Speaker 1: I never thought anything like this could happen in America
Speaker 1: could happen, but it did happen. For the first time
Speaker 1: in our history, a former president was charged with a crime,
Speaker 1: taken into custody, fingerprinted, and arraigned on thirty four felony
Speaker 1: counts of falsifying business records. Trump pleaded not guilty and
Speaker 1: only uttered ten words behind closed doors in the Manhattan
Speaker 1: Criminal courtroom, But in a Grievanceville speech before supporters at
Speaker 1: Mara Lago that evening, he attacked the indictment as politically
Speaker 1: motivated and leveled attacks on the judge, the district attorney,
Speaker 1: and their families. I have a Trump painting judge with
Speaker 1: the Trump painting wife and family whose daughter worked for
Speaker 1: Kamala Harris. The criminal is the district attorney because he
Speaker 1: illegally leaked massive amounts of grand jury information. Manhattan DA
Speaker 1: Alvin Bragg claims that Trump falsified business record at his
Speaker 1: company relating to a one hundred thirty thousand dollars hush
Speaker 1: money payment to porn star Stormy Daniels in an effort
Speaker 1: to hide salacious news from the public in order to
Speaker 1: win the presidency. Thirty four false statements made to cover
Speaker 1: up other crimes. These are felony crimes in New York State.
Speaker 1: No matter who you are, we cannot and will not
Speaker 1: normalize serious criminal conducts. Joining me is Michael Moore, a
Speaker 1: partner More Hall and the former US Attorney for the
Speaker 1: Middle District of Georgia. Michael, it's a bare bones indictment.
Speaker 1: Thirty four records. Trump is accused of falsifying. That's clear
Speaker 1: and simple. But in order to bump these up to felonies,
Speaker 1: the district attorney has to show that they were falsified
Speaker 1: with the intent to commit, aid or conceal another crime.
Speaker 1: But the indictment doesn't specify what those other crimes are,
Speaker 1: and the district attorney was really ambiguous about them at
Speaker 1: the press conference. So is that a weakness in the
Speaker 1: case or is it the DA playing his cards close
Speaker 1: to his vest I really think it's a weakness in
Speaker 1: the case. A prosecutor's job is to do things in
Speaker 1: a way that follows the law in the facts, but
Speaker 1: also to give the public confidence in his or her
Speaker 1: decision making and charge of decisions as they've moved forward.
Speaker 1: And you know, without that information, I just don't think
Speaker 1: the indictment does that when I looked at the indictment
Speaker 1: in the statement of fact, I was underwhelmed. Would probably
Speaker 1: be generous to say that. And I've heard a lot
Speaker 1: of talk about the issue of everyone's treated the same
Speaker 1: or should be treated the same under the law. But
Speaker 1: the reality is you can do that while at the
Speaker 1: same time recognizing the fact before us, if this is
Speaker 1: a former president and historic prosecution in any manner, and
Speaker 1: so I really felt like it needed to have more
Speaker 1: meat on the bones than we saw in the indictment.
Speaker 1: I think there's some things that are going to be
Speaker 1: subject to appeal right away from the indictment that deals
Speaker 1: with you whether or not the federal election laws can
Speaker 1: be the crimes that are sort of the secondary tier
Speaker 1: that allow the cases to be vowed from a mistermount
Speaker 1: to a felony, and then with are not in a
Speaker 1: potential tax violation in fact and cover that as well.
Speaker 1: So we just begin to see, I'm sure what will
Speaker 1: be a long pre trial motion process. So is what's
Speaker 1: likely to happen that during discovery, defense attorneys get those
Speaker 1: answers from the prosecutor about what the underlying crime is
Speaker 1: or will they have to wait till trial. Now I
Speaker 1: think they'll probably file a motion early on to demand
Speaker 1: that there'll be more specifics given in the charge of
Speaker 1: document and indictment for people who don't do it every day.
Speaker 1: If you think about this, that the indictment is really
Speaker 1: the document that has to be given to anyone who's
Speaker 1: charged with the crime so that they can have a
Speaker 1: complete and full understanding of what they're being charged with.
Speaker 1: It's a notice document, and so this just simply I
Speaker 1: don't think gave sufficient notice. So I imagine that the
Speaker 1: lawyers were Trump will not only file them motion to
Speaker 1: dismiss that they'll also then ask accord in the alternative
Speaker 1: and maybe in second motions as well, for specific particulars
Speaker 1: about the charges in question. The defense attorneys have said
Speaker 1: they're going to be aggressive with motions. What kind of
Speaker 1: motions can we expect, Well, I think it's likely that
Speaker 1: you'll see an initial motion challenging the jurisdiction of the court,
Speaker 1: probably raised on constitutional grounds. There will be arguments about
Speaker 1: presidential immunity. I think you will have motions on the
Speaker 1: indictment itself and whether or not it's sufficient. So you'll
Speaker 1: see likely motions to dismiss, challenging the language of the indictment,
Speaker 1: the notice given to a defendant in the indictment, the
Speaker 1: sufficiency of each of the allegations that stated on the
Speaker 1: face of the indictment. And you know, when you think
Speaker 1: about that too, remember that a defendant doesn't have to
Speaker 1: try to guess what's in the prosecutor's mind. He didn't
Speaker 1: have to wait and guess what might be presented to
Speaker 1: the jury. He's entitled to some notice in a case.
