Stephen A. Smith is a New York Times Bestselling Author, Executive Producer, host of ESPN's First Take, and co-host of NBA Countdown.
Stephen A. comments on Phoenix Suns player Kevin Durant calling him a clown and Joel Embiid’s testy exchange with Philadelphia Inquirer columnist Marcus Hayes. He interviews CNN Senior Legal Analyst Elie Honig about TMZ’s release of the NDA Sean “Diddy” Combs made guests sign to attend his parties and the legal cases Donald Trump will face after the election. He pays tribute to legendary music producer Quincy Jones on his passing, shares thoughts on rapper Drake’s feelings about Sacramento Kings’ DeMar DeRozan, and interviews former Obama speechwriter and Pod Save America host Jon Favreau about the country’s future.
Stephen A. comments on Phoenix Suns player Kevin Durant calling him a clown in The Atlantic and Philadelphia 76ers Joel Embiid’s testy exchange with Philadelphia Inquirer columnist Marcus Hayes,
Stephen A. interviews CNN Senior Legal Analyst Elie Honig about TMZ’s release of the NDA Sean Diddy Combs made guests sign to attend his parties and the legal cases Donald Trump will face after the election.
Support the show: http://www.youtube.com/@stephenasmith
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
Before I get to my next guests, let me say
this because I had to bring up something in regards
to P Diddy. We all know that he's incarcerated. He's
in a Brooklyn jail. Obviously, he's been charged with racketeering
and along with other charges that I've already brought up
on numerous occasions. And then law and behold. I'm reading
a story with TMZ and it's talking about how some
(00:24):
of the folks that showed up to Didy's parties all
had to sign non disclosure agreements and as a result,
it had me thinking, and it's got some people out
there thinking that maybe, just maybe he ain't gonna spend
the rest of his life in jail, Maybe just maybe
he might get off. I am not qualified to answer
such questions, ladies and gentlemen, So I brought somebody on
(00:44):
here that would shed some light to it, because he's
been on here before and he was absolutely spectacular when
he joined the show, joining me to break down the
NDA and more about the ongoing case. His attorney, a
CNN senior legal analyst, Ellie Hoenig, Ellie, what's going on, man?
Speaker 2 (00:59):
How are you?
Speaker 1 (00:59):
How's everything?
Speaker 2 (01:00):
Steven A Election Eve were ready this. This is gonna
be something to watch. I'm ready. I think people are
anxious and I'm ready to get it over.
Speaker 1 (01:06):
Yes, all of us are anxious and all of us
are ready to get it. Two things can be true,
and both of those things that you were anxious and
we're anxious, fit to be over and done with. But
let me get to Diddy for a second with you.
NDA non disclosure agreement. We read these stories, we hear
TMZ talking about it. A lot of people are thinking,
did he may end up winning? Because you know what,
(01:26):
these NDAs may be enforced and nobody may say anything
about him.
Speaker 2 (01:30):
How real is that possibility?
Speaker 1 (01:32):
Elie?
Speaker 3 (01:33):
I would not be overly optimistic if I was Shawn
Combs or his defense team because of these NDAs. I
don't think they're gonna do him much, if any good
in his criminal case. Now here's the deal. NDA's non
disclosure agreements. They sound bad, they're usually not great. They
don't look great, but they're not illegal. Ordinarily they are legal.
Corporations enter into them all the time. There are valid
purposes for NDAs and they're invalid in purposes. And what
(01:56):
courts are going to ask if somebody like Seawan Combs says, well,
this person can't testify me against because he or she
signed an NDA. The court's going to ask, first of all,
is this bad for public policy? And second of all,
did the person fully understand what they were signing?
Speaker 2 (02:11):
Are the terms clear? Did it make sense?
Speaker 3 (02:13):
Let's assume, just for the sake of argument, that the
terms were clear on these NDAs.
Speaker 2 (02:18):
I'm not so sure that's the case.
Speaker 3 (02:19):
But then the court's going to get to the other question,
which is is this against public policy?
Speaker 2 (02:24):
Would this be a bad idea?
Speaker 3 (02:26):
And the one thing that NDAs absolutely cannot overcome is
a criminal investigation. You cannot avoid testifying in a grand jury,
testifying in a criminal trial, turning over evidence by saying well,
I was a guest at one of these events and
I signed an NDA.
Speaker 2 (02:44):
Therefore I can't break the NDA. That will not work.
Speaker 3 (02:47):
Prosecutors will tell you we don't care about the NDA,
FBI will tell you we don't care about the NBA,
and the law will tell you that in that situation,
the NDA does not protect Sean Combs in a criminal case.
