Speaker 1: We've been covering the indictment of Donald Trump in the
Speaker 1: past couple of episodes. Today we're going to dig in,
Speaker 1: just get into great detail about the thirty four accounts
Speaker 1: he's facing, the case that Alvin Bragg is trying to
Speaker 1: make against him, and if he will be successful. We'll
Speaker 1: also get into what options Donald Trump has in front
Speaker 1: of him before his December hearing that he's facing. We're
Speaker 1: going to get into all of it with Annie McCarthy.
Speaker 1: He's a Fox News contributor a contributing editor at The
Speaker 1: National Review. He's also a former Chief Assistant United States
Speaker 1: Attorney and the Southern District of New York, so he
Speaker 1: understands the New York court system. So stay tuned for
Speaker 1: this episode with Annie McCarthy. So, Annie McCarthy, I'm so
Speaker 1: glad to have you on the show. I've just obviously
Speaker 1: I'm familiar with your work work colleagues at Fox, but
Speaker 1: just in watching you on TV and reading everything you've written,
Speaker 1: you just do such a good job just thoroughly breaking
Speaker 1: this down. I'm so thankful for you to take in
Speaker 1: the time to join the show. Well, thanks so much, Lisa,
Speaker 1: It's great to be here, you know, so Andy. Obviously
Speaker 1: a wild time in American history. This is clearly unprecedented.
Speaker 1: So thirty four felon accounts. Can you take us through
Speaker 1: in detail what exactly Alvin Bragg is accusing Donald Trump
Speaker 1: of doing. Well, the basic crime in terms of what
Speaker 1: the legal counts are, is very different, Lisa, from the story.
Speaker 1: So why don't Why don't I start with what the
Speaker 1: crimes are and then I can get to why the
Speaker 1: story is incoherent? That'd be great. So the crimes are
Speaker 1: what in New York is generally the misdemeanor of falsifying
Speaker 1: business records and to commit that crime, which is you
Speaker 1: would get less than a year from in jail, even
Speaker 1: on the books. But in New York, Alvin Bragg basically
Speaker 1: doesn't prosecute anything. So this is the kind of case
Speaker 1: that wouldn't need to be brought against somebody normally. But
Speaker 1: what you would have to prove is that somebody made
Speaker 1: false entries in their business records and they It's not
Speaker 1: enough to show that the entries of false. You have
Speaker 1: to show that the person did it with fraudulent intent,
Speaker 1: which usually means that you're trying to swindle someone, right,
Speaker 1: You're trying to take money or property. The state argues
Speaker 1: for a kind of a more broad based definition than that,
Speaker 1: but for now, that's that's pretty much what falsifying business
Speaker 1: records means. Now in New York, falsifying business records only
Speaker 1: has a two year statute of limitations. And the course
Speaker 1: of behavior that we're talking about happened in twenty seventeen,
Speaker 1: So ordinarily, if that's what you charge, he'd be out
Speaker 1: of luck now because that would have been time barred
Speaker 1: by probably by twenty nineteen, no later than twenty twenty.
Speaker 1: But what Bragg is trying to do, and the reason
Speaker 1: he had to go to a grand jury is juice
Speaker 1: up into a felony from a misdemeanor. The reason I
Speaker 1: say that's why he went to the grand jury. In
Speaker 1: the United States, the Fifth Amendment guarantees you the right
Speaker 1: to be indicted by a grand jury, which means the
Speaker 1: community has to make sure that the government has enough
Speaker 1: evidence before the case can proceed to trial. So what
Speaker 1: a grand jury is supposed to do is find probable
Speaker 1: cause that the government has a case, and then you
Speaker 1: move on to the indictment stage. But under the Fifth Amendment,
Speaker 1: you only get an indictment right for a felony. For
Speaker 1: a misdemeanor, the prosecutor can charge himself by what's known
Speaker 1: as an information. So here the reason Bragg was in
Speaker 1: the grand jury as he wanted this to be a
Speaker 1: felony case. And in New York, you can inflate the
Speaker 1: falsification of records from a misdemeanor into a felony if
Speaker 1: you can show that by committing the misdemeanor, committing the
Speaker 1: falsification of records, the defendant was trying to conceal another crime.
Speaker 1: So what he alleges is that Trump was trying to
Speaker 1: conceal another crime by making full centuries in the Trump
Speaker 1: organization records, or at least causing false entries to be made.
Speaker 1: So that's the thirty four counts are all basically that charge.
Speaker 1: And the way he gets to thirty four is there
Speaker 1: was a series of payments that Trump made to Michael Cohen.
Speaker 1: Michael Cohen used to be Trump's lawyer. He's the one
Speaker 1: who laid out the money for this hush money agreement,
Speaker 1: which is known as a non disclosure agreement. He paid
Speaker 1: one hundred and thirty thousand dollars to Stormy Daniels, the
Speaker 1: porn star whose real name is Stephanie Clifford. And then
Speaker 1: the arrange with Trump was to repay Cohen over the
Speaker 1: months of twenty seventeen, so basically he got a monthly
Speaker 1: check and to bring that about. What would happen is
Speaker 1: Cohen would provide an invoice. Either Trump or the Trump
Speaker 1: organization would write a check for him, and then an
Speaker 1: entry went into the books. So even though this whole
Speaker 1: thing is really one payback of a loan, it was
Speaker 1: split into installments monthly. So Bragg basically broke it down
Speaker 1: into those installments, but not content with that. He broke
Speaker 1: down each installment to three separate acts, the invoice, the
Speaker 1: writing of the check, and the book entry. So that's
Speaker 1: how he gets up to thirty four. And we can
Speaker 1: talk about that, but that's kind of a practice that
Speaker 1: the Justice Department in federal cases tells prosecutors they shouldn't do.
