1 00:00:01,720 --> 00:00:05,880 Speaker 1: Welcome to Crash Course, a podcast about business, political, and 2 00:00:06,000 --> 00:00:09,800 Speaker 1: social disruption and what we can learn from it. I'm 3 00:00:09,840 --> 00:00:16,280 Speaker 1: Tim O'Brien. Today's Crash Course, Trump versus the Law. Manhattan 4 00:00:16,360 --> 00:00:20,160 Speaker 1: District Attorney Alvin Bragg recently charged former President Donald Trump 5 00:00:20,440 --> 00:00:24,680 Speaker 1: with crimes related to multiple acts of fraudulent bookkeeping, and 6 00:00:25,200 --> 00:00:28,600 Speaker 1: because it involves Trump, of course, the charges pertain to 7 00:00:28,680 --> 00:00:31,600 Speaker 1: hush money payments Trump paid to a porn star to 8 00:00:31,680 --> 00:00:36,159 Speaker 1: cover up a sexual tryst. Bragg's case sparked vigorous debates 9 00:00:36,159 --> 00:00:39,639 Speaker 1: about when presidents are and aren't fair game for law 10 00:00:39,760 --> 00:00:43,720 Speaker 1: enforcement officials. I happen to believe that no one, including 11 00:00:43,720 --> 00:00:46,800 Speaker 1: the president, is above the law, but there are good 12 00:00:46,800 --> 00:00:51,400 Speaker 1: and diverse perspectives on all sides of this issue. To 13 00:00:51,440 --> 00:00:53,680 Speaker 1: help me examine Trump's collision with the rule of law 14 00:00:54,240 --> 00:00:58,000 Speaker 1: and the tar pit of legal cases and investigations engulfing 15 00:00:58,000 --> 00:01:02,200 Speaker 1: the former president in New York, Georgia, Washington, and elsewhere, 16 00:01:02,680 --> 00:01:06,399 Speaker 1: I invited Noah Feldman to our podcast. Noah is a 17 00:01:06,400 --> 00:01:10,560 Speaker 1: Harvard law professor, a Bluebrig opinion columnist, and a wildly 18 00:01:10,600 --> 00:01:15,840 Speaker 1: grateful writer and thinker. Welcome Noah, good morning. So you 19 00:01:15,920 --> 00:01:19,479 Speaker 1: recently wrote a column for Bluebrig Opinion, taking the Manhattan 20 00:01:19,520 --> 00:01:24,360 Speaker 1: District Attorney Alvin Bragg to task for bringing a case 21 00:01:24,440 --> 00:01:28,080 Speaker 1: against Donald Trump, a fraud case against him, not so 22 00:01:28,200 --> 00:01:30,840 Speaker 1: much in terms of the bona fides of the case, 23 00:01:31,440 --> 00:01:34,080 Speaker 1: but the timing of the case. And I wanted you 24 00:01:34,120 --> 00:01:37,160 Speaker 1: to talk to me a little bit about that. Donald Trump, 25 00:01:37,240 --> 00:01:39,520 Speaker 1: as both of us have good reason to know, and 26 00:01:39,560 --> 00:01:44,040 Speaker 1: as I suspect listeners know too, fundamentally challenged the legitimacy 27 00:01:44,080 --> 00:01:47,840 Speaker 1: of our democracy. And there are potential criminal charges against 28 00:01:47,920 --> 00:01:51,640 Speaker 1: him for that. That could come either from the Department 29 00:01:51,640 --> 00:01:55,320 Speaker 1: of Justice, through the special prosecutor there focusing on the 30 00:01:55,400 --> 00:01:58,800 Speaker 1: January six events and time around that, or from Georgia 31 00:01:58,840 --> 00:02:03,680 Speaker 1: prosecutors who have a tape that many of us have 32 00:02:03,760 --> 00:02:07,240 Speaker 1: heard that shows Trump trying to break the outcome of 33 00:02:07,240 --> 00:02:10,280 Speaker 1: the election in Georgia and asking the governor and the 34 00:02:10,320 --> 00:02:13,120 Speaker 1: Secretary of State to find him more votes. Now, those 35 00:02:13,160 --> 00:02:16,840 Speaker 1: are charges, criminal charges that go to the core of 36 00:02:16,880 --> 00:02:21,040 Speaker 1: what Trump did that was very bad. In contrast, this 37 00:02:21,160 --> 00:02:25,240 Speaker 1: charge essentially for creating a false business record by recording 38 00:02:25,360 --> 00:02:29,120 Speaker 1: hush money payments to store Mey Daniels as legal expenses 39 00:02:29,200 --> 00:02:33,040 Speaker 1: rather than as hush money payments is about something that 40 00:02:33,080 --> 00:02:35,919 Speaker 1: Trump did in the run up to his election that 41 00:02:36,000 --> 00:02:39,160 Speaker 1: we've known about for a long time, that if it 42 00:02:39,240 --> 00:02:42,520 Speaker 1: occurred as is alleged, is probably criminal. We can come 43 00:02:42,520 --> 00:02:45,680 Speaker 1: back to the probably but which does not go to 44 00:02:45,720 --> 00:02:48,640 Speaker 1: the core of the bad things that he's done. And 45 00:02:48,800 --> 00:02:52,320 Speaker 1: that creates a situation where Trump can say his familiar line, 46 00:02:52,320 --> 00:02:54,360 Speaker 1: look at the political witch hunt against me, and that 47 00:02:54,400 --> 00:02:57,000 Speaker 1: makes it harder for the other prosecutors. So it's because 48 00:02:57,040 --> 00:03:01,520 Speaker 1: I so much want to see Trump arged, especially by 49 00:03:01,760 --> 00:03:05,560 Speaker 1: the Department of Justice, for interfering with democracy, that I'm 50 00:03:05,600 --> 00:03:09,080 Speaker 1: concerned about the timing of this prosecution. So you know, 51 00:03:09,120 --> 00:03:11,919 Speaker 1: the thing I wonder about in this debate is there 52 00:03:12,040 --> 00:03:15,200 Speaker 1: is the legal theory of the law and the crystalline 53 00:03:15,240 --> 00:03:17,799 Speaker 1: palace that the law exists in, and then there's a 54 00:03:17,880 --> 00:03:20,359 Speaker 1: real world in which prosecutors have to apply the law. 55 00:03:20,760 --> 00:03:23,839 Speaker 1: And Alvin Bragg is his own operator. He is looking 56 00:03:23,840 --> 00:03:25,920 Speaker 1: at New York State laws, He's looking at the things 57 00:03:25,919 --> 00:03:29,079 Speaker 1: in front of him. He exists in office that was 58 00:03:29,200 --> 00:03:32,800 Speaker 1: already deeply divided about a previous case they thought they 59 00:03:32,880 --> 00:03:35,760 Speaker 1: might bring against Trump, and Bragg decided not to do it, 60 00:03:36,040 --> 00:03:40,160 Speaker 1: causing some people from his office to resign. Is he 61 00:03:40,320 --> 00:03:45,360 Speaker 1: meant to coordinate his actions with prosecutors in other jurisdictions, 62 00:03:45,920 --> 00:03:50,160 Speaker 1: or are you simply saying, wake up, look at the 63 00:03:50,200 --> 00:03:53,920 Speaker 1: world around you and think about your actions in that context. 