WEBVTT - Breaking Down the Trump Indictment with Andy McCarthy 0:00:00.040 --> 0:00:03.000 We've been covering the indictment of Donald Trump in the 0:00:03.040 --> 0:00:06.000 past couple of episodes. Today we're going to dig in, 0:00:06.360 --> 0:00:09.320 just get into great detail about the thirty four accounts 0:00:09.320 --> 0:00:12.080 he's facing, the case that Alvin Bragg is trying to 0:00:12.119 --> 0:00:15.320 make against him, and if he will be successful. We'll 0:00:15.360 --> 0:00:18.479 also get into what options Donald Trump has in front 0:00:18.480 --> 0:00:23.200 of him before his December hearing that he's facing. We're 0:00:23.239 --> 0:00:25.599 going to get into all of it with Annie McCarthy. 0:00:25.640 --> 0:00:28.880 He's a Fox News contributor a contributing editor at The 0:00:28.960 --> 0:00:32.320 National Review. He's also a former Chief Assistant United States 0:00:32.360 --> 0:00:35.040 Attorney and the Southern District of New York, so he 0:00:35.120 --> 0:00:39.320 understands the New York court system. So stay tuned for 0:00:39.440 --> 0:00:48.479 this episode with Annie McCarthy. So, Annie McCarthy, I'm so 0:00:48.560 --> 0:00:50.760 glad to have you on the show. I've just obviously 0:00:50.800 --> 0:00:53.400 I'm familiar with your work work colleagues at Fox, but 0:00:53.479 --> 0:00:56.920 just in watching you on TV and reading everything you've written, 0:00:56.920 --> 0:00:59.080 you just do such a good job just thoroughly breaking 0:00:59.080 --> 0:01:01.520 this down. I'm so thankful for you to take in 0:01:01.560 --> 0:01:04.160 the time to join the show. Well, thanks so much, Lisa, 0:01:04.160 --> 0:01:07.520 It's great to be here, you know, so Andy. Obviously 0:01:07.560 --> 0:01:11.920 a wild time in American history. This is clearly unprecedented. 0:01:12.000 --> 0:01:14.839 So thirty four felon accounts. Can you take us through 0:01:15.000 --> 0:01:19.120 in detail what exactly Alvin Bragg is accusing Donald Trump 0:01:19.160 --> 0:01:24.200 of doing. Well, the basic crime in terms of what 0:01:24.240 --> 0:01:28.240 the legal counts are, is very different, Lisa, from the story. 0:01:28.880 --> 0:01:30.679 So why don't Why don't I start with what the 0:01:30.720 --> 0:01:34.120 crimes are and then I can get to why the 0:01:34.160 --> 0:01:38.479 story is incoherent? That'd be great. So the crimes are 0:01:39.080 --> 0:01:43.759 what in New York is generally the misdemeanor of falsifying 0:01:44.160 --> 0:01:48.920 business records and to commit that crime, which is you 0:01:48.920 --> 0:01:51.920 would get less than a year from in jail, even 0:01:51.960 --> 0:01:57.080 on the books. But in New York, Alvin Bragg basically 0:01:57.120 --> 0:01:59.320 doesn't prosecute anything. So this is the kind of case 0:01:59.360 --> 0:02:05.400 that wouldn't need to be brought against somebody normally. But 0:02:05.520 --> 0:02:08.720 what you would have to prove is that somebody made 0:02:08.800 --> 0:02:14.160 false entries in their business records and they It's not 0:02:14.280 --> 0:02:16.040 enough to show that the entries of false. You have 0:02:16.080 --> 0:02:18.560 to show that the person did it with fraudulent intent, 0:02:19.040 --> 0:02:22.400 which usually means that you're trying to swindle someone, right, 0:02:22.400 --> 0:02:26.240 You're trying to take money or property. The state argues 0:02:26.240 --> 0:02:28.920 for a kind of a more broad based definition than that, 0:02:28.960 --> 0:02:33.560 but for now, that's that's pretty much what falsifying business 0:02:33.600 --> 0:02:38.560 records means. Now in New York, falsifying business records only 0:02:38.639 --> 0:02:42.720 has a two year statute of limitations. And the course 0:02:42.760 --> 0:02:46.120 of behavior that we're talking about happened in twenty seventeen, 0:02:46.919 --> 0:02:49.919 So ordinarily, if that's what you charge, he'd be out 0:02:49.919 --> 0:02:52.680 of luck now because that would have been time barred 0:02:52.720 --> 0:02:57.280 by probably by twenty nineteen, no later than twenty twenty. 