Tristan Snell Successfully Prosecuted Trump Once, Can It Be Done Again?

0:04Hello, I'm Anthony Scaramucci, and this is Open Book, where I talk with some of the brightest minds out there about everything surrounding the written word, from authors and historians to figures in entertainment, neuroscientists, political activists, and of course, Wall Street. Sorry, I can't resist. Before we get into today's episode, if you haven't already, please hit follow or subscribe wherever you get your podcasts and leave us a review. We all love a review, even the bad ones. I want to hear the parts you're enjoying or how we can do better. You know, I can roll with the punches, so let me know.

0:38Anyways, let's get to it.

0:48Taking down Trump. The thought of that is music to my ears, and I'm sure it may be to yours. My guest today, Tristan Snell, has done it before when he prosecuted Trump University. Let's face it, it's not going to be an easy thing to do, but like Tristan, I believe and know it can be done. So let's see what advice he has for us.

1:18Joining us now on Open Book is Tristan Schnell. He's the former assistant attorney general for New York State, and he's an MSNBC legal commentator. But he's also somebody that's written a very interesting book called Taking Down Trump, 12 Rules for Prosecuting Donald Trump by someone who did it successfully. First of all, thank you for joining us. I thought the book was excellent. Having a life experience about playing a lawyer. I mean, I'm not really a lawyer. I went to law school. I sort of sometimes try to play a lawyer on TV. I found the book fascinating because you got really into the blood and guts of criminal procedure.

1:52You got into some of the miscreant behavior. But also the most fascinating thing for me is what he's gotten away with. That's the thing that I don't fully understand how that happened. But let's start with you. The book is obviously terrific. Give us your background and what led you to prosecuting Trump University in 2011. Well, thank you. So the, you know, the kicker for me was I really wanted to work in government enforcement. It had been something that I had been looking ahead to as I was a younger lawyer. and I got lucky to land at the New York AG's office at a very good time when they had a lot of interesting work.

2:33They usually have a lot of interesting work, but I definitely landed on the right team at the right time. So my second day there, this is in October of 2011, I had taken a year away from law firm life to go work for a federal judge for a year. Coming out of that, I wanted to pivot into working at the government some more. Land at the AG's office October 2011 on my second day on the job. They're like, hey, we got this case. We're not really sure where it's going. And this is really key for people to know is it's not like we came into it being like, we're going to get Donald Trump for something.

3:06We don't know what. That was never it. We had some complaints from consumers. We had an investigation, a sort of set of investigations looking into for-profit education and predatory company behavior in that space. And we were going into this with a blank slate to go take a look at it. And my first job, and I talk about this in the very beginning of my book, is I locked myself in my office for a month or so, just calling people, just having conversations, open-ended, just asking them what happened. And literally saying that alone would often get me ranting or tears, an hour-long conversation, and people were just mortified, embarrassed, upset, angry, all the emotions about how they'd been ripped off.

3:49And these were, mind you, not people that were like Trump skeptics or something like that. These were his super fans that he ripped off. And that was how it started. He's got super fans though. I mean, honestly, I mean, you know, people are like, they bought into The Apprentice. They bought into him as a successful business leader. Trump University, obviously he had these modules where you could buy in, you could go to seminars, But there's an inherent dishonesty that you write about, and there's an inherent smoking gun everywhere. And we know that he's done that in other things, but why were you able to catch him in this particular situation?

4:26Yeah, I mean, I think the thing there was, it was really one of the first times that a major governmental enforcement agency or prosecutor's office went after him in a sustained way and did not stop and did not give up. And though there were moments at which the AG at the time, Eric Schneiderman, paused or almost killed our investigation, it ended up living and getting greenlit and going forward. And that had never really happened before. And that sustained effort, and we got created. I think having the sustained effort and having the folks that I worked for really went to bat and made sure that we were going to be given the latitude to do what we needed to do, it gave me the ability to do things like, okay, great.