Speaker 1: And so they'll challenge the indictment on sufficiency, I feel certain,
Speaker 1: and there'll be some challenges as well on this sort
Speaker 1: of new idea about whether or not you can have
Speaker 1: as a basis for a state criminal prosecution and allegation
Speaker 1: that is so inextricably tied to federal election law and
Speaker 1: a federal statute, and is that actionable in the criminal
Speaker 1: courts in New York. That's some of the initial motions
Speaker 1: I think we'll see. You're going to have other motions
Speaker 1: as well. They'll probably be a motion to change the
Speaker 1: venue or the place where the trial would be held.
Speaker 1: I'd expect very likely that you'll see motions to disqualify
Speaker 1: the prosecutor and likely to ask the judge to accuse himself.
Speaker 1: You know, these will be aggressive defense attorneys, as they
Speaker 1: should be, and every defendant under the Constitution has a
Speaker 1: right to a zealous defense, and so I expect that
Speaker 1: you'll see this. But again, it will be especially so
Speaker 1: because of the enormity of this case and the ramifications
Speaker 1: of this case really not just now, but in fifty years,
Speaker 1: what this means and whether or not there could be
Speaker 1: local charges against the formal president for some conduct even
Speaker 1: while the president may have been in office. Are you
Speaker 1: basically saying that, despite what Bragg says, that Trump can't
Speaker 1: be treated just like any other defense. I think that
Speaker 1: that's right. I think that you try to treat people fairly,
Speaker 1: but you can't get around the circumstances that we're in.
Speaker 1: And you don't have to look any further the fact
Speaker 1: that you know, we had to have the courthouse closed
Speaker 1: basically to allow Trump to appear in court for security reasons.
Speaker 1: That's treating it different than any other defendant. I mean,
Speaker 1: that's just the reality that we're in. I think, given
Speaker 1: the charges against a formal president, there'll be security issues
Speaker 1: that go on throughout the trial. There'll be scheduling an
Speaker 1: appearance issues that go off throughout the trial. There may
Speaker 1: be appeals where the federal courts are more actively involved
Speaker 1: in the case because the charges involved a formal president.
Speaker 1: You basically matters move more quickly towards the Supreme Court
Speaker 1: because of that, as we deal with constitutional issues that
Speaker 1: are not president in every other case. And I think too,
Speaker 1: I mean, I do think that you know, a prosecutor
Speaker 1: has to also use his or her discrestion and bring
Speaker 1: in cases. And you'd like to say, and I think
Speaker 1: prosecutor would tell you that every time they ever see
Speaker 1: a violation of any crime anywhere and if your station,
Speaker 1: they bring charges. But that's just not the case. And
Speaker 1: you can think, I'm sure about circumstances where people get
Speaker 1: a warning when they violated speeding on him, some drivers
Speaker 1: get a warning, somebody does not, or cases where somebody's
Speaker 1: charged with an offense that could prohibit them from going
Speaker 1: to college and complete the scholarship that the prosecutor decides
Speaker 1: to reduce the charge so that they're not thrown out
Speaker 1: of college. You can go down a list of examples
Speaker 1: that are very much real life examples about how prosecutor
Speaker 1: has to think about things. And I think this is
Speaker 1: an example of when even though the law has an
Speaker 1: even hand and Lady Justice is blind, you still have
Speaker 1: to think about what we're doing as it relates to
Speaker 1: the United States and what case may be the case
Speaker 1: if you're going to bring one forward that should be
Speaker 1: a league case against a former president of the United States,
Speaker 1: And is this the case? I mean, is this in
Speaker 1: fact the case that basically is the best to knock
Speaker 1: the king off the throne? And I think that's going
Speaker 1: to be the question today. Remember as well that you know,
Speaker 1: the former disc attorney did not prosecute, the Department of
Speaker 1: Justice declined to prosecutor case like this, and yet here
Speaker 1: we are. And you know, one thing they have to
Speaker 1: be thinking about, I'm certain is you know they had
Speaker 1: a very sort of a similar type of case. It
Speaker 1: wasn't exactly it would say, among the facts, but you
Speaker 1: had a former presidential candidate who had been charged similarly
Speaker 1: in the Edwards case, and ultimately he was acquitted at trial.