0:02:58.040 --> 0:03:00.320 But what Bragg is trying to do, and the reason 0:03:00.360 --> 0:03:03.040 he had to go to a grand jury is juice 0:03:03.160 --> 0:03:06.720 up into a felony from a misdemeanor. The reason I 0:03:06.760 --> 0:03:08.720 say that's why he went to the grand jury. In 0:03:08.760 --> 0:03:13.119 the United States, the Fifth Amendment guarantees you the right 0:03:13.160 --> 0:03:17.280 to be indicted by a grand jury, which means the 0:03:17.320 --> 0:03:20.480 community has to make sure that the government has enough 0:03:20.480 --> 0:03:22.760 evidence before the case can proceed to trial. So what 0:03:22.840 --> 0:03:24.919 a grand jury is supposed to do is find probable 0:03:24.960 --> 0:03:28.800 cause that the government has a case, and then you 0:03:28.880 --> 0:03:33.239 move on to the indictment stage. But under the Fifth Amendment, 0:03:33.320 --> 0:03:38.080 you only get an indictment right for a felony. For 0:03:38.160 --> 0:03:43.080 a misdemeanor, the prosecutor can charge himself by what's known 0:03:43.080 --> 0:03:46.120 as an information. So here the reason Bragg was in 0:03:46.160 --> 0:03:47.840 the grand jury as he wanted this to be a 0:03:47.880 --> 0:03:53.200 felony case. And in New York, you can inflate the 0:03:55.360 --> 0:04:00.280 falsification of records from a misdemeanor into a felony if 0:04:00.280 --> 0:04:03.440 you can show that by committing the misdemeanor, committing the 0:04:03.480 --> 0:04:09.040 falsification of records, the defendant was trying to conceal another crime. 0:04:10.240 --> 0:04:14.320 So what he alleges is that Trump was trying to 0:04:14.360 --> 0:04:18.920 conceal another crime by making full centuries in the Trump 0:04:19.000 --> 0:04:22.600 organization records, or at least causing false entries to be made. 0:04:22.960 --> 0:04:29.320 So that's the thirty four counts are all basically that charge. 0:04:30.080 --> 0:04:33.479 And the way he gets to thirty four is there 0:04:33.560 --> 0:04:37.960 was a series of payments that Trump made to Michael Cohen. 0:04:38.680 --> 0:04:41.719 Michael Cohen used to be Trump's lawyer. He's the one 0:04:41.760 --> 0:04:45.640 who laid out the money for this hush money agreement, 0:04:45.640 --> 0:04:50.240 which is known as a non disclosure agreement. He paid 0:04:50.279 --> 0:04:54.599 one hundred and thirty thousand dollars to Stormy Daniels, the 0:04:54.680 --> 0:04:59.040 porn star whose real name is Stephanie Clifford. And then 0:04:59.440 --> 0:05:06.919 the arrange with Trump was to repay Cohen over the 0:05:07.040 --> 0:05:10.080 months of twenty seventeen, so basically he got a monthly 0:05:10.839 --> 0:05:14.680 check and to bring that about. What would happen is 0:05:15.320 --> 0:05:20.240 Cohen would provide an invoice. Either Trump or the Trump 0:05:20.360 --> 0:05:22.600 organization would write a check for him, and then an 0:05:22.720 --> 0:05:26.640 entry went into the books. So even though this whole 0:05:27.400 --> 0:05:30.599 thing is really one payback of a loan, it was 0:05:30.640 --> 0:05:36.160 split into installments monthly. So Bragg basically broke it down 0:05:36.240 --> 0:05:39.760 into those installments, but not content with that. He broke 0:05:39.800 --> 0:05:43.520 down each installment to three separate acts, the invoice, the 0:05:43.600 --> 0:05:47.000 writing of the check, and the book entry. So that's 0:05:47.000 --> 0:05:50.360 how he gets up to thirty four. And we can 0:05:50.360 --> 0:05:52.839 talk about that, but that's kind of a practice that 0:05:52.960 --> 0:05:56.919 the Justice Department in federal cases tells prosecutors they shouldn't do. 0:05:57.360 --> 0:06:00.520 I think when I tried the blind shake in nineties 0:06:00.560 --> 0:06:04.640 for you know, terrorism and mass murder conspiracies and all 0:06:04.640 --> 0:06:07.920 that stuff, I think I brought five counts. So this 0:06:08.000 --> 0:06:12.279 is thirty four for the heavy duty crime undoubtedly of 0:06:12.320 --> 0:06:15.520 falsifying business records. So anyway, those are the those are 0:06:15.520 --> 0:06:19.840 the legal that's the legal counts, and I think it's 0:06:19.880 --> 0:06:25.159 important Lisa to say counts, because those are allegations. I 0:06:25.240 --> 0:06:27.760 have a hard time calling them crimes because I think 