Speaker 1 (03:00):
What the hell are we missing? Ellie? I mean when
folks sign an NDAs, I mean, I mean we're thinking
of this, and that provides some level of security for
the people who drew up the NDAs because they don't
want folks talking their business and they don't want people
slandering them maligning them in any way. If you're telling
me the FBI, the District attorney's office, the courts, et
cetera don't care about it, then how significant is an
(03:22):
NDA in today's society?
Speaker 3 (03:23):
Yeah, so we see these, like I said, all the time,
corporations have people sign that. Donald Trump famously had people
sign NDAs if they worked for him. In other terminology,
sometimes people call it hush money. Here the way they
do work, though, let's assume everything's on the up and up.
Let's assume both parties understand what the NDA means and
they sign it willfully and voluntarily.
Speaker 2 (03:42):
Then the way it does work.
Speaker 3 (03:44):
Is if somebody speaks out publicly against Shaan Colms outside
the context of a criminal case, then they can be sued.
Speaker 2 (03:51):
And this is what sort of Donald Trump's NDAs are.
Speaker 3 (03:54):
A lot of us may not even realize that we've
signed them when we signed contracts.
Speaker 2 (03:58):
To work for certain employers.
Speaker 3 (04:00):
Often an NDA in there that says you cannot after
your employment disparage fill in the blank organization, and if
you do, then under this agreement, we get to sue you.
Speaker 2 (04:10):
Sometimes it says specifically how much money.
Speaker 3 (04:12):
It can say some crazy amount, ten million dollars, whatever,
and sometimes it just says we get to sue you
for damages. So the reason they do work is, again,
assuming that they're sort of written up in a legal way,
they can actually be used to prevent somebody from speaking
out in a public, non criminal setting.
Speaker 1 (04:31):
Well, it's interesting that you bring that up, because if
you know that, and you're educating us about that, you
certainly can surmise that did The's lawyers know that yet?
And still they file paperwork with the Southern District of
New York on Sunday asking the judge to order potential
witnesses in his criminal case to be quiet. What do
you make of that?
Speaker 3 (04:51):
No chance, no chance that motion gets granted A No
federal judge is going to say, well, you signed an NDA,
therefore you can be a witness at this trial. Now,
judges do and sometimes can, and sometimes do. Steve An
issue what we call gag orders. Again, we saw some
of these in the Trump cases where he says, okay,
parties to the case, federal government, DJ Shawn Combs, maybe
(05:12):
sometimes even witnesses. You're not to make out of court
public statements because I don't want you to potentially impact
the jury pool. I don't want to create pre trial
publicity that may be harmful to the defendant. Here, Shawn comes,
who does have constitutional rights. So you might see a
court say something like that, But no judge on the
planet is going to say, oh, well, I guess we
(05:34):
the criminal courts are out of luck because you signed
an NDA, so therefore we don't get your evidence. That
would imagine if that was the case. Imagine if you
could keep someone off of the witness stand or out
of a grand jury by just making them sign an NDA,
you would you would allow rich, powerful people to avoid accountability.
Like crazy, you just go, oh, sorry, can't testify, you
sign this thing.
Speaker 1 (05:53):
What is it that people are saying. They're saying that
this diddy NDA is not a standard NDA. What's different
about this one if it's not a standard one.
Speaker 2 (06:00):
Ah, So it's interesting.
Speaker 3 (06:01):
There's no one size fits all. I'd be interested to
see the specifics of what's in it. But what judges
are going to look at basically, look, there are If
you just went online and googled sample NDA, you would
see samples, and lawyers use samples all the time, the
key things that a judge is going to evaluate. So
let's say hypothetically one of these witnesses went forward and
did an interview forget about the criminal case, but did
(06:22):
an interview with some with TMZ, let's say, and said,
here's what I saw at this event where I signed
an NDA, and then Shaan comm.
Speaker 2 (06:30):
Said, oh, you violated the NBA.
Speaker 3 (06:32):
Now I'm suing you. The first thing the court's going
to do is, let's look at the NDA. Are the
terms clear? Are they fair? And is it bad for
public policy to keep this person from talking? A lot
of times these NDAs are very unequal in terms of
the bargaining power, right you just you don't even look?
Speaker 2 (06:48):
Yeah, sure, I agree.
Speaker 3 (06:49):
You know these people are often I assume the people
who are signing these were not represented by lawyers. So
I think there's going to be some problem enforcing these
NDAs anywhere, but again definitely not in criminal court.
