Jack: Tonight, a "MetroFocus" special report, Donald Trump's day in court.

A deep dive into the 34 felony counts he is facing.

Plus, reaction to Mr. Trump's defiant speech.

"MetroFocus" starts right now.

♪ ♪ >> This is "MetroFocus," with Rafael Pi Roman, Jack Ford and Jenna Flanagan.

"MetroFocus" is made possible by Sue and Edgar.

The Peter G. Peterson Fund.

Bernard and Denise Schwartz.

And by Jody and John.

The Ambrose Monell Foundation.

♪ >> That is exactly what this case is about.

34 false statements made to cover up other crimes.

These are felony crimes in New York State, no matter who you are.

We cannot and will not normalize serious criminal conduct.

>> This fake case was brought to interfere with the upcoming 2024 election and it should be dropped immediately.

A Trump-hating judge with a Trump-hating wife and family.

He illegally leaked a massive amount of Grand Jury -- Jack: Welcome to a "MetroFocus" special report.

I am Jack Ford.

That was Alvin Bragg and Donald Trump.

That afternoon, Donald Trump became the first U.S. president in history to become the first charge for the crime.

He pleaded not guilty to 34 felony counts of falsify business records.

Prosecutor said he organized a catch and kill scheme to keep people quiet ahead of the 2016 presidential election.

The former president vowed to fight the charges and cast himself the victim of a political witchhunt.

He also railed against D.A.

Alvin Bragg and the judge on the case and their families.

Mr. Trump's speech came hours after his arraignment in lower Manhattan.

A normally routine process that unfolded in a circus like atmosphere.

Hundreds of people gathered outside the criminal courthouse, some supporting the Former President and some celebrating his indictment.

Despite fears of violence, the protests were largely peaceful, a creditor law enforcement.

The city breathes again but the fallout is just beginning.

What then comes next?

Joining me now to discuss the issues are judge Doris Ling-Cohan, a retired New York State justice who ruled under previous defamation case involving Donald Trump.

Duncan Levin, former federal prosecutor of financial crimes at the Manhattan DAs office.

And Ellis Henican, a Pulitzer Prize winning journalist.

It is a pleasure to have you with us.

We have a great deal to talk about.

I will start with you first, Ellis.

As a journalist, your job is to chronicle events, provide context and perspective.

This was an extraordinary event that happened here yesterday.

Give me your thoughts on what transpired Ellis: Big characters make big stories and these were some of the biggest.

Just think about it.

This story has everything.

Interesting and complicated legal issues.

A defendant who might be the most famous human being on earth.

Strong political feelings across the spectrum of our country.

We are making history.

We have never had an ex- president accused of a crime in such a formal way.

It has only begun.

Twists and turns to come, strong fights ahead and everything is so personal.

This is pretty much the one that has everything.

Jack: Let's talk about some of the issues.

This case has already generated significant legal questions and issues and will continue to do so.

Judge, let me come to you about this.

We saw the defense yesterday essentially decrying the indictment itself, claiming there was very little in the counts, themselves.

In the indictment, there was a statement of facts and the 34 counts.

Without the defense bemoaning that there was nothing in there.

We saw the Former President saying there was nothing in there and the D.A.

saying, here is what we put in it.

As a legal matter, explain what an indictment is and what needs to be included and what does not need to be included, at least in the early stages of the case.

Judge Ling-Cohan: The indictment can be very bare-bones.

This one is a mixture of both but is fairly bare-bones.

The statement of facts does flush it out but it has to plead the elements of the crime.

This one definitely does.

34 counts, felony, D felony, it lays out the falsification of business records, which is the main charge.

It elevates it by essentially saying there was another crime, an intent to commit or conceal criminal conduct.

That is all they needed.

The defense did what they were supposed to do.

They went out and said there is nothing here.

This one, there is plenty there and it is unlikely to get dismissed on a motion.

Jack: Bottom line is, you do not need to have everything you have as a prosecutor in the indictment?

Judge Ling-Cohan: Absolutely.

Correct.

Jack: Duncan, let me come to you.