0:06:27.760 --> 0:06:29.800 one of the big flaws in this indictment is that 0:06:29.839 --> 0:06:34.440 he hasn't actually stayed at a crime, because that the 0:06:34.480 --> 0:06:38.880 felony that we just discussed. You're supposed to show that 0:06:38.920 --> 0:06:42.839 the person falsified the records to conceal another crime. Bragg 0:06:42.920 --> 0:06:45.640 does not state in the indictment what the other crime 0:06:45.720 --> 0:06:50.240 is that Trump supposedly was concealing. So right off the bat, 0:06:50.279 --> 0:06:52.720 I think he's got a problem in not stating a crime, 0:06:52.760 --> 0:06:56.280 because that's really the main function of a indictment is 0:06:56.320 --> 0:07:00.360 to tell the defendant what he's accused of doing so 0:07:00.400 --> 0:07:02.640 that he can prepare his defense. So I think, just 0:07:02.720 --> 0:07:07.159 as a legal, technical, clinical matter, the indictment fails in 0:07:07.279 --> 0:07:11.160 what the basic purpose of an indictment is. But let 0:07:11.160 --> 0:07:14.640 me just say quickly the reason I say the story 0:07:14.920 --> 0:07:22.480 is incoherent is Bragg's rationale for charging this case when 0:07:22.520 --> 0:07:25.480 it's perfectly obvious that no one other than Donald Trump 0:07:25.560 --> 0:07:31.080 would ever have been charged with this is that Bragg's 0:07:31.120 --> 0:07:34.920 theory is Trump stole the twenty sixteen election by fraud, 0:07:35.520 --> 0:07:40.840 namely by not disclosing these arrangements, these hush money deals, 0:07:41.200 --> 0:07:44.160 and there are at least he lays out three of 0:07:44.160 --> 0:07:47.560 them in the Statement of Facts that he filed along 0:07:47.600 --> 0:07:52.480 with the indictment. But the thing about it is non 0:07:52.480 --> 0:07:55.880 disclosure agreements are legal. In fact, there are a staple 0:07:56.160 --> 0:07:59.960 in the civil justice system of how litigation gets closed 0:08:00.160 --> 0:08:04.440 out and people make agreements. We frequently hear that, you know, 0:08:04.960 --> 0:08:07.400 a lawsuit was dropped and the party settled and it 0:08:07.520 --> 0:08:09.840 was an exchange of money and everybody agreed not to 0:08:09.840 --> 0:08:12.600 talk about it anymore. That happens all the time. So 0:08:13.520 --> 0:08:17.560 there's nothing illegal about non disclosure agreements. So, according to 0:08:17.600 --> 0:08:26.080 brag Trump stole the twenty sixteen election by fraud. And 0:08:26.160 --> 0:08:29.080 yet when you look at the indictment, the charges run 0:08:29.600 --> 0:08:35.240 from February fourteenth, twenty seventeen, to December fifth, twenty seventeen, 0:08:35.800 --> 0:08:40.840 so they start basically four months after the twenty sixteen 0:08:40.880 --> 0:08:45.000 election was already over. It's inconceivable that you could commit 0:08:45.040 --> 0:08:47.760 a fraud in twenty sixteen based on acts that you 0:08:47.760 --> 0:08:51.800 don't carry out until months after the twenty sixteen event 0:08:51.960 --> 0:08:55.760 is over. So the think it doesn't make any sense factual. 0:08:55.920 --> 0:08:57.720 So why do you think he went with the twenty 0:08:57.840 --> 0:09:01.080 seventeen date? What I had heard is I think the 0:09:01.120 --> 0:09:04.880 transaction was in I believe October of twenty sixteen. So 0:09:05.000 --> 0:09:07.720 why do you think he went with twenty seventeen? Do 0:09:07.760 --> 0:09:10.760 you know the basis of that? Yeah, the same reason 0:09:10.840 --> 0:09:13.640 that he only charged it gets when it got down 0:09:13.640 --> 0:09:18.199 to counts. He only charged the Stormy Daniels nondisclosure agreement, 0:09:19.480 --> 0:09:23.000 not the transactions attendant to the other two hush money 0:09:23.080 --> 0:09:25.160 arrangements that they talk about in the statement of facts. 0:09:25.559 --> 0:09:29.240 The reason is he needs Trump to be an active participant. 0:09:29.760 --> 0:09:32.920 What happened in October of twenty sixteen is that Michael 0:09:33.000 --> 0:09:37.440 Cohen paid the money to Stormy Daniels. What happened from 0:09:37.559 --> 0:09:41.880 February to December of twenty seventeen is that Trump paid 0:09:42.160 --> 0:09:45.920 Michael Cohen. So in order to get the counts against Trump, 0:09:47.120 --> 0:09:50.720 he has to go to Trump's personal activity. So that's 0:09:50.800 --> 0:09:54.240 the stuff that happened in twenty seventeen. So that makes sense. 