Speaker 1 (07:01):
Is it true to some of the Jane and John
Doe victims have to be revealed to this case?
Speaker 3 (07:05):
Is that true? Eventually, they absolutely will if they're going
to testify at trial. It is absolutely standard procedure Stephen
that at this phase and we have an indictment, but
we're moving towards trial, prosecutors are going to protect the
identity of those witnesses. I think for obvious purposes. They
don't want people being intimidated tampered with, and so yes,
you often will say something like John Doe, Jane Doe,
(07:25):
witness one generic terms. But if and when there's a
trial in this state, and I think there will be,
then the people have to take the stand and they
can't be anonymous. In some very extraordinary situations, usually involving
someone who's a minor, there's ways to protect that person's identity.
Speaker 2 (07:41):
The defendant would still know who it is, but to
protect that person from the public. I actually did that once.
Speaker 3 (07:45):
We had a sixteen or fifteen year old who had
witnessed a robbery. We were able to allow him to
testify under certain circum you know, sort of more confidentially
than normal from another room by video feed. But ordinarily,
once you put someone on the stand, you have to
identify that person to the defense and anything that happens
in trial. Stephen is public record. You or I could
go watch, you can get the transcript. So yeah, eventually
(08:07):
these people's identities will be revealed. But look, the government.
When I say government, I mean prosecutors and FBI. They
have an obligation to protect these folks and make sure
they're taken care of and make sure that they're not
threatened or endangered.
Speaker 1 (08:18):
So you want here weeks ago compared two weeks ago
to where we are right now in light of the
inordinate amount of information that has come out, whether it
wo be NDA's or anything else, is did he in
any kind of beta situation now, at least perception wise
that he was Dare I say six weeks ago anything
(08:39):
like that.
Speaker 3 (08:40):
No, I think he's in a worse situation. As far
as we can tell them, we always have to say
we're not on the inside. We don't know what's happening
behind closed doors. But here's the biggest thing that's happened, Steven,
since we last talked, there's been a slew of civil
lawsuits right that have come forward and alleged again not criminal,
but sued Seawan Combs and said that he has sexually
assaulted and harassed people. Now here's what prosecutors are going
to do. They probably already knew about some of these folks,
(09:02):
and so fine, but I assure you some of these
people were previously unknown to prosecutors. Now, as a prosecutor,
you don't just take someone who's suit and go, well,
that person's good to go. We're gonna put that person
on our witness list. But you absolutely are going to
check that person out. You're going to ask the lawyer, hey,
I saw the allegation. I'd like to speak with this person.
You're going to cross check their information? Can I back
(09:23):
it up? Can I corroborate it against other evidence? And
if you conclude as a prosecutor, well three, two, one,
eight of these new people are credible, they get added
to your case. So I think mathematically that can only
mean more witnesses against seawan coms, even if only one
out of three to one out of four of them
pan out to the point prosecutors.
Speaker 1 (09:41):
Want for I let you get on out of here.
I we were missing neglecting to have you on the
air and not bring up Donald Trump and.
Speaker 2 (09:48):
His legal issues.
Speaker 1 (09:50):
Only from this perspective, I'm not going to ask you
to speculate about the election. That's not your bag. I
get that part. But here's where it becomes very, very
riveting to me. Has been made that you know, whether
it's sure or not. So many people believe the major
reason he's running for office right now is to stay
out of jail. If Donald Trump were to lose this election,
(10:12):
in light of the legal matters he has waiting for him,
if he is not President elect Donald Trump at some
point in time this week, what's his future looking like, Ellie.
Speaker 2 (10:26):
I don't think.
Speaker 3 (10:26):
I don't think we've ever had a moment in American history,
Steven where somebody had as much at stake as Donald
Trump does right now.
Speaker 2 (10:34):
Just focusing on Donald Trump himself. Scenario A is he
wins the White House.
Speaker 3 (10:37):
If that happens, these cases are all either dead or
they're postponed until he's out. He's never gonna get tried.
He's never going to go to prison. If he wins
this election. With the two federal cases, he'll either dismiss them,
have his Attorney general dismissed them, fire Jacksmith. There's a
bunch of things he can do, but the two federal
cases will die. The two state cases in New York
and Georgia almost certainly will have to be on hold
(10:58):
until he's done being president.
Speaker 2 (11:00):
So that's scenario A. He's in the White House.