5:17We're not just going to go after Trump and then have him stonewall us and then we get no records. We're going to go after all of his vendors and past business partners that worked on this matter, and we're going to go get all the records from them because he outsources everything. It's not a very big operation. And thereby, we were able to get most of the documents that we needed from third parties. I think that was a key thing. And then ultimately, there was, you know, Eric Schneiderman had a lot of flaws. There was a lot that was done there to potentially scuttle this investigation. But credit where credit's due, he did end up pulling the trigger and we filed the suit.

5:51But nobody had really done that before. Trump had managed to get away with it for about 40 years there by co-opting a lot of prosecutors and by promising to support them with campaign donations and so forth and so on. We don't know exactly what was said in those conversations, but we can guess pretty much. And that's how he was able to get away with it. He finally actually faced an office that didn't get bullied or intimidated or co-opted. And I think that made a lot of difference. And once we were able to show the playbook for how to get this done, which is really what the book is. It's really the AG's office playbook for being able to go after him.

6:27Now you see a lot of other folks doing a lot of the same things. You got 12 rules. Yeah. Let's go over some of these rules and apply some of these rules to the current cases. Tell me what people are doing right that are prosecuting Donald Trump now. And if you could offer them any advice to do something differently, what would it be? Yeah, that's a great question. So, you know, I think, you know, and then it's broken into three parts. You got leadership, the investigation phase, and then going public. The leadership part is really about, are you going to bring a case in the first place? So all of the people that are currently bringing cases, by definition, have already passed this test.

7:01Although it was a bit dicey there with like, is DOJ going to bring a January 6th case? For a long time, they actually weren't bringing it. I think the January 6th investigation in the House forced their hand and made it so that they had to name a special counsel. It took a while, but they got to the right outcome. I think that we saw a year go by where Alvin Bragg at the Manhattan DA's office should have been going forward, didn't, saw the blowback. And then, you know, I don't know if he saw the light or felt the heat, but it doesn't matter because he got to the right outcome there, although we had a delay.

7:32I think that was a lot of the, that's where the first three rules cover is that leadership factor. And then we get into the investigation factor. I think that the Mar-a-Lago case, they've been doing a good job going to his vendors. That's rule five is that Trump constantly screws over his vendors and business partners. You go to those people, they can be allies and they can help break open your case. I think that has been true for the New York AG civil fraud case. They got the Mazers, the accountant firm, to basically flip on Trump. In the Mar-a-Lago case, they've been getting a lot of these, like the security cam firm.

8:06I think that's going to end up being critical. They got them to cough up records. They got some other past employees to cough up records. They got other people to basically flip. Those things are huge. I think there's a section on fighting the fight on statutes and limitation. That's a really big thing. The EG and Carroll folks did a good job with that. There's an overall effort to get laws passed to help victims be able to bring lawsuits like this. I also think that, again, the New York AG's office has been fighting the fight on that one with regard to the Trump civil fraud case. You know, other ones about like, how well are you actually communicating your case to the public?

8:43I think all the offices have done a pretty good job of that. They didn't rush their case too quickly. I think everybody has explained their case pretty well. One thing that I think is worth flagging is that when Rule 11 is about Trump lashing out at his opponents at the prosecutors, you got to be able to ignore it and don't take the bait. I'm a little worried about Fannie Willis in this regard in that if she overreacts to this like attacking of her of her and her character that are happening right now that it could be a distraction i think that they need to be a little bit more stoic about just ignoring it and saying he's desperate and by the way who's behind this who's funding it like turn the tables on it and get surrogates out there to talk about it like there's got to be some other effort there if it looks like she's reacting too much it potentially represents a distraction.

9:34It represents weakness too, potentially that Trump will push on that further. You can't show that he's getting under your skin. He's going to come after you. You have to hold firm and just be a bulldozer. You just have to have no emotion and just be stoic about it and keep churning. Let me play devil's advocate for a second. He's got four cases going on right now. Your case was successful. I believe a$25 million fine was paid and you got them out of the foundational businesses or charitable giving businesses. I think they can't do that anymore. That was my colleagues. Yep. They did that. Yep. Yep.