64 00:03:54,680 --> 00:03:58,320 Speaker 1: All of the above. So, when there's somebody who's going 65 00:03:58,360 --> 00:04:02,040 Speaker 1: to be prosecuted for federal ends state crimes, it's common 66 00:04:02,080 --> 00:04:04,880 Speaker 1: practice for federal and state prosecutors to talk to each other. 67 00:04:04,920 --> 00:04:07,560 Speaker 1: There's nothing unethical about it. In fact, it's completely normal, 68 00:04:08,320 --> 00:04:10,760 Speaker 1: and they strategize and work together when they're trying to 69 00:04:10,760 --> 00:04:13,080 Speaker 1: put bad guys in jail, and so it would have 70 00:04:13,080 --> 00:04:17,520 Speaker 1: been perfectly appropriate to have timing conversations here. However, you 71 00:04:17,600 --> 00:04:20,160 Speaker 1: might say, given the sensitivity of prosecution of a president 72 00:04:20,200 --> 00:04:23,520 Speaker 1: and the worries about keeping a secret, maybe they didn't 73 00:04:23,520 --> 00:04:25,960 Speaker 1: want to coordinate. And if that's the case, if you're 74 00:04:26,080 --> 00:04:29,760 Speaker 1: Alvin Bragg, sit back and let them more serious cases 75 00:04:29,800 --> 00:04:32,560 Speaker 1: against Trump proceed and then bring your charges, because you 76 00:04:32,600 --> 00:04:35,160 Speaker 1: have discretion to bring them whenever you want, provided your 77 00:04:35,160 --> 00:04:38,320 Speaker 1: inside of the statute of limitations. So either way would 78 00:04:38,320 --> 00:04:40,120 Speaker 1: have been fine, And I would just add tim you 79 00:04:40,160 --> 00:04:43,279 Speaker 1: alluded to the fact that prosecutors had other charges they 80 00:04:43,320 --> 00:04:46,320 Speaker 1: wanted to bring against Trump. Those were stronger charges on 81 00:04:46,400 --> 00:04:49,919 Speaker 1: legal grounds. Those were charges against Trump for falsifying his 82 00:04:50,000 --> 00:04:52,600 Speaker 1: assets in loan applications, which were what you would call 83 00:04:52,640 --> 00:04:56,480 Speaker 1: straightforward felonies and possibly decades of misleading banks to get 84 00:04:56,560 --> 00:05:01,159 Speaker 1: loans from them under false pretenses exactly. And that is 85 00:05:01,200 --> 00:05:05,320 Speaker 1: an easily provable felony on the numbers in front of 86 00:05:05,320 --> 00:05:09,320 Speaker 1: a jury. In contrast, this charge a will be hard 87 00:05:09,360 --> 00:05:11,679 Speaker 1: to get a jury of twelve to agree to, because 88 00:05:11,800 --> 00:05:15,039 Speaker 1: Trump can defend himself by saying, sure, I falsified the record, 89 00:05:15,080 --> 00:05:17,160 Speaker 1: but I did it because I was worried about personal embarrassment. 90 00:05:17,160 --> 00:05:18,760 Speaker 1: And all takes this one juror to believe that to 91 00:05:18,800 --> 00:05:21,960 Speaker 1: get a mistrial. But also it's vulnerable on appeal in 92 00:05:21,960 --> 00:05:24,719 Speaker 1: a way that the other charge wouldn't have been. This 93 00:05:24,800 --> 00:05:27,120 Speaker 1: is interesting that you are more of an advocate for 94 00:05:27,160 --> 00:05:29,760 Speaker 1: that prior case than the current one that the Manhattan 95 00:05:29,800 --> 00:05:32,120 Speaker 1: DA was looking at, because I was skeptical of the 96 00:05:32,160 --> 00:05:35,279 Speaker 1: first case as well, simply because everything I heard coming 97 00:05:35,279 --> 00:05:38,720 Speaker 1: out of that office was that they were basing Trump's 98 00:05:38,880 --> 00:05:43,640 Speaker 1: ability to hoodwink sophisticated lenders like banks, was that he 99 00:05:43,680 --> 00:05:48,159 Speaker 1: was using these ginned up statements of financial condition as 100 00:05:48,200 --> 00:05:51,320 Speaker 1: the groundwork for getting loans, and Trump produced those things 101 00:05:51,320 --> 00:05:53,800 Speaker 1: about as often as you and I produced birthday cards, 102 00:05:54,000 --> 00:05:57,760 Speaker 1: and they weren't audited. I don't think any bank really 103 00:05:57,800 --> 00:06:00,240 Speaker 1: relied on them, and so I think there would an 104 00:06:00,279 --> 00:06:05,760 Speaker 1: evidentiary problem. I'm going to court claiming that sophisticated lenders 105 00:06:05,760 --> 00:06:09,440 Speaker 1: were actually duped by a guy giving them unvetted documents. 106 00:06:09,839 --> 00:06:12,120 Speaker 1: And I do think that that was ultimately one of 107 00:06:12,160 --> 00:06:16,080 Speaker 1: the fractious issues that split the office apart. I had 108 00:06:16,080 --> 00:06:18,200 Speaker 1: thought they were wise not to rush that one to court. 