Speaker 3 (11:03):
Scenario B, he loses, and he's going to have to
wrestle with all four of these cases. The Manhattan case,
the hush money case that he was convicted on, he
said to be sentenced in three weeks. At the end
of November, he will have a sentencing date set now.
Even if he gets prison, and I think it's fifty
to fifty whether he gets prison, he's almost certainly not
going to get sent away right away. He will get
to do his appeals first, but that could well end
(11:23):
up in a prison sentence for him. He's going to
have to deal with the two federal cases, the January
sixth case and the mar Lago documents case. He may
have to deal with the Georgia case, although it's looking
like that case may end up getting dismissed.
Speaker 2 (11:34):
But he's going to have a three or four front
criminal legal battle. So scenario A he's in the White House.
Speaker 3 (11:41):
Scenario B, he spends the next two three years fighting
for his freedom in the criminal courts and could end
up behind bars.
Speaker 1 (11:49):
And to be clear, even though it's unlikely that she
would do so, could he be? Could he be? Does
does she have the license the right as president of
the United State it's too pard in him from these crimes?
Or is it just a federal thing. He can't do
anything for him with state issues.
Speaker 2 (12:05):
So two of the four cases are federal.
Speaker 3 (12:08):
And with respect to those two cases, not just Kamala
Harris if she were to win, but Joe Biden.
Speaker 2 (12:12):
I mean, Joe Biden still has another couple of months
in office.
Speaker 3 (12:14):
But yes, a president can absolutely issue a pardon to
Donald Trump. We saw some precedent for that back in
the seventies when Gerald Ford pardoned Richard Nixon before he
could be indicted.
Speaker 2 (12:26):
So yeah, I don't think it's at all.
Speaker 3 (12:29):
Likely that Joe Biden would make one of his final
acts in office a pardon of Donald Trump. And I
wouldn't want to be Kamala Harris in that situation. I
wouldn't bet that she will pardon him either. I should
say another possibility as a commutation, It could be that
they say, well, let's let these cases play out, let's
let him go to trial, and then we'll see what
the sentence is and maybe three years two three years
(12:49):
now he's been convicted and sentenced to X amount of
time in prison, and somebody, whoever the president is, might
make a decision, well, we'll leave his conviction on the books.
I don't want to issue a full pardon like Nixon.
I'm not sure he needs to go to prison again.
I think that's unlikely, but you're absolutely right Stephen that
that's possible.
Speaker 2 (13:05):
Now, the two state cases.
Speaker 3 (13:06):
New York and Georgia, there's nothing the president can do about.
In New York, only the governor can issue a pardon.
I don't Thinkathy Hokl, the Democratic governor of New York,
is likely to do that. And in Georgia there's this
board of pardons that has to recommend it to the governor,
which doesn't look especially likely to me either.
Speaker 1 (13:22):
Last question, what happens at the Supreme Court if either
side wins?
Speaker 2 (13:26):
Wow? I mean, so the stakes here.
Speaker 3 (13:29):
Everyone's rightly focused on the White House and Congress, which
are all at stake on Tuesday, but the Supreme courts
at state too. I mean, right now it's six to three,
six conservatives all appointed by Republicans, three liberals, all appointed
by Democrats. If Donald Trump wins that majority is two
things are going to happen. One, you could see retirements
from the two oldest justices on the Court, Thomas and Aldo,
(13:50):
both of whom are in their seventies mid seventies. And
if that happens, they're going to be replaced with new
Conservatives who are given president forty five fifty years old,
they're going to hold those seats for another twenty five
thirty years. On the other side, if Kamala Harris wins,
then we might see Justice Soda Mayor, who's the oldest
of the three Liberals. She's seventy now, she might retire,
(14:11):
which would then give Kamala Harris the ability to do
what happened we saw happen under the Biden administration when
Stephen Bryer retired and then Kataji Brown Jackson, who's thirty
years younger, twenty five years younger, came in.
Speaker 2 (14:21):
We could see the same thing.
Speaker 3 (14:22):
And that doesn't even get into like God forbid, what
if someone were to pass away. But if someone does
die in the next four years, then that could actually change.
The six to three balance could become seven to two Conservatives.
If Trump wins, could become five to four. Even if
two Conservatives were to pass away could end up with
a five to four liberal court by the end of
this So and Steven, just a little fact for you here.
(14:44):
Clarence Thomas is about to begin his service as a
Supreme Court justice in the tenth presidential administration. He was
appointed in ninety one by Bush. And if he makes
it to the end of whoever wins, whether it's Harris
or Trump, if he makes it to the end of
twenty twenty eight, he will become the single longest serving
justice in US history. Right now, he's second to a
(15:05):
guy named William O.