Speaker 1: I think when I tried the blind shake in nineties
Speaker 1: for you know, terrorism and mass murder conspiracies and all
Speaker 1: that stuff, I think I brought five counts. So this
Speaker 1: is thirty four for the heavy duty crime undoubtedly of
Speaker 1: falsifying business records. So anyway, those are the those are
Speaker 1: the legal that's the legal counts, and I think it's
Speaker 1: important Lisa to say counts, because those are allegations. I
Speaker 1: have a hard time calling them crimes because I think
Speaker 1: one of the big flaws in this indictment is that
Speaker 1: he hasn't actually stayed at a crime, because that the
Speaker 1: felony that we just discussed. You're supposed to show that
Speaker 1: the person falsified the records to conceal another crime. Bragg
Speaker 1: does not state in the indictment what the other crime
Speaker 1: is that Trump supposedly was concealing. So right off the bat,
Speaker 1: I think he's got a problem in not stating a crime,
Speaker 1: because that's really the main function of a indictment is
Speaker 1: to tell the defendant what he's accused of doing so
Speaker 1: that he can prepare his defense. So I think, just
Speaker 1: as a legal, technical, clinical matter, the indictment fails in
Speaker 1: what the basic purpose of an indictment is. But let
Speaker 1: me just say quickly the reason I say the story
Speaker 1: is incoherent is Bragg's rationale for charging this case when
Speaker 1: it's perfectly obvious that no one other than Donald Trump
Speaker 1: would ever have been charged with this is that Bragg's
Speaker 1: theory is Trump stole the twenty sixteen election by fraud,
Speaker 1: namely by not disclosing these arrangements, these hush money deals,
Speaker 1: and there are at least he lays out three of
Speaker 1: them in the Statement of Facts that he filed along
Speaker 1: with the indictment. But the thing about it is non
Speaker 1: disclosure agreements are legal. In fact, there are a staple
Speaker 1: in the civil justice system of how litigation gets closed
Speaker 1: out and people make agreements. We frequently hear that, you know,
Speaker 1: a lawsuit was dropped and the party settled and it
Speaker 1: was an exchange of money and everybody agreed not to
Speaker 1: talk about it anymore. That happens all the time. So
Speaker 1: there's nothing illegal about non disclosure agreements. So, according to
Speaker 1: brag Trump stole the twenty sixteen election by fraud. And
Speaker 1: yet when you look at the indictment, the charges run
Speaker 1: from February fourteenth, twenty seventeen, to December fifth, twenty seventeen,
Speaker 1: so they start basically four months after the twenty sixteen
Speaker 1: election was already over. It's inconceivable that you could commit
Speaker 1: a fraud in twenty sixteen based on acts that you
Speaker 1: don't carry out until months after the twenty sixteen event
Speaker 1: is over. So the think it doesn't make any sense factual.
Speaker 1: So why do you think he went with the twenty
Speaker 1: seventeen date? What I had heard is I think the
Speaker 1: transaction was in I believe October of twenty sixteen. So
Speaker 1: why do you think he went with twenty seventeen? Do
Speaker 1: you know the basis of that? Yeah, the same reason
Speaker 1: that he only charged it gets when it got down
Speaker 1: to counts. He only charged the Stormy Daniels nondisclosure agreement,
Speaker 1: not the transactions attendant to the other two hush money
Speaker 1: arrangements that they talk about in the statement of facts.
Speaker 1: The reason is he needs Trump to be an active participant.
Speaker 1: What happened in October of twenty sixteen is that Michael
Speaker 1: Cohen paid the money to Stormy Daniels. What happened from
Speaker 1: February to December of twenty seventeen is that Trump paid
Speaker 1: Michael Cohen. So in order to get the counts against Trump,
Speaker 1: he has to go to Trump's personal activity. So that's
Speaker 1: the stuff that happened in twenty seventeen. So that makes sense.
Speaker 1: So but even right there, in laying this out at
Speaker 1: the beginning, I mean, there's already three glaring issues. I mean,
Speaker 1: one he's already essentially being denied due process even in
Speaker 1: the indictment itself, because it doesn't lay out what crime
Speaker 1: he was pursuing in the pursuit of a felony, and
Speaker 1: then secondly you have the statute of limitations concerns, and
Speaker 1: then you know, thirdly, you have the timeline of it
Speaker 1: just being acidinine that somehow he was defrauding an election
Speaker 1: when the transactions are after the facts, you know right there.
Speaker 1: You know, I'm not an attorney, but you know, even
Speaker 1: just from a common sense perspective, you know, that's all
Speaker 1: a head scratcher. Also, you know, I would assume that
Speaker 1: the crime that he's allegedly concealing, or if this is
Speaker 1: having to do with the twenty sixteen election, those would
Speaker 1: be you know, federal aspects. So what jurisdiction does a
Speaker 1: local DA have to enforce federal law? Yeah, let me
Speaker 1: answer that, And I want to come back to the
Speaker 1: first point you made, because I think it's really important,
Speaker 1: which is the process problem. The reason. You know, Bragg
Speaker 1: is not an idiot. He's been a prosecutor for a
Speaker 1: long time. I think he's not a very good prosecutor,
Speaker 1: and he's been unethical way he brought this case. But
Speaker 1: he's not stupid. There's a reason why he doesn't want
Speaker 1: to say what the other crime is. He knows that
Speaker 1: is problematic, that he hasn't that he hasn't done that.
