>> The unprecedented arrest and arraignment of a former on federal criminal charges, will be President Trump's legal strategy and what case does the prosecution have against him?

Will be see a trial before the presidential election?

We cover all the angles as a "Metro Focus" special report starts right now.

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

"MetroFocus" is made possible by Sue and Edgar Wachenheim III, Filomen M. D'Agostino Foundation, The Peter G. Peterson and Joan Ganz Cooney Fund, Bernard and Denise Schwartz, Barbara Hope Zuckerberg.

And by Jody and John Arnhold, Dr. Robert C. and Tina Sohn Foundation, the Ambrose Monell Foundation, Estate of Roland Karlen.

>> Good evening and welcome to "MetroFocus".

A special report on the historical arraignment of former President Donald Trump on federal criminal charges.

Former President has preceded -- pleaded not guilty to 37 counts including obstruction of justice and conspiracy.

He is refusing to return them to a government official.

The document allegedly included nuclear secrets, if convicted Former President potentially faces significant time in prison.

Mr., the front runner for the president Republican nomination flew to New Jersey for a speech in front of donors.

He blasted the indictment as a partisan attack.

What did the charges mean?

What will be his the all strategy?

What about the Trump appointed judge who will be overseeing the case?

Joining us not to help us understand all of this are Daniel Richman, a former federal prosecutor and Professor of Law at Columbia Law school, and also Bernarda Villalona, a well-known criminal defense attorney and former prosecutor.

Welcome to both of you.

We have a lot to talk about.

Let me start with the prosecutions charges here.

We will bounce back and forth between U.S. the prosecutors perspective and our defense attorneys perspective.

A good place to start it was -- to start is with a -- of the charges.

Most people who know anything about the espionage act would be thinking, that talks about providing aid and comfort to our enemies.

But there is more in that statute.

Talk about how that statute is being utilized by the prosecution in these charges against Former President.

Mr. Richman: They keep with the statute is to look beyond the title and look at the particular language of the offenses that are created by the statute.

Here in particular, Trump is charged with willful retention of national defense information.

Which comes right out of the statute that is not a reference to espionage in the classic sense.

I think the Special Counsel has made an effort to not use the word espionage.

It was due noted as willful retention of national defense information.

There are counts related to false statements of fact are very much crimes in and of themselves, but work nicely from a prosecutors perspective in terms of highlighting the degree of willfulness that went into the involved -- in lawful -- unlawful retention of documents.

Jack: Specular -- speculate about what we might see from the prosecutors.

Focusing on that spy, espionage aspect of it.

What do you think the defense will do, what will be they saying about the specific charges, the willful retention charges.

Ms. Villalona: When it comes to the defense, they will be trying the case inside of the courtroom as well as outside.

The strongest for the defense is trying the case outside of the courtroom, it has bigger ramifications.

We look at the indictment, and based on this speaking indictment, we see that there are strong charges, it is supported by strong evidence.

People from his inner circle.

Attacking that at the time of trial will be difficult.

However, what do we know from our jury trial?

If this goes to our jury trial, people are part of that jury.

You need to work on trying to frame the narrative and also trying to give information and tailor the jury pool to be on your side.

It does not matter how strong the evidence is, if you cannot get a jury of 12 people to find you guilty, it does not matter.

We are working with jury nullification, the campaign as a defense, in the sense of, if on all Trump wins, guess what, he is going to appoint his attorney general.

That will dismiss the charges, that will say if he does not dismiss them, he will pardon himself and others as well.

You have to work it from outside and also inside of the courtroom.

If we were to work it from the inside, in terms of the espionage act, the willful retention of documents, the defense can argue Donald Trump was a lawfully in possession of those documents because he was a Former President and was allowed to have those Ms. Baird can argue that.

But it is not going to be successful.

Jack: How about that?

We have seen with regards to documents all sorts of different positions offered up.

We say this all the time, it is an indictment, the special prosecutor said no one is above the law, but everyone is entitled to the same protections, you are innocent until proven guilty, beyond a reasonable doubt.