109 00:06:18,920 --> 00:06:22,040 Speaker 1: What hangs me up on the current issue is again 110 00:06:22,800 --> 00:06:27,200 Speaker 1: the idea of being an independent operator as a prosecutor 111 00:06:27,560 --> 00:06:30,279 Speaker 1: and coordinating with other jurisdictions. And I know you already 112 00:06:30,279 --> 00:06:34,320 Speaker 1: addressed this, but you know famous examples are in a 113 00:06:34,400 --> 00:06:37,400 Speaker 1: local jurisdiction where you have a criminal probe and a 114 00:06:37,440 --> 00:06:40,520 Speaker 1: civil probe, say the SEC is looking at civil charges 115 00:06:40,560 --> 00:06:43,160 Speaker 1: and the US Attorney's Office is looking at criminal charges. 116 00:06:43,400 --> 00:06:46,359 Speaker 1: The SEC will step aside because the criminal charges have 117 00:06:46,440 --> 00:06:49,320 Speaker 1: greater weight and therefore are seen as being more important. 118 00:06:49,839 --> 00:06:52,240 Speaker 1: I don't understand at all how this works. When Alvin 119 00:06:52,240 --> 00:06:54,520 Speaker 1: Bragg in New York has to think about Fannie Willis 120 00:06:54,520 --> 00:06:58,080 Speaker 1: and Georgia, who has to think about Latitia James and 121 00:06:58,200 --> 00:07:01,279 Speaker 1: Upstate New York, who has to think about a special 122 00:07:01,320 --> 00:07:05,320 Speaker 1: counsel in Washington working for an attorney general who actually 123 00:07:05,360 --> 00:07:08,320 Speaker 1: hasn't filed any charges yet, Like, how do you navigate 124 00:07:08,360 --> 00:07:11,400 Speaker 1: that star system? I'm tempted to say this is why 125 00:07:11,400 --> 00:07:15,120 Speaker 1: the Good Lord invented the conference call. It's a little flippant, 126 00:07:15,120 --> 00:07:18,120 Speaker 1: but in any case where you have multiple jurisdictions overlapping, 127 00:07:18,440 --> 00:07:20,400 Speaker 1: the ordinary thing to do, and again this is not 128 00:07:20,400 --> 00:07:22,440 Speaker 1: an ordinary case, but an ordinary thing to do would 129 00:07:22,440 --> 00:07:25,400 Speaker 1: be to have everybody at the table literally or metaphorically 130 00:07:25,840 --> 00:07:28,920 Speaker 1: and weigh out different priorities. And is it a bit 131 00:07:28,920 --> 00:07:32,360 Speaker 1: of a game where nobody works for the same boss. Yes, 132 00:07:32,600 --> 00:07:34,080 Speaker 1: it is a bit of a game. There's a little 133 00:07:34,120 --> 00:07:38,120 Speaker 1: bit of a negotiating component where everybody could threaten to 134 00:07:38,120 --> 00:07:41,200 Speaker 1: go earlier or offer to go later, and that does happen. 135 00:07:42,000 --> 00:07:45,880 Speaker 1: But ordinarily it's worked out collaboratively because all of the 136 00:07:45,880 --> 00:07:49,080 Speaker 1: prosecutors typically have the overlapping interest of seeing the person 137 00:07:49,160 --> 00:07:52,040 Speaker 1: convicted of the charges that they want to bring, and 138 00:07:52,080 --> 00:07:54,560 Speaker 1: they have reason to order the process in order to 139 00:07:54,560 --> 00:07:57,520 Speaker 1: make that happen. So that could have happened here, and 140 00:07:57,560 --> 00:08:01,160 Speaker 1: again the only argument against that would be confidentiality concerns. Now, 141 00:08:01,200 --> 00:08:04,640 Speaker 1: the hardest part here is that because the DOJ has 142 00:08:04,680 --> 00:08:07,960 Speaker 1: a whole process for deciding to bring charges, you probably 143 00:08:08,000 --> 00:08:11,560 Speaker 1: couldn't have that conversation with Marek Garland, the Attorney General, 144 00:08:12,160 --> 00:08:14,960 Speaker 1: because the special Prosecutor, Jack Smith is right now in 145 00:08:15,040 --> 00:08:17,800 Speaker 1: charge of the case. But the ultimate charging decision would 146 00:08:17,800 --> 00:08:19,880 Speaker 1: still be made by Garland, so that might make it 147 00:08:19,920 --> 00:08:22,760 Speaker 1: a little bit trickier. Another tricky element is that Merrick 148 00:08:22,840 --> 00:08:26,720 Speaker 1: Garland appears to have the metabolism of molasses. And I 149 00:08:26,800 --> 00:08:30,840 Speaker 1: say that as an impatient journalist, not a objective academic 150 00:08:30,960 --> 00:08:33,920 Speaker 1: such as yourself. And I know that Garland is trying 151 00:08:34,320 --> 00:08:37,320 Speaker 1: in a very admirable way to pin down the evidence, 152 00:08:37,400 --> 00:08:39,360 Speaker 1: pin down the fact pattern, and if he's going to 153 00:08:39,440 --> 00:08:42,160 Speaker 1: go with something, make sure it's air tight. But if 154 00:08:42,200 --> 00:08:44,680 Speaker 1: your Bragg sitting in New York, how do you have 155 00:08:44,720 --> 00:08:48,760 Speaker 1: any faith that actually that federal prosecution is going to occur? 156 00:08:49,160 --> 00:08:53,360 Speaker 1: And why do you put your measly little local prosecution aside? 157 00:08:54,040 --> 00:08:57,920 Speaker 1: If Hamlet is sitting in the Justice Department in the 158 00:08:57,960 --> 00:09:00,520 Speaker 1: first instance, I'm glad you acknowledged what I think is true, 159 00:09:00,520 --> 00:09:02,320 Speaker 1: which is that the Attorney general has a really hard 160 00:09:02,400 --> 00:09:05,679 Speaker 1: job here. His whole goal, the reason he left the 161 00:09:05,720 --> 00:09:08,120 Speaker 1: Court of Appeals to become Attorney General, was to deep 162 00:09:08,160 --> 00:09:10,960 Speaker 1: politicize the FBI and the Department of Justice when it 163 00:09:10,960 --> 00:09:14,000 Speaker 1: comes to prosecuting decisions. And here you have what inherently 164 00:09:14,000 --> 00:09:16,920 Speaker 1: would be the most political prosecuting decision in US history, 165 00:09:16,960 --> 00:09:19,600 Speaker 1: a decision by the current administration to prosecute the guy 166 00:09:19,600 --> 00:09:21,880 Speaker 1: they beat running for office