Speaker 2 (15:06):
Douglas.
Speaker 3 (15:07):
So there's a little if it comes up on Jeopardy
for you under Supreme Court trivia, you'll have that locked in.
Speaker 1 (15:12):
Ellie honeg. You are absolutely positively You're just fabulous, man.
I really really appreciate you showing up and coming on
the show for me again right before the election. Really
appreciate you so much. Thanks, my man, and we'll talk sooner,
right you take care
Speaker 3 (15:25):
Thanks Steven, great talking, he says him.
Before I get to my next guests, let me say
this because I had to bring up something in regards
to P Diddy. We all know that he's incarcerated. He's
in a Brooklyn jail. Obviously, he's been charged with racketeering
and along with other charges that I've already brought up
on numerous occasions. And then law and behold. I'm reading
a story with TMZ and it's talking about how some
(00:24):
of the folks that showed up to Didy's parties all
had to sign non disclosure agreements and as a result,
it had me thinking, and it's got some people out
there thinking that maybe, just maybe he ain't gonna spend
the rest of his life in jail, Maybe just maybe
he might get off. I am not qualified to answer
such questions, ladies and gentlemen, So I brought somebody on
(00:44):
here that would shed some light to it, because he's
been on here before and he was absolutely spectacular when
he joined the show, joining me to break down the
NDA and more about the ongoing case. His attorney, a
CNN senior legal analyst, Ellie Hoenig, Ellie, what's going on, man?
Speaker 2 (00:59):
How are you?
Speaker 1 (00:59):
How's everything?
Speaker 2 (01:00):
Steven A Election Eve were ready this. This is gonna
be something to watch. I'm ready. I think people are
anxious and I'm ready to get it over.
Speaker 1 (01:06):
Yes, all of us are anxious and all of us
are ready to get it. Two things can be true,
and both of those things that you were anxious and
we're anxious, fit to be over and done with. But
let me get to Diddy for a second with you.
NDA non disclosure agreement. We read these stories, we hear
TMZ talking about it. A lot of people are thinking,
did he may end up winning? Because you know what,
(01:26):
these NDAs may be enforced and nobody may say anything
about him.
Speaker 2 (01:30):
How real is that possibility?
Speaker 1 (01:32):
Elie?
Speaker 3 (01:33):
I would not be overly optimistic if I was Shawn
Combs or his defense team because of these NDAs. I
don't think they're gonna do him much, if any good
in his criminal case. Now here's the deal. NDA's non
disclosure agreements. They sound bad, they're usually not great. They
don't look great, but they're not illegal. Ordinarily they are legal.
Corporations enter into them all the time. There are valid
purposes for NDAs and they're invalid in purposes. And what
(01:56):
courts are going to ask if somebody like Seawan Combs says, well,
this person can't testify me against because he or she
signed an NDA. The court's going to ask, first of all,
is this bad for public policy? And second of all,
did the person fully understand what they were signing?
Speaker 2 (02:11):
Are the terms clear? Did it make sense?
Speaker 3 (02:13):
Let's assume, just for the sake of argument, that the
terms were clear on these NDAs.
Speaker 2 (02:18):
I'm not so sure that's the case.
Speaker 3 (02:19):
But then the court's going to get to the other question,
which is is this against public policy?
Speaker 2 (02:24):
Would this be a bad idea?
Speaker 3 (02:26):
And the one thing that NDAs absolutely cannot overcome is
a criminal investigation. You cannot avoid testifying in a grand jury,
testifying in a criminal trial, turning over evidence by saying well,
I was a guest at one of these events and
I signed an NDA.
Speaker 2 (02:44):
Therefore I can't break the NDA. That will not work.
Speaker 3 (02:47):
Prosecutors will tell you we don't care about the NDA,
FBI will tell you we don't care about the NBA,
and the law will tell you that in that situation,
the NDA does not protect Sean Combs in a criminal case.
Speaker 1 (03:00):
What the hell are we missing? Ellie? I mean when
folks sign an NDAs, I mean, I mean we're thinking
of this, and that provides some level of security for
the people who drew up the NDAs because they don't
want folks talking their business and they don't want people
slandering them maligning them in any way. If you're telling
me the FBI, the District attorney's office, the courts, et
cetera don't care about it, then how significant is an
(03:22):
NDA in today's society?