10:10Right. Okay. So it was a combination of those things, right? Because there was some fraud there as well. So you were hitting him from both sides. Yet he goes on to become the president. Okay. Now he's got a documents case where the people at the agency feel those documents move into his bathroom and then our human intelligence is dying in the field. So the agency is not happy with this. They think this is a direct violation. You've got the insurrection case where Mark Meadows is testifying against him in the insurrection case. So that's not a democratically elected, Soros-funded DA, all the talking points.

10:44That's a white guy from the South who ran the Freedom Caucus and was his former chief of staff, chief witness. You've got the Bragg case. We can talk about that. And we've got the election interference case. But then CNN last night, they got the microphone, exit polls. What do you think of these cases? And the people say, ah, you know, that's a political witch hunt. They're going after Donald Trump for political winch hunt, and there's no fairness in the justice system. So how do you rebut that? Why do people think he's going to get off? And why do you think none of this stuff is going to harm him?

11:18I think that's really where the rubber hits the road. You know, it's what is public opinion going to view about this? Because we've got the legal aspect, but we've also got the political aspect of this as well with him likely being the Republican nominee unless something weird happens, which it could. But I think the key there is, yes, there is a part of the public that is going to view these prosecutions as inherently illegitimate. That is probably somewhere between a quarter and a third of the country. It's not any more than that. They're just loud. So it seems like they're bigger than that.

11:53But if you actually do a poll, and people have, that's the most that it is. If you ask people, should actually Trump stand trial or should he be immune? That's actually a good question as a litmus test for, do you think these are legitimate or not? And it's basically two to one. Two thirds of the country think that he should be standing trial, that he should not be immune. Now that doesn't mean all of those people think that he's guilty, but it means that I think first and foremost, we've got to clear that hurdle. Is he actually immune from all of this or is this legitimate? And it's the way this country works and he has to face the music just like any of the rest of us would.

12:30And he's got to go through that process. And he's got to be found guilty by a unanimous jury beyond a reasonable doubt. And that's a very high bar, but he's got to go to trial. So we got to clear that bar first. And we got to remember, it's really about two to one that most Americans two out of three believe that he should actually be facing the music here. Now, then if you ask people, will he get off? It's actually flipped. Two out of every three Americans believe that he's going to get off. Only a third of people actually believe that he's going to face consequences for these crimes. So there's this group in the middle that basically thinks he should go to trial, but they don't think he's actually going to get convicted.

13:11And some of those people think he's guilty and some of those people think he's not. That's the part of public opinion that we don't know where they're going to land yet. They believe that these trials should happen, but either they think he isn't guilty or they think that he is guilty, but they're cynical and pessimistic about whether or not he's actually going to face any consequences here. A lot of why I wrote this book was to give people a roadmap for how these things can unfold and to give people some sense of cautious optimism that's grounded in reality. You actually can bring a big case like this against a big, powerful, seemingly invincible target like Donald Trump and win.

13:47It takes a lot of time. It takes a lot of resources. It takes a lot of slogging and hard work that is not sexy. But I believe that a lot of these cases are, in fact, achieving all of that. And I do believe one, at least one, and probably more of them are going to result in convictions. But it is going to be interesting to see how this plays out. Because again, even some of the people who think he should face accountability don't think he ever will. And that pessimism is a problem because it shows a crumbling lack of faith in our system. And if people don't believe in the system, that could really spiral.

14:24And that makes me worried. But I do believe these cases are coming in the nick of time to hopefully restore our faith in our system. So let's talk about the timing, if you don't mind, Tristan. So the timing is such any of these cases come to fore before the Republican Party's convention in late August? I believe that the DOJ J6 case, the one that's going to go to trial in D.C., I think it's going to happen either on time or with maybe a week or two to late. That's it. I think it's coming. The Supreme Court is going to be deciding. First, we're going to hear from the D.C. Circuit. Then we're going to hear from the Supreme Court on this immunity question.