Speaker 1: There were some tausid but Jerry hung on, but they
Speaker 1: were ultimately dismissed and not pursuing further by the government.
Speaker 1: So all those calculations have to be in a prosecutor's mind.
Speaker 1: You can see if you think about even the Southern
Speaker 1: District of New York declining to move forward. They have
Speaker 1: to be thinking about things like witness credibility and availability
Speaker 1: of evidence on the statements that have been made. Those
Speaker 1: are real life calculations that go into a decision or
Speaker 1: whether or not to move forward the case, even though
Speaker 1: you may be satisfied in your gut that something illegal
Speaker 1: was done. Before the arraignment, Trump called the DA an animal.
Speaker 1: He posted a picture of himself with a base ball
Speaker 1: bat next to a photo of the judge, and during
Speaker 1: the arrayment, the judge warned him about dangerous rhetoric. Yet
Speaker 1: hours later at Marlogo, we attacked the judge, the DA
Speaker 1: and their families. Inexcusable. It's inexcusable. I thought that his
Speaker 1: comments have been outrageous. You know. I think a prosecutor
Speaker 1: expects in some regards to not have friends and on
Speaker 1: the other side of the versus mark, and that is
Speaker 1: because you're essentially doing a job that would likely result
Speaker 1: in a criminal conviction and maybe jail time against the
Speaker 1: dependence that you're prosecuting, and so you sort of expect
Speaker 1: as part of your job to have names used against you.
Speaker 1: I think that when you bring in family members, children, spouses,
Speaker 1: the spouses and family members of the court, those types
Speaker 1: of things, It's inexcusable, it's ill advised. I think, at
Speaker 1: the end of the day, can come back to bite
Speaker 1: people who do that. And I also I'm not surprised
Speaker 1: at all given what we witnessed during the Trump administration
Speaker 1: and certainly during the campaign time. I'm about his use
Speaker 1: of that kind of rhetoric. You know, you remember, this
Speaker 1: is the same person who's mocked people in hurtful and
Speaker 1: hateful ways, and so I'm not surprised by it. I
Speaker 1: think if you're a lawyer trying to represent a quiet
Speaker 1: like that, you have your hands full and you have
Speaker 1: a great deal of frustration that you can't probably fully
Speaker 1: expressed to somebody who's a former president of United States.
Speaker 1: But I'm sure that every lawyer was cringing when the
Speaker 1: attacks got cut loose on the judge. I also don't think, frankly,
Speaker 1: that they were just at homitive attacks. I think it
Speaker 1: was an effort to force an accusal by this judge
Speaker 1: and debate him a little bit. Given the recency of
Speaker 1: the comments and the warnings that have been given by
Speaker 1: the court to Trump and his team. But to do
Speaker 1: anything that incites violence, to do anything that places a
Speaker 1: famine member of a prosecutor or a judge, or anybody
Speaker 1: involved in the system. I mean, to do anything that
Speaker 1: puts those people in harm's way and at risk is inexcusable.
Speaker 1: It needs to be addressed on its own, outside of
Speaker 1: what may or may not come in the way of
Speaker 1: a gag order. You know, this is not normal conduct.
Speaker 1: This is not something that's allowed. I can tell you
Speaker 1: a fact in Georgia that did that, they'd find themselves
Speaker 1: locked up in the jail, their bond revolte. But somehow
Speaker 1: he has done things to our system and sort of
Speaker 1: trained us to think that, at least as it comes
Speaker 1: from him, that this is a normal conduct. Well, there's
Speaker 1: nothing normal about and it's one of the great damages
Speaker 1: I think he's done to America and to our institutions,
Speaker 1: and that is to do away with the norms of
Speaker 1: decency and professionalism and the psychicety for our institutions that
Speaker 1: have kept our Democrats are strong. Even if they make
Speaker 1: a motion and they've sort of hinted at making a
Speaker 1: motion for the judge to recuse himself. Judge oversaw the
Speaker 1: tax fraud trial against the Trump Organization and CFO. Do
Speaker 1: you think that he would ever recuse himself. I think
Speaker 1: he could. And let me say this, I don't think
Speaker 1: that's the fact that he may accused himself or consider
Speaker 1: accused himself, is any sign of weakness or wrong doing.
Speaker 1: I think judges and prosecutors are to do things that
Speaker 1: make sure that there's no appearance of any conflict of
Speaker 1: interests and no appearance of any impropriety in any way,
Speaker 1: even if there is none, it's to protect the system
Speaker 1: and the process from the appearance of that. To me,
Speaker 1: that seems like a pretty clear reason for the judge
Speaker 1: to refuse himself, and that is because his daughter, if
Speaker 1: she's working for the campaign, is basically in the throes
Speaker 1: of an upcoming election season against that campaign's opponent or
Speaker 1: likely opponent, you know, if the likely opponent is going
Speaker 1: to lose. And that may mean that the daughter, my
Speaker 1: virtual work on the campaign stands to gain income or
Speaker 1: continues employment as a campaign or whatever it is she does.