Speaker 3 (03:23):
Yeah, so we see these, like I said, all the time,
corporations have people sign that. Donald Trump famously had people
sign NDAs if they worked for him. In other terminology,
sometimes people call it hush money. Here the way they
do work, though, let's assume everything's on the up and up.
Let's assume both parties understand what the NDA means and
they sign it willfully and voluntarily.
Speaker 2 (03:42):
Then the way it does work.
Speaker 3 (03:44):
Is if somebody speaks out publicly against Shaan Colms outside
the context of a criminal case, then they can be sued.
Speaker 2 (03:51):
And this is what sort of Donald Trump's NDAs are.
Speaker 3 (03:54):
A lot of us may not even realize that we've
signed them when we signed contracts.
Speaker 2 (03:58):
To work for certain employers.
Speaker 3 (04:00):
Often an NDA in there that says you cannot after
your employment disparage fill in the blank organization, and if
you do, then under this agreement, we get to sue you.
Speaker 2 (04:10):
Sometimes it says specifically how much money.
Speaker 3 (04:12):
It can say some crazy amount, ten million dollars, whatever,
and sometimes it just says we get to sue you
for damages. So the reason they do work is, again,
assuming that they're sort of written up in a legal way,
they can actually be used to prevent somebody from speaking
out in a public, non criminal setting.
Speaker 1 (04:31):
Well, it's interesting that you bring that up, because if
you know that, and you're educating us about that, you
certainly can surmise that did The's lawyers know that yet?
And still they file paperwork with the Southern District of
New York on Sunday asking the judge to order potential
witnesses in his criminal case to be quiet. What do
you make of that?
Speaker 3 (04:51):
No chance, no chance that motion gets granted A No
federal judge is going to say, well, you signed an NDA,
therefore you can be a witness at this trial. Now,
judges do and sometimes can, and sometimes do. Steve An
issue what we call gag orders. Again, we saw some
of these in the Trump cases where he says, okay,
parties to the case, federal government, DJ Shawn Combs, maybe
(05:12):
sometimes even witnesses. You're not to make out of court
public statements because I don't want you to potentially impact
the jury pool. I don't want to create pre trial
publicity that may be harmful to the defendant. Here, Shawn comes,
who does have constitutional rights. So you might see a
court say something like that, But no judge on the
planet is going to say, oh, well, I guess we
(05:34):
the criminal courts are out of luck because you signed
an NDA, so therefore we don't get your evidence. That
would imagine if that was the case. Imagine if you
could keep someone off of the witness stand or out
of a grand jury by just making them sign an NDA,
you would you would allow rich, powerful people to avoid accountability.
Like crazy, you just go, oh, sorry, can't testify, you
sign this thing.
Speaker 1 (05:53):
What is it that people are saying. They're saying that
this diddy NDA is not a standard NDA. What's different
about this one if it's not a standard one.
Speaker 2 (06:00):
Ah, So it's interesting.
Speaker 3 (06:01):
There's no one size fits all. I'd be interested to
see the specifics of what's in it. But what judges
are going to look at basically, look, there are If
you just went online and googled sample NDA, you would
see samples, and lawyers use samples all the time, the
key things that a judge is going to evaluate. So
let's say hypothetically one of these witnesses went forward and
did an interview forget about the criminal case, but did
(06:22):
an interview with some with TMZ, let's say, and said,
here's what I saw at this event where I signed
an NDA, and then Shaan comm.
Speaker 2 (06:30):
Said, oh, you violated the NBA.
Speaker 3 (06:32):
Now I'm suing you. The first thing the court's going
to do is, let's look at the NDA. Are the
terms clear? Are they fair? And is it bad for
public policy to keep this person from talking? A lot
of times these NDAs are very unequal in terms of
the bargaining power, right you just you don't even look?
Speaker 2 (06:48):
Yeah, sure, I agree.
Speaker 3 (06:49):
You know these people are often I assume the people
who are signing these were not represented by lawyers. So
I think there's going to be some problem enforcing these
NDAs anywhere, but again definitely not in criminal court.
Speaker 1 (07:01):
Is it true to some of the Jane and John
Doe victims have to be revealed to this case?
Speaker 3 (07:05):
Is that true? Eventually, they absolutely will if they're going
to testify at trial. It is absolutely standard procedure Stephen
that at this phase and we have an indictment, but
we're moving towards trial, prosecutors are going to protect the
identity of those witnesses. I think for obvious purposes. They
don't want people being intimidated tampered with, and so yes,
you often will say something like John Doe, Jane Doe,
(07:25):
witness one generic terms. But if and when there's a
trial in this state, and I think there will be,
then the people have to take the stand and they
can't be anonymous. In some very extraordinary situations, usually involving
someone who's a minor, there's ways to protect that person's identity.