who's now running against them. 167 00:09:22,480 --> 00:09:24,080 Speaker 1: So you really want to get all your ducks in 168 00:09:24,080 --> 00:09:25,360 Speaker 1: a row before you do that, and you want to 169 00:09:25,360 --> 00:09:29,000 Speaker 1: be thoughtful and wise around that. From Alvin Bragg's perspective, 170 00:09:29,040 --> 00:09:31,160 Speaker 1: you're right that he can't say with any confidence that 171 00:09:31,160 --> 00:09:33,040 Speaker 1: those charges will be brought because they won't tell him 172 00:09:33,040 --> 00:09:35,280 Speaker 1: with any certainty whether those charges are going to be brought, 173 00:09:35,320 --> 00:09:37,480 Speaker 1: even if they already know, which it's entirely possible that 174 00:09:37,520 --> 00:09:40,240 Speaker 1: they don't. But he wouldn't have had to put aside 175 00:09:40,240 --> 00:09:43,440 Speaker 1: his prosecution indefinitely. He would just have had to sit 176 00:09:43,520 --> 00:09:45,800 Speaker 1: on it until we got some sense of what the 177 00:09:45,920 --> 00:09:48,840 Speaker 1: DOJ was going to do, which we certainly will have 178 00:09:49,559 --> 00:09:52,880 Speaker 1: before the presidential election season really heats up. Because It's 179 00:09:52,880 --> 00:09:55,559 Speaker 1: certainly the case that the Department of Justice is not 180 00:09:55,640 --> 00:09:58,880 Speaker 1: going to bring criminal charges against Donald Trump in the 181 00:09:58,920 --> 00:10:02,240 Speaker 1: middle of a hot primary season because that would simply 182 00:10:02,280 --> 00:10:05,520 Speaker 1: look too political. So for that time and the calendar comes, 183 00:10:05,840 --> 00:10:08,160 Speaker 1: Bragg could have known whether to go forward or not, 184 00:10:08,200 --> 00:10:10,160 Speaker 1: and he could have done it at that point. And 185 00:10:10,280 --> 00:10:13,600 Speaker 1: of course there's a larger I think reality of if 186 00:10:13,600 --> 00:10:17,320 Speaker 1: Bragg secures a criminal conviction here, which is still an if. 187 00:10:18,040 --> 00:10:21,440 Speaker 1: Convincing a jury might be hard, and making these charges 188 00:10:21,480 --> 00:10:25,160 Speaker 1: stick therefore might be hard. The idea that this is 189 00:10:25,160 --> 00:10:27,319 Speaker 1: going to land Donald Trump in an orange chump suit, 190 00:10:27,360 --> 00:10:29,600 Speaker 1: I still think is a stretch. And so for people 191 00:10:30,040 --> 00:10:33,360 Speaker 1: wanting one Trump to be held accountable for his most 192 00:10:33,800 --> 00:10:38,160 Speaker 1: heinous violations of the laws, this doesn't meet that standard. 193 00:10:38,720 --> 00:10:41,200 Speaker 1: And for people who are invested in the idea that 194 00:10:41,240 --> 00:10:43,720 Speaker 1: somehow he'll be brought to rough justice, it may not 195 00:10:44,160 --> 00:10:48,160 Speaker 1: end up there either, right, it absolutely may not, And 196 00:10:48,960 --> 00:10:52,079 Speaker 1: that leads to a number of scenarios that are actually 197 00:10:52,200 --> 00:10:57,040 Speaker 1: pretty worrisome. One is a criminal trial taking place sometime 198 00:10:57,600 --> 00:11:02,200 Speaker 1: between say January and May of twenty four, while the 199 00:11:02,360 --> 00:11:07,280 Speaker 1: primary season is going strong, and although Donald Trump might 200 00:11:07,320 --> 00:11:11,240 Speaker 1: ask the prosecutors to delay even past that time on 201 00:11:11,280 --> 00:11:15,040 Speaker 1: the theory that it messes with our democracy. It's unlikely 202 00:11:15,080 --> 00:11:18,839 Speaker 1: if the prosecutors would delay it indefinitely for him, And 203 00:11:18,920 --> 00:11:22,640 Speaker 1: so then you would have this bizarre scenario of a 204 00:11:22,679 --> 00:11:26,280 Speaker 1: county prosecutor bringing criminal charges against a candidate for the 205 00:11:26,320 --> 00:11:30,679 Speaker 1: presidency and possibly a successful candidate for the presidency exactly. 206 00:11:30,679 --> 00:11:32,640 Speaker 1: So that's the next question. What if he's the nominee 207 00:11:32,960 --> 00:11:35,680 Speaker 1: and now he's arnted going criminal charges. What if he's 208 00:11:35,679 --> 00:11:38,480 Speaker 1: been elected president. What if he's president elect heaven forbid, 209 00:11:38,960 --> 00:11:42,240 Speaker 1: and is undergoing criminal charges. What if he's already president 210 00:11:42,280 --> 00:11:44,600 Speaker 1: and the criminal charges are going forward. And in all 211 00:11:44,640 --> 00:11:47,280 Speaker 1: of these scenarios, Trump would go for the New York 212 00:11:47,280 --> 00:11:49,640 Speaker 1: courts and then the federal courts and he would say 213 00:11:49,640 --> 00:11:54,080 Speaker 1: to them, hey, stop this Shenanigan right now, put a 214 00:11:54,160 --> 00:11:57,640 Speaker 1: pause on this until after I've served my term as president. 215 00:11:57,920 --> 00:11:59,920 Speaker 1: And that also puts the Supreme Court of the Units. 216 00:12:00,120 --> 00:12:02,720 Speaker 1: It's in a very difficult position because if they say 217 00:12:02,720 --> 00:12:05,000 Speaker 1: to Trump, no one is above the law, then he 218 00:12:05,040 --> 00:12:09,600 Speaker 1: could actually be fighting a criminal charge or imprisoned, however 219 00:12:09,640 --> 00:12:12,640 Speaker 1: briefly while serving as president to the United States. And 220 00:12:12,679 --> 00:12:14,800 Speaker 1: so that's absurd. I mean, the president United States can't 221 00:12:14,880 --> 00:12:18,560 Speaker 1: run our national security apparatus out of rikers, so that's 222 00:12:18,600 --> 00:12:20,600 Speaker 1: not a plausible option. But on the other hand, if 223 00:12:20,600 --> 00:12:24,040 Speaker 1: the court says, sure, will delay this, then you can 224 00:12:24,080 --> 00:12:28,080 Speaker 1: imagine a president whose entire term in office is under 225 00:12:28,080 --> 00:12:31,079 Speaker 1: the shadow of a potential conviction or who has actually 226 00:12:31,080 --> 00:12:34,000 Speaker 1: been convicted of a crime, and so talk about a 227 00:12:34,080 --> 00:12:36,240 Speaker 1: violation of the deep principles or the rule of law there. 