15:01It was engaging in presidential acts when he did the things that are alleged against him in that criminal case. I believe that the courts are going to say very firmly that those are not presidential acts, that these criminal acts are kind of by definition, not acts that he was engaging in as in the office of the presidency, and that there's no immunity for ex-presidents. So just because he did it while he was still in office doesn't mean that he's immune from consequences for it forever after. I don't think that's going to delay things too much, if at all. And I think we're going to see that case start right now.

15:37It's supposed to start oral arguments March 4th. Maybe it's mid-March instead, but I think it's going to happen. I think we're going to see a verdict in that matter. And I think it's going to be conviction on at least one count, probably multiple by, say, mid-May, maybe even a little earlier than that. So he's now a convicted felon. That stops him from getting the Republican nomination? No, right? These people don't care, right? I don't think it does. I don't think it does. I think that unfortunately, there's still too much of the party that is, I think, scared of him. It's actually - Yeah, no, there's no question.

16:09They're a bunch of babies. This guy, Kevin McCarthy, he's like a jellyfish. I mean, he could have put Trump through the ropes on January 7th, 21, using him a jellyfish. Him and McConnell could have ended him right there because I think that if he had been officially impeached and convicted by the House and Senate at that point, I think he would have been done. The nonsense that we're dealing with as a society would have been over. There's other nonsense and there's other nutbags, but this is the biggest nutbag. Okay, so he gets convicted likely. The documents case goes after the election though, probably, right?

16:41Sadly, yes. I think that that one probably is, that's just getting delayed, delayed, delayed. I think the Atlanta case might go to trial this summer, but I don't know that we're, And he might get convicted before the election, but I don't know if he's going to get sentenced before the election. But I do think that one happens this year, even though it's slower. It's a bigger case. It has more defendants. There's more stuff. There's more counts. It's just inherently a bigger case. I mean, you know, this is off your topic, but I'm just curious of your opinion of it. There's the 14th Amendment case that's going to be heard by the Supreme Court.

17:14Two states, Colorado and Maine, said, hey, he's an insurrectionist and pursuant to the 14th Amendment. we're going to remove him from the ballot, which is consistent with the 14th Amendment. Now, there are conservative jurists who are quote unquote originalists. And so for my viewers and listeners out there, what does that mean? A lot of conservative judges will originally interpret the words of the constitution. It's almost like an orthodoxy in a religion. And there's a lot of conservative jurists that have looked at the case, looked at the facts, and looked at the amendment, the 14th Amendment, and said, okay, definitionally, he should not be allowed to be on the ballot.

17:49Now, you and I both know that the Supreme Court's a political gymnastic organization. And so what do you think happens with that case? Yeah, I have been following that one very carefully and reading into it deeply. So that's sort of part of my wheelhouse as well. So that matter, I do think is also going to end up in front of SCOTUS and soon. Oh, they say they're taking it in February. They've already said that, Right. So that's happening. But I will say the one thing here is that I don't know that they're going to take it, but I don't know that they're going to resolve it. So my feeling is that I think they're going to find a way to not have to weigh in on the ultimate question.

18:30rather than make a sweeping decision that Donald Trump is or is not disqualified, I think there's an excellent chance that they're just going to kick it back down to the state level and say, you need to do more fact finding. We do not have enough of a factual record to determine whether or not January 6th was an insurrection and whether or not Donald Trump engaged in it. And you need to go do that. That's a great way that any situation, a higher up court can basically kick the can back down to the lower courts and say, we don't want to deal with this right now. You go keep dealing with it further and bring it back later.