Speaker 2 (07:41):
The defendant would still know who it is, but to
protect that person from the public. I actually did that once.
Speaker 3 (07:45):
We had a sixteen or fifteen year old who had
witnessed a robbery. We were able to allow him to
testify under certain circum you know, sort of more confidentially
than normal from another room by video feed. But ordinarily,
once you put someone on the stand, you have to
identify that person to the defense and anything that happens
in trial. Stephen is public record. You or I could
go watch, you can get the transcript. So yeah, eventually
(08:07):
these people's identities will be revealed. But look, the government.
When I say government, I mean prosecutors and FBI. They
have an obligation to protect these folks and make sure
they're taken care of and make sure that they're not
threatened or endangered.
Speaker 1 (08:18):
So you want here weeks ago compared two weeks ago
to where we are right now in light of the
inordinate amount of information that has come out, whether it
wo be NDA's or anything else, is did he in
any kind of beta situation now, at least perception wise
that he was Dare I say six weeks ago anything
(08:39):
like that.
Speaker 3 (08:40):
No, I think he's in a worse situation. As far
as we can tell them, we always have to say
we're not on the inside. We don't know what's happening
behind closed doors. But here's the biggest thing that's happened, Steven,
since we last talked, there's been a slew of civil
lawsuits right that have come forward and alleged again not criminal,
but sued Seawan Combs and said that he has sexually
assaulted and harassed people. Now here's what prosecutors are going
to do. They probably already knew about some of these folks,
(09:02):
and so fine, but I assure you some of these
people were previously unknown to prosecutors. Now, as a prosecutor,
you don't just take someone who's suit and go, well,
that person's good to go. We're gonna put that person
on our witness list. But you absolutely are going to
check that person out. You're going to ask the lawyer, hey,
I saw the allegation. I'd like to speak with this person.
You're going to cross check their information? Can I back
(09:23):
it up? Can I corroborate it against other evidence? And
if you conclude as a prosecutor, well three, two, one,
eight of these new people are credible, they get added
to your case. So I think mathematically that can only
mean more witnesses against seawan coms, even if only one
out of three to one out of four of them
pan out to the point prosecutors.
Speaker 1 (09:41):
Want for I let you get on out of here.
I we were missing neglecting to have you on the
air and not bring up Donald Trump and.
Speaker 2 (09:48):
His legal issues.
Speaker 1 (09:50):
Only from this perspective, I'm not going to ask you
to speculate about the election. That's not your bag. I
get that part. But here's where it becomes very, very
riveting to me. Has been made that you know, whether
it's sure or not. So many people believe the major
reason he's running for office right now is to stay
out of jail. If Donald Trump were to lose this election,
(10:12):
in light of the legal matters he has waiting for him,
if he is not President elect Donald Trump at some
point in time this week, what's his future looking like, Ellie.
Speaker 2 (10:26):
I don't think.
Speaker 3 (10:26):
I don't think we've ever had a moment in American history,
Steven where somebody had as much at stake as Donald
Trump does right now.
Speaker 2 (10:34):
Just focusing on Donald Trump himself. Scenario A is he
wins the White House.
Speaker 3 (10:37):
If that happens, these cases are all either dead or
they're postponed until he's out. He's never gonna get tried.
He's never going to go to prison. If he wins
this election. With the two federal cases, he'll either dismiss them,
have his Attorney general dismissed them, fire Jacksmith. There's a
bunch of things he can do, but the two federal
cases will die. The two state cases in New York
and Georgia almost certainly will have to be on hold
(10:58):
until he's done being president.
Speaker 2 (11:00):
So that's scenario A. He's in the White House.
Speaker 3 (11:03):
Scenario B, he loses, and he's going to have to
wrestle with all four of these cases. The Manhattan case,
the hush money case that he was convicted on, he
said to be sentenced in three weeks. At the end
of November, he will have a sentencing date set now.
Even if he gets prison, and I think it's fifty
to fifty whether he gets prison, he's almost certainly not
going to get sent away right away. He will get
to do his appeals first, but that could well end
(11:23):
up in a prison sentence for him. He's going to
have to deal with the two federal cases, the January
sixth case and the mar Lago documents case. He may
have to deal with the Georgia case, although it's looking
like that case may end up getting dismissed.
Speaker 2 (11:34):
But he's going to have a three or four front
criminal legal battle. So scenario A he's in the White House.