0:09:54.360 --> 0:09:57.040 So but even right there, in laying this out at 0:09:57.080 --> 0:10:00.400 the beginning, I mean, there's already three glaring issues. I mean, 0:10:00.440 --> 0:10:03.400 one he's already essentially being denied due process even in 0:10:03.400 --> 0:10:05.959 the indictment itself, because it doesn't lay out what crime 0:10:06.040 --> 0:10:09.040 he was pursuing in the pursuit of a felony, and 0:10:09.080 --> 0:10:12.240 then secondly you have the statute of limitations concerns, and 0:10:12.280 --> 0:10:15.240 then you know, thirdly, you have the timeline of it 0:10:15.280 --> 0:10:19.240 just being acidinine that somehow he was defrauding an election 0:10:19.320 --> 0:10:22.880 when the transactions are after the facts, you know right there. 0:10:22.960 --> 0:10:24.920 You know, I'm not an attorney, but you know, even 0:10:25.040 --> 0:10:28.120 just from a common sense perspective, you know, that's all 0:10:28.160 --> 0:10:31.880 a head scratcher. Also, you know, I would assume that 0:10:32.040 --> 0:10:34.599 the crime that he's allegedly concealing, or if this is 0:10:34.640 --> 0:10:37.120 having to do with the twenty sixteen election, those would 0:10:37.160 --> 0:10:40.480 be you know, federal aspects. So what jurisdiction does a 0:10:40.559 --> 0:10:44.559 local DA have to enforce federal law? Yeah, let me 0:10:44.600 --> 0:10:46.280 answer that, And I want to come back to the 0:10:46.320 --> 0:10:48.680 first point you made, because I think it's really important, 0:10:48.800 --> 0:10:52.600 which is the process problem. The reason. You know, Bragg 0:10:52.720 --> 0:10:55.800 is not an idiot. He's been a prosecutor for a 0:10:55.840 --> 0:10:58.240 long time. I think he's not a very good prosecutor, 0:10:58.280 --> 0:11:01.040 and he's been unethical way he brought this case. But 0:11:01.080 --> 0:11:05.160 he's not stupid. There's a reason why he doesn't want 0:11:05.200 --> 0:11:09.920 to say what the other crime is. He knows that 0:11:10.080 --> 0:11:13.280 is problematic, that he hasn't that he hasn't done that. 0:11:14.080 --> 0:11:19.000 And the reason, Lisa, is every other crime that he 0:11:19.080 --> 0:11:22.120 wants to cite is a problem for him. And the 0:11:22.200 --> 0:11:24.920 two main ones that he has sort of thrown out 0:11:24.960 --> 0:11:33.439 there without committing himself are federal campaign finance violations and 0:11:33.640 --> 0:11:38.679 state campaign finance violations. But he knows that on the 0:11:38.720 --> 0:11:43.439 federal side, he doesn't have jurisdiction to enforce federal law, 0:11:44.040 --> 0:11:46.400 and on the state side, he knows that the state 0:11:46.440 --> 0:11:50.720 election laws apply only to state. Why you know, state 0:11:50.760 --> 0:11:54.760 elections elections for the state office. And this is obviously 0:11:55.240 --> 0:11:58.320 an election for the presidency. That if imagine how chaotic 0:11:58.360 --> 0:12:01.560 it would be if every aid had their own election 0:12:01.640 --> 0:12:04.480 laws that applied to federal elections, so that if you 0:12:04.559 --> 0:12:07.480 stood for national office, you would have to comply, especially 0:12:07.520 --> 0:12:11.040 for the presidency, with the fifty different sets of laws. 0:12:11.080 --> 0:12:16.520 So clearly, when Congress comes in and has a set 0:12:16.559 --> 0:12:20.160 of election laws that apply to federal elections, that preempts 0:12:20.200 --> 0:12:22.720 the state laws. They can't apply their laws. And the 0:12:22.720 --> 0:12:25.439 state by their own terms to state laws don't apply 0:12:25.520 --> 0:12:29.080 to federal elections. So that's why Bragg doesn't want to 0:12:29.360 --> 0:12:33.400 go there. And what he's relying on as an ambiguity 0:12:33.480 --> 0:12:38.720 in the statute. What the the felony Falsification of Record 0:12:38.800 --> 0:12:43.720 statute says is it's a felony if by falsifying the 0:12:43.760 --> 0:12:48.720 records the person intended to commit or