Speaker 1: And I don't know that, but let's just use as
Speaker 1: an example. That's a good reason to set aside and
Speaker 1: let another judge here. Now. Doesn't mean that this assigned
Speaker 1: judge would do anything different because of that. But it
Speaker 1: lets the public have a confidence and it lets the detractors.
Speaker 1: It takes the steam out of their engines to say, Okay,
Speaker 1: we've got to judge now who has no connection, no
Speaker 1: familiar connection at all, to Trump's opponents. You're never gonna
Speaker 1: make everybody happy, but it gives the appearance of the
Speaker 1: process that there's no no possibility of favoritism or more
Speaker 1: slant and rudely drink thing like that. Yeah, this judge
Speaker 1: may have done nothing different, he may do nothing different
Speaker 1: through the trial. But it's more about protecting the appearance.
Speaker 1: And you know, an example that Democrats want to talk
Speaker 1: about is the Class Thomas situation. You know, we've heard
Speaker 1: for years now and especially very recently about concerns about
Speaker 1: text messages that the justice's wife may have made and
Speaker 1: money so she may have received and our organization may
Speaker 1: or may not have received. I mean, there's been all
Speaker 1: these kinds of this talk out there, and there's this
Speaker 1: clamor from the Democrats said, well, they've got he's got
Speaker 1: to accuse himself, he's got to step day, he's going
Speaker 1: to do this. You know that the appearance is bad.
Speaker 1: He could have a confident to venture as well. The
Speaker 1: same may be truth here, and that is it's again
Speaker 1: there's nothing to say, but the justice is ruled a
Speaker 1: particular way because he was told to do that, of
Speaker 1: because he was doing a particular favor for his wife
Speaker 1: or anything else. But it calls into question the decisions
Speaker 1: that he's made because of this potential appearance of the conflict.
Speaker 1: Now in the Trump case, you know, every decision that
Speaker 1: this judge makes may be called into question because of
Speaker 1: the impossible appearance of a conflict of interest, whether in
Speaker 1: fact there's anything to it or not. So it's simply
Speaker 1: a way to protect the public's belief in public confidence
Speaker 1: in the judicial process. Let's say it remains with this judge.
Speaker 1: He set the next major court date for December fourth.
Speaker 1: The prosecution was pushing for opening arguments to begin sometime
Speaker 1: in January of twenty twenty four. Trump's defense asked for
Speaker 1: a few more months, maybe sometime in spring of twenty
Speaker 1: twenty four. Do you think the judge will be able
Speaker 1: to keep this on a tight timeline. It's unimaginable to
Speaker 1: me that he would. Number one, he won't be handling
Speaker 1: this on at all without appeals to the courts in
Speaker 1: a locatory appeals or intermediary peoples. And also, I don't
Speaker 1: think there's any way possible to consider that a court
Speaker 1: is going to make a candidate for office come try
Speaker 1: a case a few months before a primary election or
Speaker 1: in the middle of a presidential election season. I just
Speaker 1: have a hard time of imagining that that's going to
Speaker 1: be allowed. And again, I mean that throws into the
Speaker 1: debate I guess about as we go forward. Does that
Speaker 1: mean that every time a presidential elections comes up, a
Speaker 1: local partition's going to charge the candida to the other
Speaker 1: side and try to get up into court so they
Speaker 1: can't campaign. I mean, that's that's one of the very
Speaker 1: real concerns. I think that's out there as we think
Speaker 1: about this this case. If they wanted to try the case,
Speaker 1: it should have been tried a long time ago. But
Speaker 1: we've now suddenly waited until pretty much in the middle
Speaker 1: and certainly the warm up of the presidential campaign season.
Speaker 1: And I just have a hard time believing that the
Speaker 1: courts will allow a candidate to be sidelined for a
Speaker 1: case it could have been brought years ago. Speaking of
Speaker 1: should have tried it, sooner. What is happening in Georgia.