19:03But why not just say that? You know what I mean? Why not just say he's disqualified or not disqualified? Why take the case? Why not just say, hey, we don't want to take the case? I think that they're going to grant cert so that they can say that the factual record is not developed enough. I think that if they didn't grant cert, then those decisions would stand. That's the problem. So they had to grant cert. They didn't want Colorado. So in Colorado, it was the Colorado Supreme Court. If the U.S. Supreme Court did not grant cert, then that would let the Colorado decision stand and he would be off the ballot in Colorado.

19:40SCOTUS didn't want to do that. They don't want that to be the impact in the meantime. This is my prediction. I think they're going to go tell Colorado, go do some more fact finding. And then that allows them to duck the issue, the more complicated legal issues of, is that provision 14th Amendment Section 3, is that still alive? Is it still applicable today? Are there other legal problems with it that prevent it from being used in this way, which are things that people have been debating? I happen to be of the camp that says the plain words of the Constitution are right there. And as you pointed out with kind of more of the originalist view on this, the way those people think is to say you don't change the meaning of those words based on the times that you live in.

20:26You have to look to what the original intent of the drafters of that provision and what the dictionary definitions of those words were at the time. And that's how you interpret the Constitution. Even if you take that conservative originalist viewpoint, it's very clear that you just need to apply that provision straight up. It's not limited to the Civil War era. It was not eliminated by some other measure later. And you can actually apply it today. And then what you're left with is that factual question of, do you believe it was an insurrection? And do you believe Donald Trump engaged in it? We can quibble about the definition of insurrection.

21:03Go ahead. That's going to be a debate. And then the question of Donald Trump engaging in it, some people have tried to argue, Trump's people are trying to argue that unless he's convicted of something, that that is not applicable. And that is not what the Constitution says. It doesn't say if you were convicted by a jury or by a court of blah, blah, blah, blah, blah, then you get disqualified. That's the irony. It doesn't say that. It doesn't say that. The court's going to be a bunch of babies. They're not going to want to rule. But if this was right after the Civil War, they would totally say, this guy's done.

21:34He can't run because they were worried about the stability of the country, which is why they put in the 14th Amendment. And the notion that you needed to get a criminal conviction in order to have this apply is absolute absurdity. Because after the Civil War, you had hundreds of thousands of Confederates. You weren't going to go convict every single one of them of insurrection. You couldn't. So you just said, bye-bye, you're all out. Justin, it's great irony because these are all originalists originally interpreting the Constitution. They're likely to give Trump a pass. Okay, so I'm running out of time with you.

22:06You're fascinating, by the way, but let me get to a couple rapid fire questions. Just your opinions. Is Trump going to be the Republican nominee despite these cases? Yes, I think he will be. Is Trump going to win the election? No, I don't think he will. Why is he not going to win the election? I think that if you look at the polling, there is a significant chunk of the country that currently is inclined to support him. But if you ask the right questions, they will make it clear that if he is convicted, that will change their opinion of him. I think there are some dyed in the wool Republicans that voted for him in 16 and 20 and have supported him up to now that if he gets convicted, I think that might be where they pull the cord and get off the bus.

22:49And I don't think it's going to be all there's going to be a MAGA diehard contingent. But I think there's enough. OK, OK. So let me ask you this. He loses the election. We both agree on that. Does he run in 2028 at age 82? If he can, if he's not in prison, because it'll be tough to run from prison. I think he'll be in prison in 2028 and he'll be in prison in 2032. Right. And he'll be in prison in 2036. But if he wins the presidency, they won't put him in prison, right? If he wins the presidency, that will help him with, then he could use the powers of the presidency unconstitutionally to suppress those federal prosecutions, those two.

23:26The state ones, he cannot do anything about unless he really crosses the line and does what? What's he going to do? Come up here to New York and send in the army to stop the Manhattan DA from prosecuting him? This is the thing I don't understand about some of my fellow Republicans. He's capable of doing anything, which is why I speak out against them. So, okay. I got five words. Every author gets them. You can give me the speed. This is speed dating now. I'm going to use the following word, get your reaction, democracy. Awesome, but fragile. Justice. Worth fighting for every day, and it's a choice we make.