228 00:12:36,360 --> 00:12:39,400 Speaker 1: So there's no good outcome in that scenario. And that's 229 00:12:39,400 --> 00:12:41,840 Speaker 1: another thing that I'm a bit concerned about here. And 230 00:12:42,040 --> 00:12:44,679 Speaker 1: just to say, of course, that could all happen if 231 00:12:44,679 --> 00:12:47,400 Speaker 1: the DOJ charges were brought, or it could happen under 232 00:12:47,440 --> 00:12:49,280 Speaker 1: the Georgia charges, But I think those are a little 233 00:12:49,280 --> 00:12:52,200 Speaker 1: bit different because in those cases, those would be literally 234 00:12:52,280 --> 00:12:55,520 Speaker 1: charges for trying to break the democratic election system, and 235 00:12:55,600 --> 00:12:57,880 Speaker 1: those might be the only set of conditions where it's 236 00:12:57,920 --> 00:13:01,120 Speaker 1: reasonable to charge someone like Donald Trump, who has been 237 00:13:01,160 --> 00:13:03,959 Speaker 1: president is now running for president. So we're going to 238 00:13:04,040 --> 00:13:06,960 Speaker 1: explore those other cases in a bit in a little 239 00:13:07,000 --> 00:13:09,120 Speaker 1: more depth. But I want to roll you back on 240 00:13:09,160 --> 00:13:12,400 Speaker 1: the scenario of him running for president from jail and 241 00:13:12,480 --> 00:13:15,880 Speaker 1: he complains of the courts that he's being unfairly impaired. Well, 242 00:13:15,880 --> 00:13:19,280 Speaker 1: the court says, well, Eugene Debs ran for president from 243 00:13:19,360 --> 00:13:23,800 Speaker 1: jail in the nineteen twenties, and Lyndon LaRouche got convicted 244 00:13:23,840 --> 00:13:26,960 Speaker 1: five times, I think, on tax fraud, and that didn't 245 00:13:26,960 --> 00:13:30,200 Speaker 1: stop him from running for president. So there's president for 246 00:13:30,320 --> 00:13:33,839 Speaker 1: people doing this. Stop whining, put on your big boy 247 00:13:33,880 --> 00:13:37,000 Speaker 1: boots and get out there and campaign sir. Of course, 248 00:13:37,280 --> 00:13:41,480 Speaker 1: the courts could reach that conclusion. One difference between Trump 249 00:13:41,520 --> 00:13:45,360 Speaker 1: and the Debs case is that Debs was in federal prison, 250 00:13:46,120 --> 00:13:47,960 Speaker 1: by the way, under a law that today we would 251 00:13:47,960 --> 00:13:51,720 Speaker 1: consider blatantly unconstitutional. That basically he was literally imprisoned for 252 00:13:51,760 --> 00:13:54,080 Speaker 1: giving a speech where he said, I support the people 253 00:13:54,120 --> 00:13:55,920 Speaker 1: who are refusing to serve in the First World War 254 00:13:55,920 --> 00:13:58,680 Speaker 1: because it's immoral. But in any events, we're imprisoning you 255 00:13:58,760 --> 00:14:01,640 Speaker 1: for exercising your first rights. Yeah. Literally, it was at 256 00:14:01,679 --> 00:14:03,559 Speaker 1: a time when our first memory rights were very, very 257 00:14:03,559 --> 00:14:06,319 Speaker 1: far from to find. But in any event, that was 258 00:14:06,360 --> 00:14:09,559 Speaker 1: a federal charge, and at least you can say there 259 00:14:09,600 --> 00:14:11,360 Speaker 1: that the US government had to decide to bring their 260 00:14:11,440 --> 00:14:17,160 Speaker 1: charge against him. There are some high four thousands numbers 261 00:14:17,200 --> 00:14:20,720 Speaker 1: of district attorneys in the United States, and any of 262 00:14:20,760 --> 00:14:23,400 Speaker 1: them can bring a charge, and any local jury can convict, 263 00:14:24,040 --> 00:14:26,640 Speaker 1: and Trump would have a credible argument to be made 264 00:14:26,880 --> 00:14:29,240 Speaker 1: that the idea that not only one state, but one 265 00:14:29,320 --> 00:14:33,080 Speaker 1: county in one state could impair a presidential candidate to 266 00:14:33,120 --> 00:14:36,240 Speaker 1: that degree is a little bit worrisome. And you know, 267 00:14:36,400 --> 00:14:38,920 Speaker 1: for those who hear this and think, as I would 268 00:14:38,960 --> 00:14:41,720 Speaker 1: instinctively think, but Trump is special. Trump is special. The 269 00:14:41,760 --> 00:14:43,920 Speaker 1: issue isn't whether Trump is special. The issue is whether 270 00:14:43,960 --> 00:14:47,960 Speaker 1: there is somewhere in the United States an irresponsible prosecutor 271 00:14:48,000 --> 00:14:51,000 Speaker 1: in a backwater place who will say, you know what, 272 00:14:51,120 --> 00:14:52,960 Speaker 1: Joe Biden is looking a little like he's riding a 273 00:14:52,960 --> 00:14:56,800 Speaker 1: little high. I'm indicting him on some charge that has 274 00:14:56,920 --> 00:14:59,200 Speaker 1: enough way to it to get to a jury, and 275 00:14:59,240 --> 00:15:00,880 Speaker 1: then the appeal courts say, well, we're not going to 276 00:15:00,960 --> 00:15:02,920 Speaker 1: throw this case out until you try it to the jury. 277 00:15:03,520 --> 00:15:06,440 Speaker 1: And so there is a real danger that giving that 278 00:15:06,600 --> 