(upbeat music) - Back by popular demand, we have our good friend, Elie Honig, who is CNN Senior Legal Analyst, former federal and state prosecutor, and author of "Untouchable, How People Get Away with It".

Hey, Elie, thanks for joining us last minute, and I put that out there because we weren't planning on doing this.

We're taping on the 21st of March, a significant date.

We don't know what's gonna happen today, tomorrow, the next day, the next day.

Assume for a moment that former President Donald Trump is in fact indicted in New York City in Manhattan through the DA's office.

First of all, for those who argue, watching right now, hey, this is a political prosecution.

Trump puts out on social media, go out there, protest.

We don't know what's gonna happen or not happen.

We pray that January 6th does not happen again.

A political prosecution you say?

- Well, Steve, it's hard to know the subjective intent behind the DA here.

I should add right up front, I know Alvin Bragg, I'm friends with him, the Manhattan DA, I used to work with him.

We were federal prosecutors together at the Southern District of New York.

Let me sort of make the argument why I can see it both ways.

On the one hand, this is sort of part of the inherent problem whenever you have a local elected partisan, I don't mean that in a negative way, I just mean- - He'’s a Democrat.

- The person has an R or a D next to their name, prosecutor.

I was lucky I always got to work for federal prosecutors, and in New Jersey, for the AG, neither of whom are elected, they are appointed.

But whenever you have elected local county DAs bringing charges against former federal officials, there will be an easy claim to make that it's political, and people will reasonably think there may be some political motivation.

On the other hand, Alvin Bragg has a long record, I think, of playing it straight.

I've worked with him.

He's a good prosecutor.

And if you think back a year go, Steve, almost exactly a year ago now, news came out that Alvin Bragg was not interested or not willing to charge Donald Trump.

He didn't think the evidence was there to charge Trump with a different financial case.

- I'm sorry, Elie, to interrupt.

Let's be clear.

This has to do with, I believe, the $130,000 payment to Stormy Daniels in connection with the 2016 campaign.

Michael Cohen, key witness here again.

Watch Elie talk about this on a daily basis on CNN.

This is a bigger picture discussion.

But that was considered "hush money" to keep Stormy Daniels quiet, which the DA in Manhattan says, hey, wait a minute, that's a campaign violation because you're using money to influence the campaign.

- Yeah, so this is the allegation that we're looking at now.

And look, I have been skeptical about the seriousness of these charges, I've been skeptical about the quality of the proof.

And the crime here is really important to understand, Steve.

The crime is not paying hush money.

You are allowed to pay hush money.

It's not great, I don't advise it, but it's not illegal.

- For a married man who wants to keep it from his wife, that's what some would argue on the Trump side.

That's what he did.

That's all he did.

And by the way, Michael Cohen, they say, did it on his own to help his friend, Donald Trump.

Go ahead.

- It's unseemly, but it's not necessarily illegal.

It's not a crime.

Also, other people say, well Trump- - Where's the legal criminal issue?

Where's the criminal issue?

- Well, here's the criminal under, and we're talking New York state law here.

The crime, under New York state law, is falsifying a business record.

So the allegation is that these hush money payments, by the way, I don't know what the proper way to categorize a hush money payment to a porn star would be, but they were categorized on the internal books of the Trump organization as legal fees.

They were not legal fees.

That is the entire basis for the case.

Now, if the Manhattan DA can prove that, and as to Donald Trump, if they can prove Donald Trump knew about how these entries were logged in the books, and there's a substantial question about that, that's only a misdemeanor, Steve, which is less serious than a felony.

The max penalty there is a year, but realistically, no one goes to prison on a misdemeanor, certainly of this nature.

If, however, they can take that next step that you've talked about and prove that the reason these documents were falsified was to make them a campaign contribution, was because this money was meant to cover up for Donald Trump politically or electorally, as opposed to spare Donald Trump and his family from embarrassment and humiliation, then it's a campaign contribution in excess of the legal limits.

Then it becomes a felony, but even then, it's what we call a class E felony, which is the least serious type of felony, four year maximum technically, but very unlikely.

Well, not very, I'll say quite likely that a judge does not sentence a person on a first time non-violent class E to prison.

- Okay, but also there's a case potentially that could be coming in Georgia having to do with trying to influence the election process in Georgia through the presidential election in 2020.

We'll see what the prosecutors down there do.