But we are seeing a series of defenses, one of them is a notion of the Former President saying, I can do this.

I have the ability under the presidential records act, the question is whether that is true or not.

How do you think the prosecution would respond here do these defenses and many of them are for the court of public opinion, people who may well become jurors.

What is the response to the defense that says we have the power them a the president has the power to declassify these, therefore this is not criminal.

Maybe bad accounting, but not criminal.

What is the prosecution going to say about that?

Mr. Richman: At the core of the prosecution's response, which they thought about and baked into this indictment, is not a technical legal argument about how Trump lacked the power, but how he knew he did not have the power, he knew these particular documents were classified, knew he lacked the power to could classify them.

-- to declassify them.

They made an effort to highlight the evidence they have now, which will show both the lack of declassification and his knowledge of the lack of declassification, as well as his not caring.

Jack: Let me come back to you, you mentioned one thing earlier.

The term of a speaking indictment.

Talk about what that means and why strategically and tactically a prosecution would use this speaking indictment in a case?

Mr. Richman: No one should look at this indictment and get an impression that this is a normal indictment.

If you look at most, a great majority of federal criminal indictments, they will be quite bare-bones.

They will give the defendant what is constitutionally required, notice about what the offense is, what day it happened, what stocks were involved in the securities fraud.

But not much more beyond that.

Unless it serves the government purpose to say a lot more.

Here what we see is a very much decision by the Special Counsel that it does serve his purpose.

It is always a downside in putting things in indictment because you are committed to them.

But on the other hand, when you are talking about tapes, pictures, testimony that you have locked in, you are not taking a large risk.

You are gaining something.

You are gaining in the first instance real clarity to the public about what the charges are and also the strength of the charges.

It is usually silly to talk about strong indictments, you cannot tell about the evidentiary strength.

This is one of those indictments, because of the detail it went into, you could say, yeah, can't be sure yet, but it looks pretty strong if you look at the kinds of evidence that the government stitched together and the way in which the evidence probably is unlikely to be messed with on the way to trial.

Witnesses testimony may change slightly, but documentary evidence, tape recordings, do not change.

What you get is, yes, an obligation to prove what you put in the indictment to some extent, but you get a way to tell the public what it is you have done, and also to tell, we really have the goods against you.

It is seriously, we consider your position.

Jack: We will get to that.

Back to you, what he just said is the flipside of the court of public opinion.

This is not for the prosecution.

We will get our shot of the court of public opinion, look at what we have come a at the photos part of the indictment.

Let's talk about aspects, the obstruction of justice charges.

The concept is, he refused, not only to return things but attempted to obstruct the government in many different fashions.

One of the most striking is, you see this in the indictment, indications from his own lawyers.

About what the prosecution says was his attempt to obstruct.

Let me ask you from eight defense perspective, we know that preliminarily, prosecution got approval to essentially pierce the privilege between a lawyer and a client and use those words.

Is that an issue, or do you anticipate that will be an argument once the case gets going that the defense will try to relitigate?

Ms. Villalona: The issue of attorney-client privilege is something the defense has no choice but to bring that up again and this courthouse.

Despite eight district court judge and appellate court determining the attorney-client leverage -- leverage was pierced, it is essential for the defense to bring that up, they have to bring it to the Supreme Court.

That evidence and testimony is so damaging to Donald Trump, that if he is able to exclude the notes of this attorney, the testimony of this attorney, it gives some a better leg to stand on.

Questions that he can ask and argue in terms of Donald Trump your you hired an attorney, the purpose of hiring an attorney is so you can get counsel.

You ask the attorney questions, how about if we do this?

How should I go about that?

The purpose of that attorney-client privilege is to ask questions of your attorney and get guidance.

Donald Trump, if this evidence is to be allowed, and he has lost the ability of precluding that evidence, his druggist point is to argue that I was asking questions, I was not directing my attorney to commit a crime.