You have experience in the District Attorney's Office, a federal prosecutor and now a trial attorney, defense attorney.

Let's talk about what we saw yesterday with the defense attorneys outside and making certain pitches, a statement given by the district attorney himself.

We often hear references to the court of public opinion.

What did you see playing out yesterday with regard to the defense attorneys and the prosecutor -- prosecutor?

Duncan: Just to add on to what the Judge was saying, the prosecution does not need to put much more into this indictment.

The problem is the falsification of business records themselves is a misdemeanor.

The statute of limitations ran out after two years.

That as a misdemeanor is not a viable case.

What makes it viable is if the falsification was done to conceal or commit another crime.

That is what allows it to be brought as a felony with a five year statute of limitations.

The indictment itself says absolutely nothing about what these additional charges are, what other evidence is.

For that, you have to look in two places.

The statement of facts, a document that has no legal weight, and D.A.

Bragg's public statements.

It seems to be there are three crimes that are talked about, two of them are election law violations.

New York violations, a violation of the Federal election campaign cap revision -- contribution cap.

We have to look at these public statements to be able to see what the DA is even talking about.

It might be legally sufficient as a matter of law but I think it is problematic that none of it is there.

I do not disagree with what the defense is saying when they come out of court and talk to the media about there being nothing there.

I think the D.A.

at some point will need to answer which business records match up which other crimes.

There are no other statutes mentioned anywhere in these documents.

Jack: That is an interesting thing.

Judge, let me come back to you.

We have heard throughout the course of the reporting on this case and the comments being made , we have seen questions raised about what Duncan mentioned.

How'd you get this to a felony?

You mentioned, you have to have not only the falsification of business records but it has to be designed -- this is the allegation the prosecutor made -- to cover up or to allow to continue some other offense.

We have seen basically three.

One is a violation of state election law.

One is a violation of federal election law.

And then this violation of tax laws.

Given all of the speculation that there might not be enough here if it is just a violation of the federal law because, the argument was, who gives the district attorney, Alvin Bragg, the right to prosecute based on the violation of federal law?

How about the inclusion of the tax law violation?

Do you think that will give the district attorney enough to hang their hat on?

They can argue about the others but at least this gives them an easier path, perhaps, rather than relying on violation of federal law?

Judge Ling-Cohan: Absolutely.

But there is also the violation of New York State election law, which is 17-152.

In theory, they could just focus on that.

I think they are spreading the ammunition far and wide to make sure something will stick.

In the indictment, it is bare-bones.

It does not name a statute but they did not have to name a particular statute that was violated.

They did not have to lay out all of their cards.

There is a discovery process and New York State has an expanded discovery for defendants.

There will be more set forth later on, I am sure.

Jack: Just so we understand when you talk about discovery process, we no longer have trial by surprise in our courts.

Judge Ling-Cohan: Yes.

Jack: The defense will learn at some point every thing the prosecution has, is that accurate?

Judge Ling-Cohan: Yes.

Pretty much.

Pretty much.

Jack: Three of us here, judges, former prosecutors, defense attorneys, and we are talking about the details of an indictment.

Do you think the public either gets that or is concerned about this whole discussion, what is the underlying offense?

Ellis: The eyes are glazing over.

It has taken us seven minutes to describe it.

From the public point of view, those complexities are interesting for the obsessive and the people like us.

We are a very tribal nation.

All of the reaction over the past hours, I have seen folks running right back to the court.

People inclined to like the ex- president are talking about the horrible abuses of the system.

People who hate him are saying thank God, they finally got him on something.

Either you really do need to separate those -- interesting, complicated legal issues that are worth chewing over but the political impact of this has very little to do with that part.

Judge Ling-Cohan: If I could just interject.

I was seeing all the headlines in various papers all over the country and it says 34 felonies, that is one of the headlines.

People will digest it as an indictment of 34 felonies.

The little issues that we are talking about are very interesting to lawyers and people who follow the law, but the bottom line is he has to defend against 34 felonies.

Jack: Some of the other things that came out, Duncan I will come to you for this, we have seen leading into this Mr. Trump attacking not just a process but also personally attacking.