Speaker 3 (11:41):
Scenario B, he spends the next two three years fighting
for his freedom in the criminal courts and could end
up behind bars.
Speaker 1 (11:49):
And to be clear, even though it's unlikely that she
would do so, could he be? Could he be? Does
does she have the license the right as president of
the United State it's too pard in him from these crimes?
Or is it just a federal thing. He can't do
anything for him with state issues.
Speaker 2 (12:05):
So two of the four cases are federal.
Speaker 3 (12:08):
And with respect to those two cases, not just Kamala
Harris if she were to win, but Joe Biden.
Speaker 2 (12:12):
I mean, Joe Biden still has another couple of months
in office.
Speaker 3 (12:14):
But yes, a president can absolutely issue a pardon to
Donald Trump. We saw some precedent for that back in
the seventies when Gerald Ford pardoned Richard Nixon before he
could be indicted.
Speaker 2 (12:26):
So yeah, I don't think it's at all.
Speaker 3 (12:29):
Likely that Joe Biden would make one of his final
acts in office a pardon of Donald Trump. And I
wouldn't want to be Kamala Harris in that situation. I
wouldn't bet that she will pardon him either. I should
say another possibility as a commutation, It could be that
they say, well, let's let these cases play out, let's
let him go to trial, and then we'll see what
the sentence is and maybe three years two three years
(12:49):
now he's been convicted and sentenced to X amount of
time in prison, and somebody, whoever the president is, might
make a decision, well, we'll leave his conviction on the books.
I don't want to issue a full pardon like Nixon.
I'm not sure he needs to go to prison again.
I think that's unlikely, but you're absolutely right Stephen that
that's possible.
Speaker 2 (13:05):
Now, the two state cases.
Speaker 3 (13:06):
New York and Georgia, there's nothing the president can do about.
In New York, only the governor can issue a pardon.
I don't Thinkathy Hokl, the Democratic governor of New York,
is likely to do that. And in Georgia there's this
board of pardons that has to recommend it to the governor,
which doesn't look especially likely to me either.
Speaker 1 (13:22):
Last question, what happens at the Supreme Court if either
side wins?
Speaker 2 (13:26):
Wow? I mean, so the stakes here.
Speaker 3 (13:29):
Everyone's rightly focused on the White House and Congress, which
are all at stake on Tuesday, but the Supreme courts
at state too. I mean, right now it's six to three,
six conservatives all appointed by Republicans, three liberals, all appointed
by Democrats. If Donald Trump wins that majority is two
things are going to happen. One, you could see retirements
from the two oldest justices on the Court, Thomas and Aldo,
(13:50):
both of whom are in their seventies mid seventies. And
if that happens, they're going to be replaced with new
Conservatives who are given president forty five fifty years old,
they're going to hold those seats for another twenty five
thirty years. On the other side, if Kamala Harris wins,
then we might see Justice Soda Mayor, who's the oldest
of the three Liberals. She's seventy now, she might retire,
(14:11):
which would then give Kamala Harris the ability to do
what happened we saw happen under the Biden administration when
Stephen Bryer retired and then Kataji Brown Jackson, who's thirty
years younger, twenty five years younger, came in.
Speaker 2 (14:21):
We could see the same thing.
Speaker 3 (14:22):
And that doesn't even get into like God forbid, what
if someone were to pass away. But if someone does
die in the next four years, then that could actually change.
The six to three balance could become seven to two Conservatives.
If Trump wins, could become five to four. Even if
two Conservatives were to pass away could end up with
a five to four liberal court by the end of
this So and Steven, just a little fact for you here.
(14:44):
Clarence Thomas is about to begin his service as a
Supreme Court justice in the tenth presidential administration. He was
appointed in ninety one by Bush. And if he makes
it to the end of whoever wins, whether it's Harris
or Trump, if he makes it to the end of
twenty twenty eight, he will become the single longest serving
justice in US history. Right now, he's second to a
(15:05):
guy named William O.
Speaker 2 (15:06):
Douglas.
Speaker 3 (15:07):
So there's a little if it comes up on Jeopardy
for you under Supreme Court trivia, you'll have that locked in.
Speaker 1 (15:12):
Ellie honeg. You are absolutely positively You're just fabulous, man.
I really really appreciate you showing up and coming on
the show for me again right before the election. Really
appreciate you so much. Thanks, my man, and we'll talk sooner,
right you take care
Speaker 3 (15:25):
Thanks Steven, great talking, he says him.
Host
Stephen A. Smith
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