I was not attempting to conceal these documents, to hide these documents, or to obstruct justice.

I was asking an attorney, who I hired Semafor writings and asking questions because I am not an attorney.

Donald Trump is not an attorney.

Jack: I am doing what you are supposed to do.

I want to get to other things.

But if that argument is sustained in the trial, and for whatever reason that testimony goes, is there still a significant basis for the prosecution to prove these obstruction purges without the comments from the Former President own attorney?

Mr. Richman: If Judge Howells 'decision is held up, such that this is deemed attorney-client privilege information, there will be major ramifications.

Go beyond the fact that critical evidence from Trump's lawyers on which some of these charges rest will be excluded, there will be an argument that the governments possession of that information, without appropriate legal basis taints the entire case.

And that could be, there is a little legal uncertainty about what exactly one does where attorney-client privilege information is improbably used by the government.

There is an argument that the entire prosecution would be tainted, and needed to be overturned.

Jack: Let's talk about other things.

One is going back to the speaking indictment.

I will escort perspective, from the defense perspective, included within the indictment are comments that the Former President made years ago, back when he was running for office against Hillary Clinton, and it was essentially a challenge to Hillary Lenton where he said, if I am President, I will protect the sanctity of documents.

No one will be a low -- will be above the law.

Clearly those words are very damaging.

But from eight defense perspective, how can you keep those words out of the trial?

Ms. Villalona: I don't think those statements by Donald Trump doing his campaigning in 2016 will be kept out.

What do you have to do as a defense attorney?

You have to embrace it.

Give it a spin from the defense perspective, Donald Trump follows the law, he follows the rules, he knew that in terms of classified documents how damaging it can be to the country.

So that is why he would have never committed these crimes.

That is why he would never have willfully retained these documents if he thought that he did not have a right to do so.

But he believed he had a right to do so.

Because was -- because he was a Former President your you have to embrace it with power.

In order to be able to sell it to a jury.

You cannot run from the bad facts.

Jack: How about the defense?

They say, maybe I was wrong, but I thought I had the ability, the power to do all of this.

What is the prosecution's response?

Mr. Richman: That is where we come back to the conversations that are referred to, where he says, sorry, I can't to be -- I cannot declassify.

It shows a knowledge of the process, a process that the comments he made with respect to Clinton showed even more knowledge of.

And complete disregard for it.

I think there is a reason why Special Counsel lead with those early on in the indictment because they go to the heart of this consciousness argument they are going to be making.

Jack: You both had mentioned that the trial judge, Aileen Cannon, who was involved early on when she issued an order providing for a special master to review material that was being gathered pursuant to a search warrant.

That decision was thrown out by an appellate panel, two of whom were appointees of Former President Trump.

From the defense perspective, this is now, unless anything changes, how happy argue -- I don't know if that is the right word.

How happy argue to have this -- he to have her as your trial judge?

Ms. Villalona: I think Donald Trump camp is content that she is the assigned judge.

She was appointed by Donald Trump, but based on her past reasoning, her past orders, and decisions in this case, you know that she is not biased, she is not pro-government, pro- prosecution.

I believe that Donald Trump camp is content.

But just because he was appointed by Donald Trump them up does not mean that everything is going to go Donald Trump's day.

The defense still has to tread lightly in terms of arguments they make, at least they know and understand that they are going to get a fair shot.

Jack: We all know that just because previously she issued a ruling that was thrown out by an appellate panel, does not mean that that would automatically disqualify her in any way, shape or form from this.

Who have seen all sorts of opinions from people saying, she should be -- she should recuse herself.

Even suggestions saying the government should try to get her off of the case.

First of all, is that possible, wouldn't that be a good move I the prosecution?

Mr. Richman: I think that the fact that one has been appointed by the person who is a defendant in the case is a novel issue that has never come up.

But, a judge needs to think about not just how she will be affected, but how she will be seen to be affected.

I could imagine that she would decide that there is a problem that would require her stepping down.

I kind of doubt that will happen.