Speaker 1: And the reason, Lisa, is every other crime that he
Speaker 1: wants to cite is a problem for him. And the
Speaker 1: two main ones that he has sort of thrown out
Speaker 1: there without committing himself are federal campaign finance violations and
Speaker 1: state campaign finance violations. But he knows that on the
Speaker 1: federal side, he doesn't have jurisdiction to enforce federal law,
Speaker 1: and on the state side, he knows that the state
Speaker 1: election laws apply only to state. Why you know, state
Speaker 1: elections elections for the state office. And this is obviously
Speaker 1: an election for the presidency. That if imagine how chaotic
Speaker 1: it would be if every aid had their own election
Speaker 1: laws that applied to federal elections, so that if you
Speaker 1: stood for national office, you would have to comply, especially
Speaker 1: for the presidency, with the fifty different sets of laws.
Speaker 1: So clearly, when Congress comes in and has a set
Speaker 1: of election laws that apply to federal elections, that preempts
Speaker 1: the state laws. They can't apply their laws. And the
Speaker 1: state by their own terms to state laws don't apply
Speaker 1: to federal elections. So that's why Bragg doesn't want to
Speaker 1: go there. And what he's relying on as an ambiguity
Speaker 1: in the statute. What the the felony Falsification of Record
Speaker 1: statute says is it's a felony if by falsifying the
Speaker 1: records the person intended to commit or conceal and the
Speaker 1: term is another crime. So the statute doesn't say another
Speaker 1: New York state crime. But since we're dealing with the
Speaker 1: New York State penal Code, the presumption has to be
Speaker 1: that when it talks about another crime, it's talking about
Speaker 1: another New York crime. There's no reason to think it
Speaker 1: meant another federal crime, or that you can put federal
Speaker 1: in there just because the state legislature did or it
Speaker 1: did not, you know, cite to what authority the crime
Speaker 1: they were talking about was. You have to assume it
Speaker 1: was a New York crime, because otherwise, what's the limiting principle?
Speaker 1: You know, is a crime against the law of France
Speaker 1: good enough? You know, is a Shariah crime good enough?
Speaker 1: So obviously what the New York legislature was talking about
Speaker 1: was a New York crime, and Bragg knows that, and
Speaker 1: that's the reason he doesn't want to state a federal crime. Also,
Speaker 1: you know, he's got other problems with that. Number One,
Speaker 1: I don't think these expenditures, whatever you think of them,
Speaker 1: amount to a to in kind campaign contributions under federal law.
Speaker 1: So he not only has to show that these were
Speaker 1: if he had jurisdiction to enforce federal law, he would
Speaker 1: not have to. He would not only have to show
Speaker 1: that these were in kind federal campaign donations, he would
Speaker 1: also have to show that Trump knew that, and that
Speaker 1: he was intentionally trying to conceal that when the records
Speaker 1: were falsified. And there's no reason to believe. I frankly
Speaker 1: don't think there's any reason to believe these were campaign
Speaker 1: finance actions under federal law. The thought that Trump knew
Speaker 1: they were is far fetched. And I would just point
Speaker 1: out that in the last big campaign finance case that
Speaker 1: drew a lot of attention to John Edwards case, which
Speaker 1: involved a lot more money than this one, the Federal
Speaker 1: Election Commission and the Department of Justice, the two components
Speaker 1: of the federal government that actually do have jurisdic SHOA
Speaker 1: campaign finance violations disagreed on whether these were in kind
Speaker 1: payments or not. So the thought that Trump would know
Speaker 1: what a campaign finance violation was when the two regulatory
Speaker 1: arms of the federal government can't agree on it is
Speaker 1: very far fetched. And that puts aside, you know, a
Speaker 1: whole host of other problems such that, such as that
Speaker 1: most campaign finance violations are handled by paying a fine
Speaker 1: to the FEC. They don't criminalize them. People don't get
Speaker 1: indicted for them. The Obama campaign had a two point
Speaker 1: five I think it was million dollars violation in two
Speaker 1: thousand and eight. You'll be shocked to learn, Lisa, that
Speaker 1: the Obama Justice Department decided not to indict the Obama campaign.
Speaker 1: Now that's shocking, Yeah, it is shocking. And they let
Speaker 1: them get off with like a three hundred thousand dollars fine.
Speaker 1: So that you know, Hillary Clinton's campaign got fined by
Speaker 1: the FEC for mischaracterizing the way that they used to
Speaker 1: steal dossier, right, They they categorized it as legal fees
Speaker 1: and it was actually opposition research. So you know, they
Speaker 1: don't criminalize this ordinarily. They're just you know, they're criminalizing
Speaker 1: it for this guy, even though they don't actually have
Speaker 1: a crime. So I think you're right to point out
Speaker 1: that the big flaw in the indictment is the failure
Speaker 1: to state what the crime is, and that if I
Speaker 1: could that just it brings me back to your original
Speaker 1: point about due process, because there's three real problems with
Speaker 1: this that I don't see how Bragg can overcome. One
Speaker 1: is just the obvious. The point of an indictment is
Speaker 1: to put a person on notice of what the crime
Speaker 1: is so he can prepare his defense. If you don't
Speaker 1: tell the guy what he's accused of, he can't prepare
Speaker 1: a defense. So the indictment fails even as an indictment.
Speaker 1: It doesn't do the thing an indictment supposed to do.
Speaker 1: The second point of an indictment in American constitutional law
Speaker 1: is an indictment is supposed to be the way that
Speaker 1: you plead double jeopardy if you ever get charged again
Speaker 1: with the same crime. So, in other words, again the
Speaker 1: indictment has to stay say what you're accused of. So
Speaker 1: if another prosecutor down the road ever tried to do
Speaker 1: that again, your indictment is your evidence that they can't
Speaker 1: do that, because you've already been prosecuted for that crime.
Speaker 1: But again, if the indictment doesn't state the crime, then
Speaker 1: it can't perform that function as your double jeopardy defense either.