Speaker 1: Da Willis started her investigation just days after recording was
Speaker 1: made public. In January twenty twenty one, she had this
Speaker 1: special grand jury where seventy five witnesses, including some high
Speaker 1: level Trump people, testified. Eighteen people have been notified their
Speaker 1: targets of the investigation. So what is she waiting for? Well,
Speaker 1: I mean, that's a good question, and that's another example
Speaker 1: of where the case could have been brought a long
Speaker 1: time ago in a more clean fashion and with an easier,
Speaker 1: simpler target of a case, rather than what I think
Speaker 1: she's doing, and that now all appearances is she's looking
Speaker 1: at this is more of an organizational type conspiracy or
Speaker 1: agreement to overthrow the election. And that's led to this
Speaker 1: idea for whether there's going to be a Rico prosecution
Speaker 1: and wi be a Rico indictment in those cases take
Speaker 1: a long time after they indicted. So I see no
Speaker 1: way even if she got an indictment tomorrow from the
Speaker 1: grand jury against Trump and whoever else, I see no
Speaker 1: way that her case could ever wrap up before the
Speaker 1: election in twenty four And you know there's a case
Speaker 1: going on in in Lina, right now against a rapper,
Speaker 1: and it's a Rico prosecution, and they've spent months and
Speaker 1: months trying to get a jury to have been unable
Speaker 1: to do that, and in part because people can't acknowledge
Speaker 1: and can't say with any certainty that they can take
Speaker 1: a year off what they're expected for the trial. And
Speaker 1: so I just think it's going to be next impossible
Speaker 1: for that case to move forward before the election. She
Speaker 1: could certainly give the indictment. I see no way she
Speaker 1: could get the case tried. They could be through the
Speaker 1: emotions process and the appeals process and working on that
Speaker 1: to be an electory appeals, But to get to a
Speaker 1: trial and have any kind of conclusion, I think there's
Speaker 1: no way. And so then you get into the question
Speaker 1: of what if he wins, if he wins broke the primary,
Speaker 1: and if he happens to win an election, what do
Speaker 1: you do then and what happens to the case. And
Speaker 1: I think that you know, we know that the courts
Speaker 1: are not going to make somebody come in and answer
Speaker 1: who is president States after state criminal charges, because they've
Speaker 1: got other things to tend to, like whether or not
Speaker 1: the nuclear missiles are safe and those kinds of things.
Speaker 1: So you know, those are big considerations that have to
Speaker 1: come down. But this again, sometimes you know, you don't
Speaker 1: always want the perfect to be the enemy of the good.
Speaker 1: And so this is a kind of example where maybe
Speaker 1: you don't want the complex, the more complex and complete
Speaker 1: to be the enemy of the good. And that is
Speaker 1: could she have moved forward on a case that was
Speaker 1: more targeted. Could she have moved forward baby on account
Speaker 1: if she wanted to charge or an account of attempting
Speaker 1: to influence Secretary Raffersburger that performance kids duties by way
Speaker 1: of that phone call, because she's done something like that,
Speaker 1: and without going through this lengthy, lengthy investigation that I
Speaker 1: think so. But often again she may have evidence that
Speaker 1: we all know about. She certainly has been involved in
Speaker 1: the case, and I have no insight knowledge about what
Speaker 1: she's considering and reviewing. So I don't want to sec
Speaker 1: against everything she's doing. But I would have liked this
Speaker 1: thing that they were going to bring a case because
Speaker 1: of these timing issues. And there again kind of takes
Speaker 1: this full circle for this idea about or people treated differently, Well,
Speaker 1: you are treated differently if you're a sitting president and
Speaker 1: you're charged with a crime. Or your schedule for trial
Speaker 1: you would charge before your president and your schedule try
Speaker 1: you are treated different. That's just that's just real. There's
Speaker 1: no real way around that. Those are considerations that have
Speaker 1: to be out there, you know, and we'll say kind
Speaker 1: of it's sat here as we've taught long. You know,
Speaker 1: another example, you think about people or they treated differently
Speaker 1: under the law, Well, you have a lot of people
Speaker 1: when they're convicted, they're immediately carted off to jail. They're
Speaker 1: handcuffed in the courtroom and taking to jail. Sometimes that's different.
Speaker 1: If you're having to be a pregnant mother, you know,
Speaker 1: you're given a certain amount of time. There are other
Speaker 1: things that considerations that are made. So there are differences
Speaker 1: that life and circumstances bring, and that's sometimes the beauty
Speaker 1: of judicial and prosecutors discretion as you work through those
Speaker 1: things to still give people confidence in judicial process. And
Speaker 1: during this Moralogo speech, Trump kept coming back to the
Speaker 1: investigation that reportedly is the one that bothers him the
Speaker 1: most or concerns him the most, and that's the Special
Speaker 1: Counsel's investigation into the classified documents. And as he's done before,
Speaker 1: Trump admitted that he had those documents sent to Morolago,
Speaker 1: and there's additional reporting from the Washington Post that the
Speaker 1: Special Council has information that he actually went through boxes
Speaker 1: of documents after he got the subpoena. So there's another
Speaker 1: one where I'm like, well, why aren't you bringing the indictment? Right?