00:15:09,360 Speaker 1: much power to district attorneys all over the country could 279 00:15:09,440 --> 00:15:12,160 Speaker 1: undermine our political system more broadly. And that's something I 280 00:15:12,160 --> 00:15:14,040 Speaker 1: think we genuinely have to be concerned about in a 281 00:15:14,080 --> 00:15:18,440 Speaker 1: world where political polarization goes down to every level of government, 282 00:15:18,440 --> 00:15:21,520 Speaker 1: and it certainly goes down to local district attorneys, and 283 00:15:21,600 --> 00:15:24,360 Speaker 1: where the idea that crime or criminal charges are a 284 00:15:24,440 --> 00:15:27,800 Speaker 1: tool in the political process is now in the air well. 285 00:15:27,840 --> 00:15:30,480 Speaker 1: And this is one of the conundrums of Trump as president, 286 00:15:30,680 --> 00:15:36,840 Speaker 1: is that we have some fairly sophisticated and honorable reasons 287 00:15:36,840 --> 00:15:40,760 Speaker 1: why we give the presidency certain protections, and we give 288 00:15:40,760 --> 00:15:44,320 Speaker 1: the occupant of the Oval office certain protections both from 289 00:15:44,320 --> 00:15:49,240 Speaker 1: the law and from conflict of interest policies. Unfortunately, probably 290 00:15:49,280 --> 00:15:51,680 Speaker 1: the framers and everyone who wrote a law up until 291 00:15:51,760 --> 00:15:56,600 Speaker 1: say twenty sixteen never envisioned someone like Donald Trump inhabiting 292 00:15:56,600 --> 00:16:01,560 Speaker 1: the office and using those protections in such a damaging 293 00:16:01,880 --> 00:16:05,440 Speaker 1: and self serving way, ultimately in a way that is 294 00:16:05,480 --> 00:16:08,200 Speaker 1: allowing him, I think, to undermine some of the foundations 295 00:16:08,200 --> 00:16:11,600 Speaker 1: of the Constitution, or to attempt to do so. So, 296 00:16:11,680 --> 00:16:15,400 Speaker 1: where does the line stop, know, between observing the necessary 297 00:16:15,440 --> 00:16:19,200 Speaker 1: installations of the office and making sure that things don't 298 00:16:19,200 --> 00:16:21,560 Speaker 1: go haywire when Godzilla ends up in the White House. 299 00:16:22,080 --> 00:16:23,760 Speaker 1: You know, I basically agree one hundred percent with what 300 00:16:23,800 --> 00:16:25,680 Speaker 1: you just said to him about how Trump has at 301 00:16:25,720 --> 00:16:28,800 Speaker 1: every stage just blown up our norms. I mean, the 302 00:16:28,840 --> 00:16:30,360 Speaker 1: reason we don't worry most of the time about these 303 00:16:30,400 --> 00:16:34,040 Speaker 1: local district attorneys is they're not all insane, and most 304 00:16:34,120 --> 00:16:36,840 Speaker 1: presidential candidates aren't as susceptible to this kind of thing. 305 00:16:37,600 --> 00:16:40,760 Speaker 1: Where I would draw the line, though, is if the 306 00:16:40,880 --> 00:16:45,080 Speaker 1: charges are specific to a challenge to our democratic system, 307 00:16:45,520 --> 00:16:48,320 Speaker 1: because then the person bringing their charges has to balance 308 00:16:48,440 --> 00:16:51,920 Speaker 1: between two competing democratic interests, the democratic interest with a 309 00:16:51,920 --> 00:16:54,520 Speaker 1: small d in allowing the primaries to run, and the 310 00:16:54,560 --> 00:16:57,360 Speaker 1: small d democratic interest in making sure that we don't 311 00:16:57,400 --> 00:17:00,160 Speaker 1: elect someone who tries to break our constitutional system, and 312 00:17:00,240 --> 00:17:03,240 Speaker 1: who you're charging with doing exactly that to a jury. 313 00:17:03,840 --> 00:17:05,359 Speaker 1: I don't think it's an arbitrary line to draw. I 314 00:17:05,359 --> 00:17:07,160 Speaker 1: think it's a sensible line to draw to say those 315 00:17:07,240 --> 00:17:11,160 Speaker 1: charges I would bring, even if that means bring criminal 316 00:17:11,280 --> 00:17:14,359 Speaker 1: charges against a former president or a presidential candidate. But 317 00:17:14,440 --> 00:17:18,159 Speaker 1: I would be very nervous about bringing charges on a 318 00:17:18,320 --> 00:17:21,359 Speaker 1: claim like the one that was brought here, especially given 319 00:17:21,520 --> 00:17:25,760 Speaker 1: its potential legal risks associated with it. So, in other words, 320 00:17:26,000 --> 00:17:30,960 Speaker 1: it's fair game, regardless of the political consequences, to hold 321 00:17:31,000 --> 00:17:33,840 Speaker 1: a president or an ex president accountable under the law 322 00:17:34,280 --> 00:17:37,080 Speaker 1: if the issues you're holding him or her accountable for 323 00:17:37,280 --> 00:17:40,800 Speaker 1: pertains to the exercise of the powers of his or 324 00:17:40,840 --> 00:17:44,600 Speaker 1: her office exactly but if it's adjacent to that, or 325 00:17:44,640 --> 00:17:49,120 Speaker 1: even ancillary, then hands off for the time being. That's 326 00:17:49,160 --> 00:17:51,080 Speaker 1: exactly where I would draw the line. And if you 327 00:17:51,080 --> 00:17:53,879 Speaker 1: think about it, you know, January six is a unique 328 00:17:53,880 --> 00:17:58,040 Speaker 1: It's never happened before attempts to break the transition of power. 