There's some other cases as well having to do with January 6th.

Here's my question, Elie.

It's a bigger picture question, because again, we're not here in this conversation to talk about what's happening just today.

It's the bigger, the larger, longer term implications.

Have we gotten to the point, Elie, where a vast majority of people in this country, a significant percentage of people believe that every prosecution, whether it's Trump, Biden, this one, that one, that it's all political and there are no facts and legitimate prosecutions going on?

Have we become that jaded?

- I think, I hate to be jaded, but I think whenever you're talking about an investigation or a prosecution of a high profile political figure, the former President, the current President.

- The former President of the United States, running again in 2024.

- Yeah, relatives of high profile politicians.

I think there is a huge percentage of the population who will say it's political, who can make that claim.

Ultimately it's gonna go back and forth, and it's hard to tell whether there's any truth to it.

To me, the best way to make that judgment is A, look at how serious is the crime, B, look at how strong the evidence is, and C, look at how similar cases have been handled.

And here, I think there's arguments, not to play everything both ways, but here I think it's a tricky call.

I mean, there are, on the one hand, there's an argument that by making these hush money payments Trump helped himself win the presidency in 2016.

On the other hand, Hillary Clinton's campaign actually was caught mis-characterizing fees that they used on the Steele dossier, they mis-characterized those also as legal fees, and all they got was an FEC fine, a Federal Election Commission fine.

So there's a fair question there as to is it fair that ... Look, they're not exactly identical conduct, but one side gets a fine, the other side gets potentially prosecuted for it.

- Let me shift gears for a second.

The role of social media, not just in politics, but from a legal point of view.

Donald Trump puts out on Truth Social, his site, I'm gonna be arrested on a certain date.

Again, we're taping on the 21st, we don't know.

By the way, being indicted is not exactly the same as being arrested in the way people view it, cuffed, walk, perp walk, the whole bit.

The role of social media in the judicial process.

Wreaking havoc, positive, what?

- Oh, it's a challenge, for sure.

Let's look at Donald Trump.

Look at January 6th.

I mean, a big reason why that riot happened is because of Donald Trump's use of social media.

Be there, we'll be wild, right?

He hyped up that rally.

I think it was 10 times January 6th.

That's how people knew to come to the rally on January 6th.

- What does that have to do with the criminal prosecutorial process, Elie?

- Well, what you don't want to see- - Can you use social media to influence a judicial, can you use social media to effectively, or ineffectively, impact the legal process?

- You can use social media to do the same things that you're allowed to do otherwise.

You are allowed to protest, you are allowed to criticize prosecutors, you are allowed to criticize judges.

What you cannot do is try to incite violence.

What you cannot do is threaten in some way a witness, a judge, a prosecutor, a party to a case.

So the same lines as ever existed still exist, but now with social media, it's much easier to speak and to disseminate your speech widely.

- Tell you what, there are a lot of moving parts to this.

While people say, oh, Elie's a legal expert on CNN, which he is.

To say that there's no political consideration is just not true, to say that it's totally political is just not true.

There is the confluence, if you will, of the legal process and the political process.

That's not commentary, that's just a fact.

But if you want to know more about it, go ahead Elie, last word before I let you go.

- I agree with you.

I mean, prosecutors love to say facts and law, facts and law, facts and law.

Every prosecutor ever has said facts and law to justify any conduct.

If you hate Bill Barr, he said facts and law all the time.

If you hate Merrick Garland, he says facts and law all the time.

Alvin Bragg says it.

Everyone says it on both sides of the ledger, and I think you're right.

I don't look at prosecutors as sort of in a vacuum or a bubble.

I think prosecutors are well aware, I know prosecutors are well aware of the political world around them, and I think it's fair to ask whether this case would be brought against Donald Trump if he was any normal person.

I've seen it argued both ways, and I think it's an interesting question.

- And remember, some attorneys general are elected in their state, some prosecutors are elected, U.S. attorney not elected, but appointed politically.

It's a question of whether you're appointed or elected.

Interesting stuff.

"Untouchable, How Powerful People Get Away With It".

Elie Honig.

It's a national best seller.

- Elie's one of our good friends, and check him out on CNN on a regular basis.

Thank you, my friend.

See you soon, Jersey guy.

- Thanks, Steve, take care.

- Another Jersey guy.

- Proud to be from Jersey.

Always glad to be with you.

- You got it.

See you next time folks.

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