We have seen personal attacks against the district attorney.

And then we saw yesterday in his speech at Mar-a-Lago -- and we had seen it in some of his social media posts -- him potentially attacking the character of the trial judge and the judge's family, his wife and daughter claiming they are in his words "Trump haters."

If you are representing the president, are these the kinds of comments that you think will be in any way, shape or form helpful to your defense?

Duncan: Not only are they not helpful, they are possibly criminal on their own and certainly deeply concerning and wrong in every way.

As an alum of the office, I find it deeply troubling to hear they have received packages of white powder.

When I see vitriolic images of Donald Trump holding up a baseball bat on a posting that he posted on truth social, his social media platform, holding up a baseball bat near D.A.

Bragg's head, these could be seen as criminal under the New York State menacing statute.

It rises to such a level of being downright inappropriate and dangerous.

It is not helpful in any way to his defense.

The judge is not going to have it.

I think he is already bending over backwards to try to -- given the enormous public interest to not reign in Mr. Trump too much but if this continues too much, he will impose a gag order.

Jack: You get me nicely to where I want to be.

I will go to the Judge first and then Ellis.

Two questions.

The first question is, does the judge have the power or ability to restrict the comments that would be made by a defendant in his courtroom?

Second question, perhaps more important, should he do something like that?

Judge Ling-Cohan: He does have the power.

The thing is you have, essentially, by all accounts, someone who has difficulty controlling his behavior, to put it kindly.

What happens if he violates the gag order, that a judge imposes on him, he essentially goes to jail for 30 days.

That is something I do not think you want to do at the beginning of the trial and set that tone.

I think the judge was wise and that he warned essentially both sides that this is something he wants to control.

He did the unusual -- normally, arraignments are very quick.

This one lasted about an hour.

He went through a warning that is unusual.

Normally it is done in cases where there is some mental illness component, to warn the defendant that this trial will go on whether you are with us or without us, meaning that if you do not show up, we are going to go forward.

In this case, he said to Donald Trump that if you essentially do conduct tries to impede my trial, you might be removed and the trial will continue without your presence.

That is extraordinary for him to have done that and I think that is the first warning -- a strong morning -- to President Trump that he will not tolerate that.

Jack: You say he will not tolerate it.

We know the judge has certain powers and abilities to control his or her courtroom.

The judge's is being patient and wise in the beginning but the judge issued a warning and literally hours later, the Former President escalated -- I think that is a fair characterization -- escalated his personal attacks.

Once again, where is the line?

Any judge has to be concerned about the integrity of the process and the perception of the integrity of the process.

Does it look fair?

Does it sound fair?

Is it actually fair?

What is judge ♪ ♪ ♪ ♪ ♪ -- What does Juan Merchan do if the Former President continues.

His supporters will say, this is who he is.

We can anticipate, given what he has done to opponents in the political realm, he may well continue these personal attacks.

Is there a point in time when the judge, not just for his personal concern but for the concern of the integrity of the trial, will have to say I will not allow this anymore?

Judge Ling-Cohan: Absolutely.

The integrity of the trial and the rule of law.

If ordinary defendants can do this all the time, there is a problem with our justice system.

The judge has to balance that, as well.

The question of whether his remarks crossed the line, arguably, yes, arguably, no.

If he goes a step further, I think the judge really has no choice.

I am hoping -- Jack: Ellis, jump in.

Ellis: I think you guys are living in the clouds.

The judge will threaten, warn, wag his finger and do nothing.

Duncan is absolutely right.

This is all unwise.

Donald Trump should keep his mouth shut and he won't.

We have been down this road a thousand times.

What does the judge do?

What he needs to be careful about is threatening something he is not prepared to deliver.

I would say, sitting here right now, it is almost unthinkable that this judge will have some kind of a pre-conviction detention for Donald Trump.

He will find other ways to deal with the outbursts.

He will be very careful in picking a jury and making sure they are jurors who can make a fair judgment.

He might even lean on the lawyers, but I will predict right now that no matter what Donald Trump says prior to this thing going to trial, nothing will happen.