If she does not decide there is a problem, I think it would be tough for the government to have any success removing her.

There would be a cost to even trying to move her.

One of the things that everybody is so conscious about in this case, the government is trying to make sure from their perspective that there is an appearance of real normal process here.

And if the government looks like it is getting rid of somebody who is a Trump appointee, it is how it would play, the claims of this being up political prosecution, that are being made loudly, will start to have a little more substance to them.

Jack: I have a few more I want to get to.

Quick responses to each of these.

Defense perspective, we hear so many people saying this is purely political.

This is a political trial, it does not belong in the courtroom.

Can that argument he made in front of a jury?

Say without pointing to comments from President Biden or Merrick Garland, saying that, here is our defense, that is purely political and you should find him not guilty because of that.

Would you expect that argument to be made?

Ms. Villalona: I expect it to be made, it will be continued to be main.

Until the end of a jury trial, if we get there.

When it comes to the defense, we all know, the defense has no burden.

The prosecution has to prove the case beyond a reasonable doubt.

In a case like this where Donald Trump is the former president and he is a candidate for the upcoming election, he can argue that this is a political prosecution.

Look at others who have committed crimes such as this.

And they have not been prosecuted.

It only takes one juror.

If I were the defense, that is coming in.

Jack: Your point is important.

In order to get a conviction, all 12 jurors have to say yes.

And to acquit, they all have to say yes.

That is a win for a defense.

You hear people talking about, these charges carry with them potential of decades for each of them in prison.

As we all know, there are federal sentencing islands.

They are not mandatory away they were in the late 1980's.

Generally speaking, I want to stress the fact that we are not concluding that he will or should be found guilty, but if that does in fact occur, what kind of range of prison time, would the Former President be looking at?

Mr. Richman: The starting point of the analysis is do not pay any attention to statutory maximums.

This is exposed to 400 years.

No one ever, that is irrelevant with -- with respect to federal sentencing.

A little more relevant is sentencing guidelines.

But again, be careful about putting much focus on those.

Sentencing guidelines are advisory, they are not just advisory but always thought to have been done for the regular case.

The only thing every single person in the country can agree in right now, is that this is not a regular case.

The idea that the sentencing guidelines will do very much work is unlikely.

Jack: Two minutes left.

How concerned do you think the defense will be about the prospect of Mr. not to being flipped by the government and agreeing to testify?

Ms. Villalona: That is in the back of the mind of the defense each and every day.

If he is due flipped, that seals the deal for the prosecution, that is why Donald Trump is holding him closely, even flu him and for his own court appearance.

And also his back -- pac is paying for his legal fees.

You have to keep in close if you want to have any chance in this case.

Jack: Last question, as we know, there is a presidential campaign that is going full steam ahead.

Have elections coming up in 2024.

People oftentimes see these cases and say, it will take two years to come to trial.

What is your anticipation about when this case might realistically, assuming there is an agreement, what is your anticipation as to when this might possibly go to trial?

Mr. Richman: I am happy to be wrong, I would be really surprised if this case can go to trial before the election.

When one things of the motion practice, the possibility of serious litigation under the classified document procedures act, that brings an upload court schedule in.

When one things about the discovery that will have to be provided, it really is hard to imagine this case going forward before the election.

I am happy to be wrong on this.

Jack: This is unique and so many ways, we will have to see how it works out.

Thank you both so much.

You have been both so informative and helpful in giving us an opportunity to understand what this is all about.

We will hopefully be able to talk to you some more as we continue our coverage.

Thank you both so much for your contributions.

Be well, now.

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♪ Announcer: "MetroFocus" is made possible by Sue and Edgar Wachenheim III, Filomen M. D'Agostino Foundation, The Peter G. Peterson and Joan Ganz Cooney Fund, Bernard and Denise Schwartz, Barbara Hope Zuckerberg.

And by Jody and John Arnhold, Dr. Robert C. and Tina Sohn Foundation, the Ambrose Monell Foundation, Estate of Roland Karlen.

♪