Speaker 1: And then I think the third thing, which should end
Speaker 1: up being a pretty big issue I would think in
Speaker 1: the pre trial motions is the prosecutor's function in the
Speaker 1: grand jury is to be the legal advisor for the
Speaker 1: grand jury when they make their finding when they vote
Speaker 1: for the indictment. And what technically, what the grand jury
Speaker 1: has to find when they indict is that every essential
Speaker 1: element of a crime is supported by probable cause. Every crime,
Speaker 1: whether it's a federal crime or a state crime, is
Speaker 1: broken down into components which the law regards as or
Speaker 1: calls essential elements. So for example, if I accused you
Speaker 1: of armed bank robbery, the essential elements would be that, yeah,
Speaker 1: you didn't do it. You're not guilty. See I didn't
Speaker 1: do it. We're already we're already advancing the ball here,
Speaker 1: just like the essential elements would be that you know
Speaker 1: you entered and robbed the bank, you were armed, and
Speaker 1: you intended to do it. In other words, it wasn't
Speaker 1: an accident or a mistake. So that's the kind of
Speaker 1: thing we're talking about when you say that somebody you have,
Speaker 1: the government has to prove guilt beyond a reasonable doubt
Speaker 1: at trial, or the grand jury has to find probable
Speaker 1: cause in order to indict. That's what we're talking about
Speaker 1: on those essential elements. And the reason this is important
Speaker 1: is Bragg. If the grand jury indictment is proper, Bragg
Speaker 1: has to have given the grand jury legal instructions on
Speaker 1: all of the elements they had to find in order
Speaker 1: to find that there was probable cause to indict Trump.
Speaker 1: So if he didn't put the crime the Trump was
Speaker 1: supposedly concealing in the grand jury, I think the chances
Speaker 1: are very high that he didn't instruct the grand jury
Speaker 1: on what that crime was. And I don't see how
Speaker 1: the grand jury could have properly indicted on that crime
Speaker 1: unless Bragg told them what the crime was that Trump
Speaker 1: was supposedly concealing. But it seems to me it would
Speaker 1: be very peculiar if he went through that with the
Speaker 1: grand jury, told the grand jury what the crime was,
Speaker 1: and then didn't put it in the indictment. That would
Speaker 1: be very strange. So I suspect that he probably violated
Speaker 1: the law in the grand jury which will be an
Speaker 1: issue in the pre trial motions. We're going to take
Speaker 1: a quick commercial break more with Andy McCarthy. The Feds
Speaker 1: decided not to pursue campaign finance charges regarding these payments.
Speaker 1: Do you know why and does that mean anything for
Speaker 1: this case that Trump's facing out of New York City? Yeah? So,
Speaker 1: I think that the way the Southern District of New York,
Speaker 1: which is my old office in the Federal Prosecutors in Manhattan,
Speaker 1: they were trying to build a case against Trump, and
Speaker 1: a lot has been made of the fact that they
Speaker 1: got Michael Cohen to plead guilty to two charges of
Speaker 1: campaign finance fraud in connection with these payments. One was
Speaker 1: for Stormy Daniels, the other was for the other woman involved,
Speaker 1: Karen McDougall, who Trump also is. Allegedly had a fling
Speaker 1: with like in two thousand and six two thousand and seven,
Speaker 1: and she was paid one hundred and fifty thousand dollars
Speaker 1: at least in value. But the reason they haven't charged
Speaker 1: that transaction is no money changed hands involving Trump and
Speaker 1: the Trump people. Rather, what happened in that case was
Speaker 1: she was paid one hundred and fifty thousand dollars by
Speaker 1: Trump's friends at the National Enquirer for the exclusive rights
Speaker 1: to her story, and Trump Cohen, and Cohen was supposed
Speaker 1: to reimburse the National Choir and then Trump would have
Speaker 1: reimbursed Cohen, except the National Inquirer decided it was the
Speaker 1: better part of valor that they just eat that expense
Speaker 1: and not take it from Cohen. So ultimately the only
Speaker 1: value that changed hands was between the National Choir and McDougall.
Speaker 1: So that's the reason Trump isn't charge with that. But
Speaker 1: the federal prosecutors charged Cohen with that, and as a result,
Speaker 1: you hear a lot of apologists for Bragg say that,
Speaker 1: of course he's a campaign finance violations as to Trump,
Speaker 1: because Cohen already played guilty to them. And what I
Speaker 1: think people need to understand about that is Cohen played
Speaker 1: guilty because the Southern District had him over a barrel.
Speaker 1: They had a big fraud case on Cohen. He had
Speaker 1: a bank fraud charge which in federal laws thirty year
Speaker 1: count involving a multimillion dollars line of credit, and he
Speaker 1: had five tax evasion charges that involved four million dollars
Speaker 1: of undeclared income. So he was looking at a lot
Speaker 1: of time in prison. He wasn't going to get anything
Speaker 1: close to thirty years, but he might have gotten seven
Speaker 1: or eight years in prison for this, And like most
Speaker 1: defendants who are in that position, his only way out
Speaker 1: was to cooperate with the government in making other cases,
Speaker 1: because then under the federal sentencing guidelines, the prosecutors can
Speaker 1: files what's a motion that's available under the guidelines, which
Speaker 1: gives the court the authority to sentence the guide to
Speaker 1: no time or much less time than the sentencing guidelines prescribe.
Speaker 1: So Cohn's problem is that all of these fraud counts
Speaker 1: that he was involved and don't implicate Trump at all.
Speaker 1: This was his own business that he was involved in
Speaker 1: in New York, and the Southern District wanted to build
Speaker 1: a case against Trump. The only thing they had on
Speaker 1: Trump that involved Cohen were these two hush money arrangements,
Speaker 1: so they got Cohen to plead guilty to those two counts.