Speaker 1: I mean, it seems like a fairly clear case. Either
Speaker 1: you had the documents or you didn't. I mean, and
Speaker 1: either you responded to the subpoena or you didn't. Least
Speaker 1: pretty clear issues. I think the Special Council has moved
Speaker 1: fairly quickly since he's been assigned, and we know that
Speaker 1: he's put some some pressure and interviews on various members
Speaker 1: of Organslation, and he's continuing to look at that. But
Speaker 1: it does seem like a case that could be very clear.
Speaker 1: I'm sure that when Trump was making his comments about
Speaker 1: I think he said he was openly and clearly or
Speaker 1: something like that packing up his boxes or bringing boxes
Speaker 1: down the monologue. I'm sure his lawyers will probably crawling
Speaker 1: under one of the Golden League tables, you know, down
Speaker 1: there in that country club as they listen to that.
Speaker 1: Think I have he had just kind of admitting to
Speaker 1: things that he didn't need to do. And I'm sure
Speaker 1: he'll have a reason and there'll be some excuse this
Speaker 1: is what he really meant. But you know he can
Speaker 1: be his own worst enemy. I'll bet there was a
Speaker 1: note taker in the Special Counsel's office, you know, using
Speaker 1: a highlighter and and to be marking that on a
Speaker 1: transcript somewhere, and it's likely to show up later in
Speaker 1: a court prositing. That's why I think Jack Smiths cases
Speaker 1: are the stronger. The DA in New York, the Dam Georgia,
Speaker 1: and the Special Counsel. They should have met somewhere for
Speaker 1: a summit, I mean in secret, if Camp David or
Speaker 1: whatever they need to do, you know, to meet somewhere
Speaker 1: and talk about what are we doing so that I
Speaker 1: don't step on your toes, you know, so that you
Speaker 1: know we work in a way that's productive. We can
Speaker 1: talk about time and lawforce nats whos do this all
Speaker 1: the time and deconfliction. So if you've got the DA
Speaker 1: working on a case and the FBI working on the
Speaker 1: case and the higher s agents looking at the case,
Speaker 1: they deconflict so they don't put their sources in jeopardy.
Speaker 1: So the investigations not compromised in some way that they
Speaker 1: can protect lawforcement officers that may be on the sane.
Speaker 1: They deconflict, well, they should have been sort of a
Speaker 1: deconfliction between these three prosecutors saying, okay, who has the
Speaker 1: case it's going to survive? Exeppellent question, what happens if
Speaker 1: your case gets the Supreme Court first and they rule
Speaker 1: you know this way, that may kill off nine diement?
Speaker 1: What happens if you know? There has to be a
Speaker 1: discussion and there's nothing wrong, that's not a conspiracy against Trump,
Speaker 1: that's a that's just law enforcement officers getting together when
Speaker 1: you're talking about are you going to bring charges against
Speaker 1: their former president? And I hope they did it. There's
Speaker 1: no indication that they have, but I would hope that
Speaker 1: there's been some discussion. I mean, the charges of them,
Speaker 1: that'sation between jack Smith group and the Fulton DA are
Speaker 1: so overlapped that surely there's been some discussion about who's
Speaker 1: bringing what you know, who's got the best venue to
Speaker 1: bring it in, whose laws he's going to be more favorable,
Speaker 1: who can support a conviction if you know, if they
Speaker 1: get one. Surely they've talked about that, but I don't know,
Speaker 1: there's no indication they are. That's amazing to me. I
Speaker 1: mean one of the first motions I think. I mean,
Speaker 1: it would be filed down here depending on what she does.
Speaker 1: But if she charges him with anything to do with
Speaker 1: the phone call, and especially anything that between January one
Speaker 1: and inauguration day in twenty twenty, I imagine you going
Speaker 1: to see a moast of transferred to federal court and
Speaker 1: they look, he was president and he was doing such
Speaker 1: and such as his position as president nited states he
Speaker 1: was called as a candidate but also president calling to
Speaker 1: check on middle extra time. I mean, they'll make some motion,
Speaker 1: but surely they thought about is the case will be
Speaker 1: in federal court or stake core but in thanks so
Speaker 1: much for joining us. Michael. That's Michael More, former US
Speaker 1: Attorney for the Middle District of Georgia and a partner
Speaker 1: at Moore Hall. Jury selection begins in the one point
Speaker 1: six billion dollar defamation suit over Fox News airing of
Speaker 1: false claims that Dominion voting systems rigged the twenty twenty
Speaker 1: presidential election. Fox's list of witnesses includes current host Maria Bardaromo,
Speaker 1: Tucker Carlson, Sean Hannity and Janine Pierro and Rupert Murdoch
Speaker 1: and his son Laughlin will have to testify if they're
Speaker 1: subpoenaed by Dominion. The trial should shed light on why
Speaker 1: Fox repeatedly allowed guests like Rudy Giuliani and former Trump
Speaker 1: campaign lawyer Sidney Powell to falsely claim that Dominion conspired
Speaker 1: with foreign hackers and corrupt Democrats to ensure Joe Biden one,
Speaker 1: even though many Fox employees knew that was bogus. Sydney,
Speaker 1: we talked about the Dominion software. I know that there
Speaker 1: were voting irregularities. Tell me about that. Let's to put
Speaker 1: it mildly. The Dominion software system has been tagged as
Speaker 1: one allegedly capable of flipping votes, and don't forget still
Speaker 1: serious questions about the integrity of Dominion. Fox is going
Speaker 1: to trial facing a major legal setback. The trial judge
Speaker 1: has ruled that it's crystal clear that none of the
Speaker 1: statements made on Fox relating to Dominion in the twenty
Speaker 1: twenty election are true, taking that question away from the jury.