Jack: Duncan, Ellis brings up an interesting point, the jury selection process.

Some people are probably not versed well in trials, I have.

♪ ♪ ♪ -- I have heard people reporting that they will not be able to pick a jury and find people that do not know anything about the case.

Duncan: The standard is people who can be fair and do not have preconceived notions about.

What we are really talking about, aside from other vitriolic language and the potential violence toward prosecutors or the judge's family, what we are talking about is the residents of Manhattan are potential jurors and some of the information by docket in front of the jurors at a trial.

The judge was to make sure the jury pool is not tainted.

Donald Trump resoundingly lost the vote in Manhattan but that does not mean that someone does not want him to be president of United States but they cannot listen to the evidence fairly and with an open mind.

That is what the judge will be looking for in jury selection.

That is what the parties will be looking for in jury selection.

Everyone knew about the OJ case.

There are a lot of high-profile cases where people could still pick a jury.

The question is, can you be fair?

Jack: You can have a juror CI have followed this extensively but the bottom line is, you ask a potential juror, can you still confirm to us that you will hold off on making a decision until you effort both sides.

Is that basically what you say to them?

Judge Ling-Cohan: Yes, correct.

Jack: We have a few minutes left and there are a few other things I want to touch base on.

We have further defense said have motions they will file.

The prosecution will have time to respond.

Talk about a judge's power.

When a judge is presented with motions, does the judge -- if he or she agrees with the defense saying there is nothing here -- does the judge have the ability to say, you are right, can I throw this out?

Does that often happen?

Judge Ling-Cohan: The judge does have the ability to do that.

It is a long process.

Obviously, the prosecutor has an opportunity to oppose the motion and the judge might hear an oral argument.

The judge does have the power to do that.

It does not happen that often.

There has to be a missing element.

The prosecutor has not put in the indictment.

For that to even happen.

It is rare that it happens.

Jack: Duncan, would you anticipate -- we have about three minutes -- would you anticipate from what you have seen here that despite the challenges, the legal challenges the defense attorneys will make to the indictment itself and the nature of the charges, would you anticipate this would move forward?

Even though it might be fine-tuned by a judge, the judge will not throw this whole thing out?

Duncan: I am concerned with the fact that we do not know what these other crimes are.

I am very curious to know what the grand jurors were charged in terms of the lot.

That is what the judge will look at on his own.

That needs to be legally sufficient.

That is one concern.

I think this will take a D2 were to federal court on these federal election law claims.

We have a long, winding road ahead of us.

It will go forward but it might get chopped to little pieces on its way.

Jack: I do not mean this facetiously in any way shape or form, it almost reads like a law school final exam with all the twists and turns and curious and unique legal issues.

Ellis, I will give you the last word.

We have heard people say of all the Former President's potential legal problems, this might be the least consequential.

How will this all stack up and play out if indeed there are more serious offenses coming at him down the road?

Ellis: I am glad you brought that up.

We are in a unique moment.

This is the only indictment is facing.

There are at least three others that seem to be running down the tracks rather swiftly toward -- charges in all three cases are indeed more serious and frankly easier for regular folks to understand.

Any analysis we do about the long-term journey of this case in Manhattan, you have to see it in the context of a potential prosecution involving January 6, one involving the documents down in Mar-a-Lago, and one involving efforts to try to change the results of the Georgia vote.

This is Ground Zero right now but it might not stay that way forever.

Jack: Certainly more to come as we have all talked about.

Complicated issues.

Our thanks, Ellis Henican, Duncan Levin, pleasure to have you and judge Doris Ling-Cohan, thank you for joining us.

You all be well.

Judge Ling-Cohan: Thank you so much.

♪ Jack: Thank you for tuning into "MetroFocus."

You can take our program with you anywhere you go with "MetroFocus: The Podcast."

Simply ask your smart speaker to play it.

Also available at metrofocus.org and Donda N -- and on the NPR 1 app.

>> "MetroFocus" is made possible by Sue and Edgar, the Peter G. Peterson Fund, Bernard and Denise Schwartz, and by Jody and John.

The Ambrose Monell Foundation.

♪