conceal and the 0:12:48.840 --> 0:12:55.080 term is another crime. So the statute doesn't say another 0:12:55.480 --> 0:12:58.320 New York state crime. But since we're dealing with the 0:12:58.400 --> 0:13:01.960 New York State penal Code, the presumption has to be 0:13:02.080 --> 0:13:04.720 that when it talks about another crime, it's talking about 0:13:04.720 --> 0:13:08.600 another New York crime. There's no reason to think it 0:13:08.720 --> 0:13:13.120 meant another federal crime, or that you can put federal 0:13:13.200 --> 0:13:17.120 in there just because the state legislature did or it 0:13:17.160 --> 0:13:22.480 did not, you know, cite to what authority the crime 0:13:22.520 --> 0:13:25.000 they were talking about was. You have to assume it 0:13:25.040 --> 0:13:27.840 was a New York crime, because otherwise, what's the limiting principle? 0:13:27.960 --> 0:13:30.760 You know, is a crime against the law of France 0:13:30.880 --> 0:13:33.480 good enough? You know, is a Shariah crime good enough? 0:13:34.800 --> 0:13:37.480 So obviously what the New York legislature was talking about 0:13:37.520 --> 0:13:39.760 was a New York crime, and Bragg knows that, and 0:13:39.840 --> 0:13:43.880 that's the reason he doesn't want to state a federal crime. Also, 0:13:45.120 --> 0:13:47.520 you know, he's got other problems with that. Number One, 0:13:48.200 --> 0:13:53.920 I don't think these expenditures, whatever you think of them, 0:13:54.080 --> 0:14:01.000 amount to a to in kind campaign contributions under federal law. 0:14:01.640 --> 0:14:06.079 So he not only has to show that these were 0:14:06.720 --> 0:14:10.600 if he had jurisdiction to enforce federal law, he would 0:14:10.600 --> 0:14:12.360 not have to. He would not only have to show 0:14:12.400 --> 0:14:18.000 that these were in kind federal campaign donations, he would 0:14:18.000 --> 0:14:21.240 also have to show that Trump knew that, and that 0:14:21.320 --> 0:14:24.560 he was intentionally trying to conceal that when the records 0:14:24.560 --> 0:14:29.160 were falsified. And there's no reason to believe. I frankly 0:14:29.200 --> 0:14:32.119 don't think there's any reason to believe these were campaign 0:14:32.960 --> 0:14:38.800 finance actions under federal law. The thought that Trump knew 0:14:38.840 --> 0:14:41.840 they were is far fetched. And I would just point 0:14:41.880 --> 0:14:45.000 out that in the last big campaign finance case that 0:14:45.240 --> 0:14:48.440 drew a lot of attention to John Edwards case, which 0:14:48.440 --> 0:14:52.720 involved a lot more money than this one, the Federal 0:14:52.760 --> 0:14:57.480 Election Commission and the Department of Justice, the two components 0:14:57.480 --> 0:15:00.400 of the federal government that actually do have jurisdic SHOA 0:15:00.440 --> 0:15:04.480 campaign finance violations disagreed on whether these were in kind 0:15:04.840 --> 0:15:08.520 payments or not. So the thought that Trump would know 0:15:08.640 --> 0:15:12.720 what a campaign finance violation was when the two regulatory 0:15:12.840 --> 0:15:15.080 arms of the federal government can't agree on it is 0:15:15.520 --> 0:15:18.960 very far fetched. And that puts aside, you know, a 0:15:19.000 --> 0:15:22.160 whole host of other problems such that, such as that 0:15:23.680 --> 0:15:27.200 most campaign finance violations are handled by paying a fine 0:15:27.720 --> 0:15:30.400 to the FEC. They don't criminalize them. People don't get 0:15:30.400 --> 0:15:33.560 indicted for them. The Obama campaign had a two point 0:15:33.600 --> 0:15:37.360 five I think it was million dollars violation in two 0:15:37.400 --> 0:15:39.880 thousand and eight. You'll be shocked to learn, Lisa, that 0:15:39.920 --> 0:15:44.120 the Obama Justice Department decided not to indict the Obama campaign. 