Speaker 1: Joining me to preview the upcoming trial is David Korsnick,
Speaker 1: an expert in defamation law and a partner at Miller
Speaker 1: Coorsnick Summer's Raymond David tell Us about the ruling that
Speaker 1: Fox can't dispute that it broadcast falsehoods when it allowed
Speaker 1: allies of Donald Trump to float harmful claims about dominions
Speaker 1: supposedly rigging voting machines. Well, first of all, it's a
Speaker 1: really methodical and careful decision, and what he's doing here
Speaker 1: is kind of shaping the battlefield to this trial. There
Speaker 1: are issues that have been determined on summary judgment, and
Speaker 1: there are issues that are open for the trial. The
Speaker 1: ones that are closed and that he ruled on, but
Speaker 1: no jensonable person could think otherwise is that the statements
Speaker 1: about dominion are false. There's no contrary evidence that would
Speaker 1: make that an issue of fact that a journey needs
Speaker 1: to decide where an open question was in this motion
Speaker 1: which statements were fact and which are non actionable opinion.
Speaker 1: And the judge actually does, in the appendix go through
Speaker 1: every single alleged statement broadcast and identifies those lines within
Speaker 1: them that are factual assertions and not non actionable opinions.
Speaker 1: All of that shot. So, how much of a blow
Speaker 1: to Fox is this decision. It's significant, but not surprising,
Speaker 1: It's most significant for Fox in terms of the fact
Speaker 1: that it hoped that they could get rid of some
Speaker 1: of the claims by getting a ruling that they were
Speaker 1: matters of opinion is now behind them and didn't succeed.
Speaker 1: By the way, some of it did succeed in the
Speaker 1: sense that the judge isolates those statements that are fact,
Speaker 1: and he highlighted those that were clearly non actionable opinion.
Speaker 1: So to some extent they probably did winnow down some
Speaker 1: of the claims to get some of them excluded his opinion,
Speaker 1: But within each broadcast, the court found that there were
Speaker 1: statements that were assertions of fact and therefore actionable. Fox
Speaker 1: tried a First Amendment defense that it was simply reporting
Speaker 1: on newsworthy statements from public figures. How did that defense fair? Overall?
Speaker 1: It didn't farewell. In other words, that they wanted to
Speaker 1: say that these were just neutral and fair reports of
Speaker 1: public perceivings. Some of them were, and the court doesn't
Speaker 1: explicitly identify those that get thrown out, so those didn't
Speaker 1: go well either. I just think one thing about this
Speaker 1: case that is some ways really remarkably different than most,
Speaker 1: and that is that rarely do you ever in a
Speaker 1: case get the degree of insight into the internal editorial
Speaker 1: deliberations of the news organization about a particular story or
Speaker 1: set of stories. There's a thing called the reporter's privilege
Speaker 1: which was litigated in order to prevent the disclosure of
Speaker 1: internal deliberations within Fox about what they were broadcasting. And
Speaker 1: normally that will work, but in this case it did partly.
Speaker 1: When you read some of the motion papers, you see
Speaker 1: that they're redactions, and that's probably because some of those
Speaker 1: redacted statements were protected by the reporter's privilege, and some
Speaker 1: of them may even be confidential sources that are under
Speaker 1: New York law absolutely privileged. There are other kinds of
Speaker 1: statements that are only conditionally privileged, and those are the
Speaker 1: ones that the plaintiff dominion were able to get. How
Speaker 1: did they get them? How did they over fund the
Speaker 1: burden that you have to meet in order to beat
Speaker 1: the privilege or crack it. It's really interesting. This is
Speaker 1: unique about this case is that the Fox reporting was
Speaker 1: itself the subject of months and months of reporting by
Speaker 1: other news organizations, and many of its employees had left
Speaker 1: in distress and anger over these issues. They'd fired some
Speaker 1: of them too, including some of the people who called
Speaker 1: the Arizona stuff and so on. So you had all
Speaker 1: these sources out there talking to news organizations and saying, oh, well,
Speaker 1: Suzanne Scott spent this email to me. I don't have it,
Speaker 1: but this is what she said. So and so had
Speaker 1: this meeting and they talked about this, and I heard
Speaker 1: it and I was in. Once you have that kind
Speaker 1: of particularity, once you know what you're looking for as
Speaker 1: a plaintiff, you can then meet the burden that you
Speaker 1: have to meet in order to crack the reporter's privilege.