Speaker 1: I think the reason Cohen agreed to do it is
Speaker 1: the fraud counts against him were so severe that the
Speaker 1: campaign finance counts, which were comparatively from minor amounts of money,
Speaker 1: did not add anything to his sentencing. Exposure. It didn't
Speaker 1: change what his sentence would have been at all, So
Speaker 1: all it was was adding two more counts onto a
Speaker 1: laundry list of things he was already going to plead
Speaker 1: guilty to. It didn't add any time, So from his perspective,
Speaker 1: all it did was make him a more attractive witness
Speaker 1: because he was willing to say that Trump was implicated
Speaker 1: in these campaign finance violations. And from the Southern District standpoint,
Speaker 1: it was a no lose proposition because they're trying to
Speaker 1: build a case against Trump. When Cohane pleaded guilty, that
Speaker 1: meant the case would never be tried, so the campaign
Speaker 1: finance violations would never be challenged. And in pleading guilty,
Speaker 1: you waive your right to appeal, so the Southern District
Speaker 1: was never going to have to defend those charges on appeal,
Speaker 1: So everybody wins right. And what they were trying to
Speaker 1: do was build a case on Trump. You asked me,
Speaker 1: why didn't they bring this case after all, if they
Speaker 1: got Cohen to plead guilty to it wind up bringing
Speaker 1: it against Trump. And the answer is because in the end,
Speaker 1: they're not really inkind donations. And I think the Southern
Speaker 1: District and the Justice Department understand understood that if somebody
Speaker 1: actually challenged these in court, as you know, are they
Speaker 1: as a matter of law in kind campaign donations, they
Speaker 1: would have lost and it would have been humiliating. So
Speaker 1: they decided if they were going to make a case
Speaker 1: on a man who was then the President of the
Speaker 1: United States. I think everybody should agree with this. If
Speaker 1: you're going to bring a case like that, it should
Speaker 1: be a very obvious, very serious, this crime that's backed
Speaker 1: by very convincing evidence, and they knew they didn't have that,
Speaker 1: so they didn't bring the case. And a lot of
Speaker 1: people when I point that out, a lot of people say, well,
Speaker 1: that was the Trump Justice Department. And what I would
Speaker 1: say about that is, you know, number one, the Southern
Speaker 1: District of New York is famously renegade when it comes
Speaker 1: to political corruption cases. They've done a lot of them
Speaker 1: in defiance of what the Justice Department wanted them to do.
Speaker 1: But even if that weren't the case. I don't know
Speaker 1: if this is late breaking news for people or not,
Speaker 1: but as of January twentieth, twenty seventeen, twenty twenty one,
Speaker 1: the Justice Department's been under new management. You know, the
Speaker 1: Biden administration. You've noticed, so we noticed, Yeah, I know
Speaker 1: it haven't we ever, but you know, I mean they've
Speaker 1: had twenty seven months to bring a case if it
Speaker 1: was there, and we also know, Lisa, Look, they're scorching
Speaker 1: the earth. To me, it's not like they don't want
Speaker 1: to make a case against Trump, right, They're going on them.
Speaker 1: They're going after him on January sixth. They're going after
Speaker 1: him and I think probably going to get him on
Speaker 1: the documents case, which they've they're now sort of pitching
Speaker 1: as a grand jury obstruction case rather than documents retention.
Speaker 1: But we know they're trying very hard to make a
Speaker 1: case against Trump. They didn't bring this one because legally
Speaker 1: it just doesn't add up. Also, the documents, though, seems
Speaker 1: rather unfair because you know, my understanding is a president
Speaker 1: ultimately has the authority and so it's sort of gray
Speaker 1: area in terms of, you know, if he declassified or not.
Speaker 1: And then it seems like every president has some sort
Speaker 1: of back and forth in terms of turning over records
Speaker 1: or is probably you know, guilty of this. Whereas you know,
Speaker 1: Joe Biden in the Senate to take stake documents out
Speaker 1: of a skiff is like you're like malice, like actual
Speaker 1: malice to you know, to have done that as opposed
Speaker 1: to you know, just accidentally bringing stuff with you. I'm
Speaker 1: not the most organized person, so probably best for me
Speaker 1: not to be a president because I would totally do
Speaker 1: that by accidents. So yeah, but I've never had classified auguments.
Speaker 1: For the record, I also did not rob the bank.
Speaker 1: So just to be clear in case anyone's listening, you know,
Speaker 1: so covering committed any exactly, you just gotta laid out there,
Speaker 1: you know, better be safe than than sorry here in
Speaker 1: this environment, um, you know, and so obviously you know
Speaker 1: they're laying out the thirty four accounts to try to
Speaker 1: stack the deck in the event that it makes it
Speaker 1: easier to try to lay on one. So his next
Speaker 1: in person hearing is in December? What options does Donald
Speaker 1: Trump have in front of him before that date, Kenn,
Speaker 1: he try to get this thrown out? What you know,
Speaker 1: what is the appeals process? Like, what's next for team
Speaker 1: Trump in this? You think that's a great question. I
Speaker 1: think that I wouldn't fault them for not immediately moving
Speaker 1: to dismiss the indictment, because unlike the way it worked
Speaker 1: when I was a federal prosecutor back in the Stone Age.