0:15:44.280 --> 0:15:47.120 Now that's shocking, Yeah, it is shocking. And they let 0:15:47.120 --> 0:15:50.080 them get off with like a three hundred thousand dollars fine. 0:15:50.120 --> 0:15:54.360 So that you know, Hillary Clinton's campaign got fined by 0:15:54.400 --> 0:15:57.680 the FEC for mischaracterizing the way that they used to 0:15:57.720 --> 0:16:02.400 steal dossier, right, They they categorized it as legal fees 0:16:02.480 --> 0:16:06.360 and it was actually opposition research. So you know, they 0:16:06.360 --> 0:16:10.160 don't criminalize this ordinarily. They're just you know, they're criminalizing 0:16:10.160 --> 0:16:12.040 it for this guy, even though they don't actually have 0:16:12.200 --> 0:16:15.880 a crime. So I think you're right to point out 0:16:15.960 --> 0:16:19.800 that the big flaw in the indictment is the failure 0:16:20.960 --> 0:16:24.280 to state what the crime is, and that if I 0:16:24.280 --> 0:16:26.560 could that just it brings me back to your original 0:16:26.600 --> 0:16:31.720 point about due process, because there's three real problems with 0:16:31.760 --> 0:16:36.120 this that I don't see how Bragg can overcome. One 0:16:36.280 --> 0:16:39.400 is just the obvious. The point of an indictment is 0:16:39.440 --> 0:16:41.920 to put a person on notice of what the crime 0:16:42.080 --> 0:16:45.520 is so he can prepare his defense. If you don't 0:16:45.520 --> 0:16:48.040 tell the guy what he's accused of, he can't prepare 0:16:48.080 --> 0:16:50.920 a defense. So the indictment fails even as an indictment. 0:16:51.000 --> 0:16:53.160 It doesn't do the thing an indictment supposed to do. 0:16:53.960 --> 0:16:59.880 The second point of an indictment in American constitutional law 0:17:01.160 --> 0:17:03.480 is an indictment is supposed to be the way that 0:17:03.560 --> 0:17:06.600 you plead double jeopardy if you ever get charged again 0:17:06.640 --> 0:17:09.760 with the same crime. So, in other words, again the 0:17:09.800 --> 0:17:13.359 indictment has to stay say what you're accused of. So 0:17:13.400 --> 0:17:15.919 if another prosecutor down the road ever tried to do 0:17:15.960 --> 0:17:18.440 that again, your indictment is your evidence that they can't 0:17:18.440 --> 0:17:21.600 do that, because you've already been prosecuted for that crime. 0:17:21.840 --> 0:17:24.720 But again, if the indictment doesn't state the crime, then 0:17:24.720 --> 0:17:28.960 it can't perform that function as your double jeopardy defense either. 0:17:29.520 --> 0:17:33.239 And then I think the third thing, which should end 0:17:33.320 --> 0:17:35.639 up being a pretty big issue I would think in 0:17:35.680 --> 0:17:41.679 the pre trial motions is the prosecutor's function in the 0:17:41.800 --> 0:17:44.760 grand jury is to be the legal advisor for the 0:17:44.800 --> 0:17:49.359 grand jury when they make their finding when they vote 0:17:49.359 --> 0:17:52.480 for the indictment. And what technically, what the grand jury 0:17:52.520 --> 0:17:56.240 has to find when they indict is that every essential 0:17:56.280 --> 0:18:01.760 element of a crime is supported by probable cause. Every crime, 0:18:01.760 --> 0:18:04.439 whether it's a federal crime or a state crime, is 0:18:04.480 --> 0:18:09.119 broken down into components which the law regards as or 0:18:09.200 --> 0:18:13.280 calls essential elements. So for example, if I accused you 0:18:13.359 --> 0:18:18.360 of armed bank robbery, the essential elements would be that, yeah, 0:18:18.480 --> 0:18:20.960 you didn't do it. You're not guilty. See I didn't 0:18:20.960 --> 0:18:24.200 do it. We're already we're already advancing the ball here, 0:18:24.400 --> 0:18:28.719 just like the essential elements would be that you know 0:18:28.840 --> 0:18:32.320 you entered and robbed the bank, you were armed, and 0:18:32.359 --> 0:18:34.280 you intended to do it. In other words, it wasn't 0:18:34.280 --> 0:18:37.520 an accident or a mistake. So that's the kind of 0:18:37.520 --> 0:18:39.960 thing we're talking about when you say that somebody you have, 0:18:40.080 --> 0:18:42.480 the government has to prove guilt beyond a reasonable doubt 0:18:42.520 --> 0:18:45.440 at trial, or the grand jury has to find probable 0:18:45.480 --> 0:18:48.359 cause in order to indict. That's what we're talking about 0:18:48.440 --> 0:18:51.800 on those essential elements. And the reason this is important 0:18:52.000 --> 0:18:57.000 is Bragg. If the grand jury indictment is proper, Bragg 0:18:57.080 --> 0:19:00.920 has to have given the grand jury legal instructions on 0:19:00.960 --> 0:19:03.640 all of the elements they had to find in order 0:19:03.760 --> 0:19:06.399 to find that there was probable cause to indict Trump. 