Speaker 1: Otherwise you can. So let's discuss what will be before
Speaker 1: the jury and what dominion will have to prove. What's
Speaker 1: called actual malice. So actual malice is a technical term
Speaker 1: and it's got nothing to do with malice. What it
Speaker 1: is is a state of mind about truth and falsehood.
Speaker 1: Publishing something knowing that it is false or with a
Speaker 1: high degree of awareness of its probable falsehood. That's the
Speaker 1: definition of it. What it is not is biased. You're
Speaker 1: allowed to be biased. It is not irresponsible journalism. You
Speaker 1: can be irresponsible but still not act with actual malice.
Speaker 1: You can be careless, you can be irresponsible, you can
Speaker 1: be grossly irresponsible, which is the lower standard in private
Speaker 1: figure cases. The plaintiff has to show that the defendant
Speaker 1: published something that was false and at the time they
Speaker 1: did that they published it, they knew it was false
Speaker 1: or had a high degree of awareness of its probable falsehood.
Speaker 1: And what's really kind of scary here for the defendants
Speaker 1: in this case is that there's a lot of traffic
Speaker 1: within their organizations and indicate that they're highly aware of
Speaker 1: its falsehood and that the people who are expressing that
Speaker 1: are And this is what the jury is going to
Speaker 1: have to decide participants. In the shape of those broadcasts,
Speaker 1: you know, there's this big thing about what is Rupert
Speaker 1: Murdoch think and what is Lachlan think and so on.
Speaker 1: It looks like they're kind of calling audibles too the
Speaker 1: news team as to what it ought to do, but
Speaker 1: the planiff doesn't need them in order to land the
Speaker 1: proof of actual malice, which by the way, is pretty daunting. Normally,
Speaker 1: you have to prove it with not just preponderance of
Speaker 1: the evidence, which is the usual thing, but you have
Speaker 1: to prove it with clear and convincing evidence. But somewhere
Speaker 1: between preponderance of the evidence, which is more than fifty
Speaker 1: percent likely, but less than what is required in a
Speaker 1: criminal case, which is beyond a reasonable doubt. Some who've
Speaker 1: looked at all the emails and techs seem to think
Speaker 1: that it won't be that difficult to prove actual malice here.
Speaker 1: I don't think that it will be difficult. I think
Speaker 1: that there could be some open questions about, you know,
Speaker 1: how soon did Fox editors and producers recognize that these
Speaker 1: statements about demeaning were false. It seems pretty early in it.
Speaker 1: You see the judges laid out both a timeline of
Speaker 1: their awareness of falsehood and a timeline of the different publications.
Speaker 1: So there could be some early on that don't meet
Speaker 1: the actual analyice standard. We'll see what the jury does
Speaker 1: with that. But as the understanding of the falsehood of
Speaker 1: these statements kind of traits all levels of the news organization,
Speaker 1: then I think it's not going to be hard for
Speaker 1: the plaintiff to show that. So how likely is it
Speaker 1: that there'll be a settlement on the eve of trial.
Speaker 1: It just looks to me like a really hard one
Speaker 1: to settle. If I had to guess, and this is
Speaker 1: just a guess, I think it's going to go to
Speaker 1: a trial. Why do you think it's hard to settle?
Speaker 1: Just explain that, because I think that the plaintiff may
Speaker 1: have little incentive to do that, and Fox itself may
Speaker 1: be hoping to be able to contain some of this
Speaker 1: on appeal. Keep in mind that if a plantiff gets
Speaker 1: to a trial in a libel case, often the plantiff
Speaker 1: can prevail, but typically on appeal a lot of it
Speaker 1: gets really carved back and cut back. So I think
Speaker 1: Fox's biggest incentive is that it doesn't want to have
Speaker 1: a trial with all of these witnesses being hauled in
Speaker 1: to court and questioned in a public way. I mean,
Speaker 1: right now, all these things are just on paper, but
Speaker 1: when they have to testify in court and have Earlson,
Speaker 1: that Murdoch and you name it all in there, bad
Speaker 1: R goes right against what they seem mostly preoccupied with
Speaker 1: about appearing to be doubtful about what their viewers believe truth.
Speaker 1: It's going to be a fascinating trial, Thanks so much.
Speaker 1: That's defamation law expert David Korsnick. Coming up next is
Speaker 1: Obamacare headed to the Supreme Court for a ninth time.
Speaker 1: This is Bloomberg