Speaker 1: They didn't get the indictment the lawyers until they were
Speaker 1: in court on was a Tuesday afternoon, so you know,
Speaker 1: it wasn't until like two thirty Eastern time Tuesday afternoon
Speaker 1: that they even saw this thing. So I don't think
Speaker 1: that they should be faulted for not having done anything
Speaker 1: there and then. But now that they've had a chance
Speaker 1: to digest it, I would go into court. They have
Speaker 1: a motion schedule, I think for the moment that you know,
Speaker 1: that court is very congested in cases move very slowly,
Speaker 1: So what the judge did the other day was set
Speaker 1: a motion schedule. The government's supposed to start making discovery
Speaker 1: right away. Trump has until August to make pre trial motions,
Speaker 1: including motions to dismiss the indictment. The state has about
Speaker 1: I think six or eight weeks to respond to that,
Speaker 1: and then the next time they're all supposed to be
Speaker 1: in court again is December, which just seems eight months
Speaker 1: from now. It just seems ridiculous. But if I were
Speaker 1: Trump's lawyers, I would try to get under the judge's toes. Now,
Speaker 1: I mean I would, now that you've had a chance
Speaker 1: to read this thing. I would go in and simply argue,
Speaker 1: you know, look, the indictment fails to state a crime,
Speaker 1: so we shouldn't even be here because they have to
Speaker 1: state a crime before you can start a criminal proceeding.
Speaker 1: And I would also be arguing that he seems to
Speaker 1: be trying to say that he can enforce federal campaign
Speaker 1: finance law, and my hook to try to get the
Speaker 1: judge to move on this and go quickly would be
Speaker 1: a twofold argument. One would be, this is a state proceeding,
Speaker 1: but it's got enormous consequence for national electoral politics, and
Speaker 1: it shouldn't be allowed to hang over the country if
Speaker 1: there isn't a case here. You know, It's one thing
Speaker 1: if Bragg stated a serious crime and it looked like
Speaker 1: he could prove it, then you would just have to
Speaker 1: go through with that. But here it doesn't look like
Speaker 1: he has a crime at all, much less much evidence.
Speaker 1: So I would try to push them on that end.
Speaker 1: And then the other thing I'd say to them, Lisa,
Speaker 1: is because he's purporting to be able to enforce federal
Speaker 1: campaign finance law, although at least we think he is,
Speaker 1: and the statutes of New York law do not allow
Speaker 1: him to do that. I would signal to the judge
Speaker 1: in New York that if they don't get satisfaction here,
Speaker 1: they're going to go into federal court and say that
Speaker 1: make an argument that the Manhattan District Attorney, who doesn't
Speaker 1: have jurisdiction to enforce these criminal laws, is trying to
Speaker 1: do that. And I think the reason you do that is,
Speaker 1: you know, you try to nudge this judge into taking action.
Speaker 1: You know this thing he's got right now, he's got
Speaker 1: it on the slow train, and I think you want
Speaker 1: him to move on it. And judges, what tends to
Speaker 1: get judges attention and get them to move faster is
Speaker 1: the prospect of their work being checked by a different court.
Speaker 1: So that's what I do. We're going to take a
Speaker 1: quick commercial break, and then Andy's going to continue breaking
Speaker 1: down the indictment against Donald Trump. This a judge specifically
Speaker 1: has donated two Democrats in twenty including that of Joe Biden.
Speaker 1: Now they're not big donations, but their donations nonetheless, does
Speaker 1: that increase his probability if this judge denies him the
Speaker 1: ability to try to throw this out, to take it
Speaker 1: beyond that and saying, not only have I faced you know,
Speaker 1: a corruption from the Manhattan DA, but also a bias
Speaker 1: judge who, you know, one could argue maybe should even
Speaker 1: recuse himself in this instance. He's already demonstrated a bias
Speaker 1: against Trump in the donations that he's made. Yeah, at Lisa,
Speaker 1: I think that the one motion that Joe Takapina, who
Speaker 1: is one of Trump's lawyers, has talked about publicly already
Speaker 1: is selective prosecution. And I think that they are going
Speaker 1: to take the background facts about the judge that you
Speaker 1: just laid out in conjunction with the fact that Bragg
Speaker 1: brings this case against Trump which he wouldn't bring against
Speaker 1: anyone else. As I've been saying all along, I think
Speaker 1: we call Bragg the district attorney because that's his title,
Speaker 1: but we really shouldn't look at him as a law
Speaker 1: enforcement official. We should look at him as a progressive
Speaker 1: Democrat who's been elected to office on a campaign to
Speaker 1: go after this one guy. I mean, basically, Bragg's pitch
Speaker 1: to voters in New York was two things. One, if
Speaker 1: you elect me, I won't enforce the law which his
Speaker 1: progressive bases likes. And as a result, but he's more
Speaker 1: famous for in New York is taking actual felonies and
Speaker 1: you know, degrading them to misdemeanors or not prosecuting them
Speaker 1: at all. So it's very rich that here he's taken
Speaker 1: something that's a trivial misdemeanor, if it's even that, and
Speaker 1: try to inflate it into a felony. But you know,
Speaker 1: he campaigned on getting Trump, which is unseemly for a prosecutor,
Speaker 1: and they and the voters of Manhattan elected him on
Speaker 1: the promise to get Trump. So I think both those
Speaker 1: things go into the mix when Trump brings his motion
Speaker 1: that this is an unconstitutional selective prosecution. You have the judge,
Speaker 1: you have the prosecutor, and you have the jury pool,
Speaker 1: which you all seem to have it in for him.
Speaker 1: You know, he'll have to make the case on the judge,
Speaker 1: and you know, Trump is saying very aggressive things about
Speaker 1: the judge who has handled other cases involving the Trump organization.
Speaker 1: Trump's lawyer is, on the other hand, are saying very
Speaker 1: different things about the judge and that, like, you know,
Speaker 1: they don't think that there's a basis, at least at
Speaker 1: this point to say that he's unfair. But we'll have
Speaker 1: to see how he handles the case and how that unfolds.