0:19:07.080 --> 0:19:10.119 So if he didn't put the crime the Trump was 0:19:10.160 --> 0:19:13.920 supposedly concealing in the grand jury, I think the chances 0:19:13.960 --> 0:19:16.920 are very high that he didn't instruct the grand jury 0:19:17.119 --> 0:19:20.000 on what that crime was. And I don't see how 0:19:20.040 --> 0:19:23.080 the grand jury could have properly indicted on that crime 0:19:23.720 --> 0:19:28.560 unless Bragg told them what the crime was that Trump 0:19:28.640 --> 0:19:31.120 was supposedly concealing. But it seems to me it would 0:19:31.160 --> 0:19:33.560 be very peculiar if he went through that with the 0:19:33.600 --> 0:19:36.119 grand jury, told the grand jury what the crime was, 0:19:36.160 --> 0:19:38.280 and then didn't put it in the indictment. That would 0:19:38.320 --> 0:19:43.240 be very strange. So I suspect that he probably violated 0:19:43.280 --> 0:19:46.000 the law in the grand jury which will be an 0:19:46.000 --> 0:19:48.200 issue in the pre trial motions. We're going to take 0:19:48.200 --> 0:19:54.760 a quick commercial break more with Andy McCarthy. The Feds 0:19:54.800 --> 0:19:59.240 decided not to pursue campaign finance charges regarding these payments. 0:19:59.400 --> 0:20:02.120 Do you know why and does that mean anything for 0:20:02.200 --> 0:20:05.280 this case that Trump's facing out of New York City? Yeah? So, 0:20:05.320 --> 0:20:08.040 I think that the way the Southern District of New York, 0:20:08.040 --> 0:20:11.760 which is my old office in the Federal Prosecutors in Manhattan, 0:20:12.160 --> 0:20:15.240 they were trying to build a case against Trump, and 0:20:15.400 --> 0:20:17.360 a lot has been made of the fact that they 0:20:17.440 --> 0:20:21.480 got Michael Cohen to plead guilty to two charges of 0:20:22.320 --> 0:20:26.800 campaign finance fraud in connection with these payments. One was 0:20:26.880 --> 0:20:30.119 for Stormy Daniels, the other was for the other woman involved, 0:20:31.040 --> 0:20:34.920 Karen McDougall, who Trump also is. Allegedly had a fling 0:20:34.960 --> 0:20:37.399 with like in two thousand and six two thousand and seven, 0:20:37.440 --> 0:20:40.480 and she was paid one hundred and fifty thousand dollars 0:20:40.520 --> 0:20:44.040 at least in value. But the reason they haven't charged 0:20:44.080 --> 0:20:49.040 that transaction is no money changed hands involving Trump and 0:20:49.119 --> 0:20:51.800 the Trump people. Rather, what happened in that case was 0:20:52.240 --> 0:20:54.920 she was paid one hundred and fifty thousand dollars by 0:20:55.000 --> 0:20:59.240 Trump's friends at the National Enquirer for the exclusive rights 0:20:59.280 --> 0:21:04.119 to her story, and Trump Cohen, and Cohen was supposed 0:21:04.160 --> 0:21:08.040 to reimburse the National Choir and then Trump would have 0:21:08.040 --> 0:21:12.439 reimbursed Cohen, except the National Inquirer decided it was the 0:21:12.480 --> 0:21:15.200 better part of valor that they just eat that expense 0:21:15.240 --> 0:21:19.760 and not take it from Cohen. So ultimately the only 0:21:20.240 --> 0:21:24.560 value that changed hands was between the National Choir and McDougall. 0:21:24.640 --> 0:21:27.160 So that's the reason Trump isn't charge with that. But 0:21:27.200 --> 0:21:34.159 the federal prosecutors charged Cohen with that, and as a result, 0:21:34.200 --> 0:21:37.639 you hear a lot of apologists for Bragg say that, 0:21:37.720 --> 0:21:41.000 of course he's a campaign finance violations as to Trump, 0:21:41.560 --> 0:21:45.800 because Cohen already played guilty to them. And what I 0:21:45.840 --> 0:21:49.440 think people need to understand about that is Cohen played 0:21:49.480 --> 0:21:53.160 guilty because the Southern District had him over a barrel. 