329 00:17:58,040 --> 00:17:59,480 Speaker 1: And I'm not talking about just the day itself, but 330 00:17:59,480 --> 00:18:02,800 Speaker 1: if Trump's conduct around it, and if you don't charge that, 331 00:18:03,359 --> 00:18:06,639 Speaker 1: then you're basically saying, to someone who's a potential you 332 00:18:06,800 --> 00:18:09,640 Speaker 1: would be dictator, go for it. The criminal justice system 333 00:18:09,680 --> 00:18:11,679 Speaker 1: won't touch you. And that can't be right either. This 334 00:18:11,720 --> 00:18:14,399 Speaker 1: feels like a good stopping point. So let's take a 335 00:18:14,440 --> 00:18:17,720 Speaker 1: break and when we return, will zoom in on Letitia 336 00:18:17,840 --> 00:18:25,480 Speaker 1: James's investigation in New York. So we're back with Noah Feldman, 337 00:18:25,960 --> 00:18:29,320 Speaker 1: the Harvard Law School legal guru, who's guiding me through 338 00:18:29,600 --> 00:18:31,960 Speaker 1: a deeper understanding of the court case as a raid 339 00:18:32,000 --> 00:18:37,320 Speaker 1: against former President Donald Trump. Let's go from New York 340 00:18:37,400 --> 00:18:40,959 Speaker 1: City to upstate New York, where the Attorney General of 341 00:18:41,040 --> 00:18:44,840 Speaker 1: the State of New York, Letitia James, is prosecuting Trump 342 00:18:44,840 --> 00:18:47,520 Speaker 1: for financial fraud as well. It's a civil case. I 343 00:18:47,560 --> 00:18:51,640 Speaker 1: think it's probably a much more elaborated case than Alvin Braggs. 344 00:18:51,640 --> 00:18:56,320 Speaker 1: She began it before Bragg did. She is actually traversing 345 00:18:56,359 --> 00:18:59,720 Speaker 1: some of the territory that Bragg's office initially investigated whether 346 00:18:59,800 --> 00:19:03,639 Speaker 1: or not Donald Trump lied to the tax authorities about 347 00:19:03,640 --> 00:19:05,600 Speaker 1: the value of his properties when he wanted to lower 348 00:19:05,640 --> 00:19:08,439 Speaker 1: his tax bills and then inflated the value of his 349 00:19:08,480 --> 00:19:11,840 Speaker 1: properties when he wanted loans from banks, and told whatever 350 00:19:11,920 --> 00:19:15,760 Speaker 1: story he needed to the relevant authorities. And she's looking 351 00:19:15,840 --> 00:19:18,439 Speaker 1: at a pattern of fraud across a number of deals 352 00:19:18,440 --> 00:19:21,440 Speaker 1: that he's done where that issue came into play, basically 353 00:19:21,480 --> 00:19:23,720 Speaker 1: cooking his books to get a loan when he needed 354 00:19:23,720 --> 00:19:25,560 Speaker 1: it or to lower his tax bill when he needed it. 355 00:19:26,359 --> 00:19:30,400 Speaker 1: None of that goes to his powers as president. I 356 00:19:30,440 --> 00:19:33,280 Speaker 1: think she was very injudicious in the run up to 357 00:19:33,320 --> 00:19:35,879 Speaker 1: filing charges. I think when she ran for attorney general, 358 00:19:35,960 --> 00:19:38,399 Speaker 1: she said that she wanted to hold Donald Trump accountable 359 00:19:38,400 --> 00:19:41,879 Speaker 1: for his crimes, so she had extra judiciary comments about 360 00:19:41,920 --> 00:19:46,240 Speaker 1: her intentions prior to filing charges. So in that context, 361 00:19:46,480 --> 00:19:48,679 Speaker 1: and given what you just laid out as the proper 362 00:19:48,760 --> 00:19:51,400 Speaker 1: venue for going after a president legally, would you say 363 00:19:51,400 --> 00:19:54,679 Speaker 1: that James case also should be put aside? Like you, 364 00:19:54,840 --> 00:19:58,560 Speaker 1: I have my reservations about the apparently political way in 365 00:19:58,640 --> 00:20:01,720 Speaker 1: which it was presented. But and it's a substantial but 366 00:20:02,520 --> 00:20:07,119 Speaker 1: it's a civil case, and we know from the Paula 367 00:20:07,200 --> 00:20:10,000 Speaker 1: Jones precedent that, at least according to the US Supreme Court, 368 00:20:10,240 --> 00:20:14,640 Speaker 1: as the law currently stands, even a sitting president can 369 00:20:14,640 --> 00:20:17,640 Speaker 1: be prosecuted civilly, can be brought to be a defendant 370 00:20:17,640 --> 00:20:21,000 Speaker 1: in a civil trial on a matter arising from conduct 371 00:20:21,080 --> 00:20:24,320 Speaker 1: before he became president. Now, it didn't go very well 372 00:20:24,359 --> 00:20:26,919 Speaker 1: in the Paula Jones case because it eventually led to, 373 00:20:27,600 --> 00:20:31,960 Speaker 1: by various complex means, an impeachment and the presidential lie 374 00:20:32,000 --> 00:20:34,280 Speaker 1: under oath. So a lot of people think the Supreme 375 00:20:34,320 --> 00:20:36,520 Speaker 1: Court got that wrong and they should have delayed that case. 376 00:20:37,080 --> 00:20:38,800 Speaker 1: But the president is still on the books, and it 377 00:20:38,880 --> 00:20:41,240 Speaker 1: stands very strongly for the idea that even the president 378 00:20:41,280 --> 00:20:44,040 Speaker 1: of the United States is subject to civil process and 379 00:20:44,119 --> 00:20:46,720 Speaker 1: can be sued and can't even get a delay for it. 380 00:20:47,200 --> 00:20:50,359 Speaker 1: So that reality gives sum support to the idea that 381 00:20:50,359 --> 00:20:53,040 Speaker 1: you can go forward with a civil case, because bottom line, 382 00:20:53,280 --> 00:20:55,439 Speaker 1: there's something really different about the idea you'd have to 383 00:20:55,480 --> 00:20:58,439 Speaker 1: pay money and the idea that you could go to prison. 