Speaker 1: But if I'm Trump, the argument I make is not
Speaker 1: just based on the judge, or even just based on Bragg,
Speaker 1: or even based on the jury pool. I would I
Speaker 1: bring the whole thing together and just say, you know,
Speaker 1: there's no way that this is a fair proceeding. Well,
Speaker 1: and obviously they the concern at all of this is,
Speaker 1: you know, we're talking about a liberal city and a
Speaker 1: liberal state, with liberal judges, with a jury of your
Speaker 1: peers or probably a bunch of liberals, and you know,
Speaker 1: so a lot of people are concerned, you know, can
Speaker 1: he get a fair shake in that environment? In your estimation,
Speaker 1: with your experience of having been in the you know,
Speaker 1: the Southern District of New York on the federal level,
Speaker 1: but you know, kind of understanding the court system in
Speaker 1: the state of New York, what happens with this? How
Speaker 1: does this go down? Do you think I think it
Speaker 1: gets thrown out prior to trial. I don't think this
Speaker 1: case ever gets tride. Do you think he can get
Speaker 1: a fair shake? Yeah, I think if the judge, you know,
Speaker 1: I don't think we should jump to the conclusion that
Speaker 1: the judge is unfair. You know, It's one thing to
Speaker 1: say that, you know, he has political preferences. Everybody in
Speaker 1: New York has political preferences. It's another thing to say
Speaker 1: that he won't do his job right and that this
Speaker 1: seems to be an egregious set of legal flaws with
Speaker 1: respect to this particular indictment. And Lisa, let's remember, even
Speaker 1: the left wing commentariat is out there saying, oh boy,
Speaker 1: you know, Bragg really laid an egg here. So it's
Speaker 1: not like the judge would be the first person on
Speaker 1: the political left of center if you threw this case
Speaker 1: out to say that there are a lot of problems
Speaker 1: with this case. The other thing I would just point
Speaker 1: out to people is that, you know, we're looking at
Speaker 1: this case in a vacuum at the moment because it's
Speaker 1: the only one in front of us. But by the
Speaker 1: time we come back eight months from now, I think
Speaker 1: even eight weeks from now, this could be a very
Speaker 1: different situation. I mean, you know, I think by May
Speaker 1: you may see charges from the prosecutor in Fulton County,
Speaker 1: Fanny Willis, who's looking into the Georgia twenty twenty election stuff.
Speaker 1: And it's obvious that this special council from the Justice
Speaker 1: Department is steaming ahead. You know, this week probably the
Speaker 1: biggest thing in terms of significance. I don't think that
Speaker 1: the brag case is much but in terms of future
Speaker 1: significance for Trump, maybe the most important thing that's happening
Speaker 1: this week is is Jack Smith, the Special Counsel, is
Speaker 1: putting Secret Service agents in the grand jury on Friday
Speaker 1: to testify about what they observed in terms of Trump
Speaker 1: looking at and reviewing documents. And it's obvious that the
Speaker 1: reason they're doing that is to try to He's doing
Speaker 1: that to try to help build his grand jury obstruction case.
Speaker 1: What they want to show is that after Trump's lawyers
Speaker 1: told the Justice Department in June of twenty twenty two
Speaker 1: that they had done a thorough search of Mara Lago
Speaker 1: and the thirty eight documents they gave them that day
Speaker 1: were the only thirty eight documents with classification markings at
Speaker 1: Mara Lago, what Smith is now trying to develop is
Speaker 1: evidence that Trump not only knew that wasn't true, but
Speaker 1: that he actually physically reviewed and moved documents around the
Speaker 1: property after that. So that's clearly why he's putting the
Speaker 1: Secret Service agents. And it's a very weighty thing. The
Speaker 1: government hates the idea of Secret Service agents testifying against
Speaker 1: their protectees. It makes it very difficult for the Secret
Speaker 1: Service to do their job. That is not the kind
Speaker 1: of thing that a prosecutor does unless he's dead serious
Speaker 1: about making this case. And I think you can say
Speaker 1: that for the way he's handled January six two, because
Speaker 1: he's now you know, he's getting Mike Pence, who is
Speaker 1: the highest ranking executive official other than Trump and the
Speaker 1: Trump administration. He's going to have to testify in the
Speaker 1: grand jury next week, and he's already also compelled testimony
Speaker 1: from you know, the Chief of Staff Mark Meadows, and
Speaker 1: other top officials in the Trump administration. The reason I
Speaker 1: mentioned that is the Justice Department is usually in court
Speaker 1: when these kind of things come up, arguing for a
Speaker 1: very robust, extravagant interpretation of what the executive branch's privileges are. Here,
Speaker 1: what's happening is they're eroding the privileges, which will be
Speaker 1: to the detriment of Biden and all future presidents. Again,
Speaker 1: I think it's the kind of thing they wouldn't do
Speaker 1: unless they were dead serious about making a case. So
Speaker 1: I think if we come back, you know, a couple
Speaker 1: of months from now, this may not be the only case,
Speaker 1: and we may look at this a lot differently. I
Speaker 1: mean the left ones. I'm behind bars, you know, we
Speaker 1: know this. And with all these criminal investigations, he's facing
Speaker 1: the probability that has increased. What happens if he has
Speaker 1: found guilty before the election, if that is what the
Speaker 1: timeline would look like, or what happens if he was
Speaker 1: to hypothetically win the election and then found guilty. Yeah,
Speaker 1: I don't think he'll ever be found guilty before the election.
Speaker 1: And my own view of it is for you for
Speaker 1: what it's worth. I mean, you're not asking me to
Speaker 1: put my political head on, but I'll put it on.
Speaker 1: I think they want him to be the nominee, and
Speaker 1: I think they realized that the more unfair and provocative
Speaker 1: they are, and the more it looks like they're using
Speaker 1: the criminal justice system as a political weapon against him,
Speaker 1: the more it gins up the Trump base. We've already
Speaker 1: seen this week he had his best week politically. It's
Speaker 1: it's astonishing if you think about like all the things
Speaker 1: that the Santis is accomplishing in Florida, you know, to
Speaker 1: see Trump, you know, Spike ahead of him as he's done.