0:21:54.720 --> 0:21:57.400 They had a big fraud case on Cohen. He had 0:21:57.440 --> 0:22:00.720 a bank fraud charge which in federal laws thirty year 0:22:00.800 --> 0:22:05.399 count involving a multimillion dollars line of credit, and he 0:22:05.480 --> 0:22:09.800 had five tax evasion charges that involved four million dollars 0:22:09.840 --> 0:22:13.200 of undeclared income. So he was looking at a lot 0:22:13.240 --> 0:22:15.600 of time in prison. He wasn't going to get anything 0:22:15.640 --> 0:22:18.080 close to thirty years, but he might have gotten seven 0:22:18.200 --> 0:22:21.800 or eight years in prison for this, And like most 0:22:21.960 --> 0:22:26.359 defendants who are in that position, his only way out 0:22:27.000 --> 0:22:30.760 was to cooperate with the government in making other cases, 0:22:31.119 --> 0:22:34.600 because then under the federal sentencing guidelines, the prosecutors can 0:22:34.640 --> 0:22:39.240 files what's a motion that's available under the guidelines, which 0:22:39.280 --> 0:22:42.280 gives the court the authority to sentence the guide to 0:22:42.400 --> 0:22:47.119 no time or much less time than the sentencing guidelines prescribe. 0:22:47.640 --> 0:22:52.840 So Cohn's problem is that all of these fraud counts 0:22:52.880 --> 0:22:55.600 that he was involved and don't implicate Trump at all. 0:22:55.600 --> 0:22:58.760 This was his own business that he was involved in 0:22:58.760 --> 0:23:02.200 in New York, and the Southern District wanted to build 0:23:02.200 --> 0:23:05.320 a case against Trump. The only thing they had on 0:23:05.400 --> 0:23:10.719 Trump that involved Cohen were these two hush money arrangements, 0:23:11.160 --> 0:23:14.720 so they got Cohen to plead guilty to those two counts. 0:23:14.760 --> 0:23:17.240 I think the reason Cohen agreed to do it is 0:23:18.080 --> 0:23:22.680 the fraud counts against him were so severe that the 0:23:22.720 --> 0:23:27.439 campaign finance counts, which were comparatively from minor amounts of money, 0:23:27.840 --> 0:23:31.440 did not add anything to his sentencing. Exposure. It didn't 0:23:31.520 --> 0:23:34.600 change what his sentence would have been at all, So 0:23:34.640 --> 0:23:38.760 all it was was adding two more counts onto a 0:23:38.840 --> 0:23:41.280 laundry list of things he was already going to plead 0:23:41.280 --> 0:23:44.760 guilty to. It didn't add any time, So from his perspective, 0:23:45.160 --> 0:23:48.280 all it did was make him a more attractive witness 0:23:48.760 --> 0:23:52.200 because he was willing to say that Trump was implicated 0:23:52.240 --> 0:23:57.520 in these campaign finance violations. And from the Southern District standpoint, 0:23:57.560 --> 0:23:59.919 it was a no lose proposition because they're trying to 0:24:00.000 --> 0:24:03.320 build a case against Trump. When Cohane pleaded guilty, that 0:24:03.400 --> 0:24:05.960 meant the case would never be tried, so the campaign 0:24:06.040 --> 0:24:10.000 finance violations would never be challenged. And in pleading guilty, 0:24:10.040 --> 0:24:12.320 you waive your right to appeal, so the Southern District 0:24:12.400 --> 0:24:14.639 was never going to have to defend those charges on appeal, 0:24:15.080 --> 0:24:18.480 So everybody wins right. And what they were trying to 0:24:18.480 --> 0:24:21.520 do was build a case on Trump. You asked me, 0:24:21.600 --> 0:24:23.840 why didn't they bring this case after all, if they 0:24:23.880 --> 0:24:25.960 got Cohen to plead guilty to it wind up bringing 0:24:25.920 --> 0:24:28.720 it against Trump. And the answer is because in the end, 0:24:28.760 --> 0:24:32.919 they're not really inkind donations. And I think the Southern 0:24:32.960 --> 0:24:37.000 District and the Justice Department understand understood that if somebody 0:24:37.040 --> 0:24:41.320 actually challenged these in court, as you know, are they 0:24:41.480 --> 0:24:44.760 as a matter of law in kind campaign donations, they 0:24:44.760 --> 0:24:47.200 would have lost and it would have been humiliating. So 0:24:47.240 --> 0:24:49.080 they decided if they were going to make a case 0:24:49.880 --> 0:24:51.720 on a man who was then the President of the 0:24:51.800 --> 0:24:55.919 United States. I think everybody should agree with this. If 0:24:55.960 --> 0:24:58.200 you're going to bring a case like that, it should 0:24:58.200 --> 0:25:01.399 be a very obvious, very serious, this crime that's backed 0:25:01.400 --> 0:25:03.960