dan Wiig
Right.
00:46:47
Vinoo Varghese
I think, look, it really depends on what's going to happen over the next
Appeal Process and Legal Strategy
00:46:52
Vinoo Varghese
few years. So to give you perspective on how long this could take Trump to get his name cleared, I mean Weinstein was tried in 2019. He was, his conviction was reversed in 2024. And that's Harvey Weinstein. That's how long that took, right?
00:47:08
Dan Wiig
Yeah.
00:47:09
Vinoo Varghese
And I have a case um with a client and we've gained some notoriety who who has a second amendment case. And that's why I mentioned Jenny Rivera. And you know i've I've told you know him and his followers that it's going to, be a while before we get to Albany. So I think that the Weinstein case should give the Trump team an idea of the timeframe that it could take before it reaches the Albany High Court. And then Trump can, especially if he's put on probation, can take this case to federal court and to a federal hate case.
00:47:52
Dan Wiig
And would that go to the district court or the court of appeals?
00:47:54
Vinoo Varghese
and District court.
00:47:55
Dan Wiig
It goes to the district court, okay.
00:47:55
Vinoo Varghese
first go to district court first a Judge has to make a decision and then they go to the Second Circuit at that point and perhaps the United States Supreme Court depending on how it plays out For no for our wreck Is I'm not a political commentator
00:48:07
Dan Wiig
And you are on record of thinking that this trial solidified the election for Donald Trump? No, okay. His reelection, okay.
00:48:24
Dan Wiig
Right.
00:48:25
Vinoo Varghese
Though I guess I am making a political commentary on Bragg's re-election chances. I think Bragg is going to be, you know, he's got a chance now. Look, when he brought the case, yeah I was like, he guaranteed a second term. Now that he's won the case, irrespective of what I think about the propriety of it, he's now looking at a Morgenthau like rain here in Manhattan, right? He might be there for 30 years if he wants to. So I think he's like, all right, I'm just going to hang out at Center Street for for decades, I think is what's going to happen.
00:49:02
Dan Wiig
I have to correct what I said earlier. I want do want to follow up on one other piece of information that doesn't get too much play out there. That's Cy Vance. So Cy Vance and his team declined, as you pointed out earlier in our conversation, to take on this case. um And there was some bruja, I think there were some individuals in Cy Vance's administration who resigned over that before but some guy wrote a book.
00:49:26
Vinoo Varghese
And some guy wrote a book, I think it was his name. Yeah, yeah.
00:49:28
Dan Wiig
um
00:49:29
Vinoo Varghese
I saw him on 60 Minutes. I can't remember his name.
00:49:31
Dan Wiig
Yeah, so so what can you tell us a little bit about, you know, that the what was going on at that point? is Is it just as simple as everything that you've said today, Cy Van said this is not worth it?
00:49:42
Vinoo Varghese
No, I think that actually they were looking at something slightly different, even though there was probably a lot of overlap. I think that the brags, you know, He's been around, right? He was in the attorney general's office, uh, that he was in the US attorney's office. And now he's the, or he's been the district attorney of Manhattan. I actually met him, uh, for the first time in person back in the summer of 21 at WABC because I sponsored my law firm sponsored the only televised debate, uh, between the, or in person.
00:50:24
Vinoo Varghese
debate between the District Attorney candidates at WABC Radio.
00:50:27
Dan Wiig
Okay.
00:50:28
Vinoo Varghese
So I met him that day, and I honestly thought his opponent, Tali Weinstein, was far more dynamic than him. But you know he came out on top. He had a lot of support. I mean, he had a lot of support a you know backing him. I had all sorts of you know colleagues of mine, friends of mine who had worked with him in the U.S. attorney's office. I never had a case directly against him. I took the case that involved um Trump's lawyer, Blanche. That was originally Bragg's case. It was the case of Dan Halloran and Malcolm Smith, the see ah conspiracy to put a Democrat at the Republican on the Republican ticket for mayor.
00:51:18
Vinoo Varghese
So that was started by Bragg and then continued by Blanche and others. so But I never dealt directly with Bragg on on when he was a prosecutor. so
00:51:30
Dan Wiig
Okay. And on that note, Vinu Varghese, thank you so much for joining us again. To our listeners, thank you for tuning into Miki's Curie. I am Dan Wigg, your host, and that is a wrap.