Speaker 1: I mean, obviously this is just a snapshot and we'll
Speaker 1: see how it all plays out. But you know, the
Speaker 1: effect that this is having on the Republican electorate is
Speaker 1: exactly what the Democrats want. So I've always thought that
Speaker 1: they're not going to drop these indictments without thinking through timing.
Speaker 1: And I don't see him ever going to trial or
Speaker 1: being convicted, much less anyone trying to impose a jail
Speaker 1: sentence before at least before he's tied up the Republican nomination.
Speaker 1: That's what they want. They like, the Democrats, like the
Speaker 1: havoc that this is wreaking in Republican politics. As for
Speaker 1: what happens if he gets, you know, indicted or convicted,
Speaker 1: you know, the Constitution says that the only qualifications for
Speaker 1: president are that you be over the age of thirty five,
Speaker 1: a natural board citizen, and resident in the United States
Speaker 1: for fourteen years. That's it. There's nothing in the Constitution
Speaker 1: that says that the American people can't elect not only
Speaker 1: somebody who's accused of a crime, but somebody who's convicted
Speaker 1: of a crime and in prison. Now, you obviously, if
Speaker 1: a person couldn't perform the functions of the presidency for
Speaker 1: whatever reason, it would be incumbent on Congress to impeach
Speaker 1: and remove and disqualify the person. But you know, we're
Speaker 1: a long way from that. There's nothing that says that
Speaker 1: he can't be nominated, elected, and served while he's under investigation, indictment,
Speaker 1: or even I think they would probably if he got
Speaker 1: elected and he hadn't been tried yet. I think the
Speaker 1: courts would probably suspend the trials until after his term
Speaker 1: was over. But you know, anyone tells you, Lisa that
Speaker 1: they know what's going to happen here is either lying
Speaker 1: or delusional because we've never been here before and nobody
Speaker 1: knows what's going to happen. What is the probability in
Speaker 1: your mind of them landing a conviction on either the
Speaker 1: federal charges he's facing, the charges out of New York
Speaker 1: or or Fulton, Georgia. I think I don't like the
Speaker 1: January sixth case, but I think Smith is pretty serious
Speaker 1: about bringing it. I don't like it because it's you know,
Speaker 1: he's probably going to charge him if he brings a
Speaker 1: case with conspiring to obstruct Congress's ratification of Biden's election.
Speaker 1: The only way I think he can do that is
Speaker 1: by criminalizing a legal theory, which, even if it's a
Speaker 1: bone headed legal theory, I think that's a road we
Speaker 1: don't want to go down. When I was a prosecutor,
Speaker 1: if a frivolous eagle theory is now going to be
Speaker 1: a felony, I could have charged five of them a day.
Speaker 1: I mean, defense lawyers are very creative with some of
Speaker 1: the stuff they come up with. So I hope he
Speaker 1: doesn't go there, but he may go there. The strongest case,
Speaker 1: least it seems to me, is the documents case, which
Speaker 1: would be presented as a documents case except for the
Speaker 1: political inconvenience that it turns out that Biden also is
Speaker 1: a serial hoarder of classified documents illegally. So now what
Speaker 1: you have seen happen, and I think this was pretty predictable.
Speaker 1: The minute that it became obvious that Biden also hoarded
Speaker 1: classified documents, the prosecutor, the Justice Department, the Biden administration,
Speaker 1: and the media Democrat complex has reframed that case from
Speaker 1: a document retention case to a grand jury obstruction case.
Speaker 1: And what they're going to argue is that the difference
Speaker 1: in the two situations and what justifies prosecuting Trump but
Speaker 1: not trust prosecuting Biden. Is that Biden cooperated with the authorities,
Speaker 1: whereas Trump obstructed the grand jury. I don't know if
Speaker 1: that's going to work as a public relations strategy, but
Speaker 1: that's their story and they're sticking to it. And I
Speaker 1: do think he's going to be indicted for obstructing the
Speaker 1: grand jury. Well, so, I think you can make the
Speaker 1: argument that he didn't because there was additional documents in
Speaker 1: his home that he didn't make them aware of. But
Speaker 1: I see your point in terms of legally what they
Speaker 1: would they would try to argue. But Andy, this has
Speaker 1: been truly fascinating. I have learned so much in this
Speaker 1: period of time with you. I would absolutely love to
Speaker 1: have you back on the show. You do such a
Speaker 1: great job breaking this all down for people like me
Speaker 1: who do not have a legal debate but doing show,
Speaker 1: but doing so, you know, it's good for your mental
Speaker 1: health that you didn't let them do law school to you, Lisa,
Speaker 1: So that's good. And look at all these my dad's
Speaker 1: look at all these crimes you haven't committed. So you know, well,
Speaker 1: my dad's a lawyer, and I thought about it because
Speaker 1: I you know, I kind of share his analytical nature,
Speaker 1: but this was fascinating. You do such a great job.
Speaker 1: I've learned so much from you, and I just truly
Speaker 1: appreciate your time and your expertise in in this So
Speaker 1: thank you so much. Thank you for having me appreciate it.
Speaker 1: So is Andy McCarthy. I'm so glad he came on
Speaker 1: the show because he does such a good job of
Speaker 1: I think it's really hard for attorneys and particularly people
Speaker 1: in the legal field to break things down in layman's terms,
Speaker 1: and he's able to do that in such a take
Speaker 1: these complex issues and make it easy for us to
Speaker 1: understand even without having a legal degree or a legal background.
Speaker 1: Rather so I appreciate him coming on the show. I
Speaker 1: appreciate you guys at home for listening every Monday and Thursday,
Speaker 1: but you can listen throughout the week. I want to
Speaker 1: thank John Cassio, my producer, for putting the show together.
Speaker 1: Until next time,