384 00:20:58,760 --> 00:21:01,800 Speaker 1: And that's especially when the person is running for president 385 00:21:01,880 --> 00:21:04,919 Speaker 1: or would be president because of the obvious fact that 386 00:21:04,920 --> 00:21:07,920 Speaker 1: you can't do the presidency from within a prison cell. 387 00:21:08,320 --> 00:21:10,560 Speaker 1: So I've learned something else right now with you here. So, 388 00:21:10,720 --> 00:21:13,760 Speaker 1: in the New York State civil case that Attorney General 389 00:21:13,800 --> 00:21:18,600 Speaker 1: Letitia James is overseeing, a civil penalty would maybe result 390 00:21:18,600 --> 00:21:20,639 Speaker 1: in a massive fine for Trump and his company and 391 00:21:20,680 --> 00:21:23,080 Speaker 1: his children. It might even put them out of business 392 00:21:23,080 --> 00:21:25,440 Speaker 1: in the state of New York, but it wouldn't preclude 393 00:21:25,520 --> 00:21:28,920 Speaker 1: him for running for office. There for fair game, yeah, 394 00:21:29,000 --> 00:21:31,520 Speaker 1: I think so. It doesn't have the same degree of interference, 395 00:21:31,680 --> 00:21:35,199 Speaker 1: both at a practical level and also at the psychological 396 00:21:35,280 --> 00:21:37,800 Speaker 1: level of a defendant for whom, you know, paying money 397 00:21:37,800 --> 00:21:40,440 Speaker 1: wouldn't be good, but for whom going to prison is 398 00:21:40,440 --> 00:21:42,920 Speaker 1: a fundamental loss of your liberty. So I do think 399 00:21:42,920 --> 00:21:45,480 Speaker 1: that it is fair game. That said, you know, could 400 00:21:45,480 --> 00:21:47,920 Speaker 1: it have been presented in a different way, Yes, And 401 00:21:48,080 --> 00:21:51,240 Speaker 1: could an attorney general exercise discretion so as not to 402 00:21:51,240 --> 00:21:55,439 Speaker 1: set a precedent of prosecutors somewhere else going after the 403 00:21:55,520 --> 00:21:57,960 Speaker 1: bidens when they're running for office, Yes, that would have 404 00:21:57,960 --> 00:22:00,280 Speaker 1: been a reasonable exercise or prosecutorial discretion. But I don't 405 00:22:00,320 --> 00:22:02,240 Speaker 1: think it's off the table altogether in a civil case. 406 00:22:02,760 --> 00:22:06,000 Speaker 1: And by the way, Trump almost invites the sometimes given 407 00:22:06,040 --> 00:22:10,560 Speaker 1: how grotesque his behavior towards the judiciary is. You know, 408 00:22:10,680 --> 00:22:14,480 Speaker 1: he's invited anti Semitic tropes and talking about Bragg's investigation. 409 00:22:14,720 --> 00:22:17,920 Speaker 1: He's lied about Bragg's campaign being funded by George Soros. 410 00:22:18,440 --> 00:22:22,520 Speaker 1: He's called both the black prosecutors in New York State racists. 411 00:22:22,520 --> 00:22:25,840 Speaker 1: He's sort of invoked both racism and anti semitism, and 412 00:22:25,880 --> 00:22:29,399 Speaker 1: every turn in this and most recently after he was arraigned, 413 00:22:29,600 --> 00:22:33,320 Speaker 1: he and his children launched failed sort of threats against 414 00:22:33,359 --> 00:22:35,480 Speaker 1: the judge hearing the case in New York, as well 415 00:22:35,520 --> 00:22:39,080 Speaker 1: as his wife and daughter. This is another moment in 416 00:22:39,160 --> 00:22:43,800 Speaker 1: which Trump is challenging civic norms, and one it challenges 417 00:22:43,840 --> 00:22:47,119 Speaker 1: the rest of us, including law enforcement officials, to respond 418 00:22:47,160 --> 00:22:50,640 Speaker 1: in a civil fashion, even if he's not doing so himself. 419 00:22:51,280 --> 00:22:54,000 Speaker 1: But it does reveal I think another kind of strain 420 00:22:54,160 --> 00:22:57,280 Speaker 1: or stress that's being placed on the rule of law 421 00:22:57,520 --> 00:23:01,359 Speaker 1: and law enforcement is this extra judice, additional attacks Trump 422 00:23:01,480 --> 00:23:04,719 Speaker 1: is constantly making on the institutions and the people who 423 00:23:04,800 --> 00:23:07,359 Speaker 1: inhabit them. I mean, I agree with everything you just said. 424 00:23:07,480 --> 00:23:12,320 Speaker 1: It's deeply disturbing and distressing to see his attempts to 425 00:23:12,359 --> 00:23:15,480 Speaker 1: subvert the judiciary, and it puts the judges in a 426 00:23:15,600 --> 00:23:18,000 Speaker 1: very difficult situation. You know. On the one hand, they 427 00:23:18,080 --> 00:23:21,240 Speaker 1: must be tempted to say, well, we're going to double 428 00:23:21,280 --> 00:23:24,160 Speaker 1: down and being tough on you. On the other hand, 429 00:23:24,240 --> 00:23:26,480 Speaker 1: they want to bend over backwards to appear fair. And 430 00:23:26,520 --> 00:23:29,760 Speaker 1: there was some hint of this actually when Trump and 431 00:23:29,760 --> 00:23:32,720 Speaker 1: his lawyers were in court at the arrangement, insofar as 432 00:23:32,760 --> 00:23:36,800 Speaker 1: the trial judge urged, he didn't precisely order, but urged 433 00:23:36,840 --> 00:23:40,240 Speaker 1: Trump to cool it on social media with respects to 434 00:23:40,440 --> 00:23:43,399 Speaker 1: things like an image that Trump posted of himself with 435 00:23:43,440 --> 00:23:47,080 Speaker 1: a baseball bat, you know, menacing Alvin Bragg. And although 436 00:23:47,119 --> 00:23:49,439 Speaker 1: the judge didn't say so, of course, the implication is, 437 00:23:49,720 --> 00:23:53,440 Speaker 1: don't docks me, don't put me in the crossairs where 438 00:23:53,480 --> 00:23:56,560 Speaker 1: there could be legal consequences for you. And you know, 439 00:23:56,600 --> 00:23:59,040 Speaker 1: we know that Trump's emo always has been and always 440 00:23:59,080 --> 00:24:00,879 Speaker 1: will be to push the envelope as far as he 441 00:24:00,920 --> 00:24:03,639 Speaker 1: can push it. And you can see him taking action 442 00:24:03,720 --> 00:24:07,159 Speaker 1: that under other circumstances would get a normal person charged 443 00:24:07,200 --> 00:24:10,240 Speaker 1: with contempt in a judge's court by, for example, threatening 444 00:24:10,240 --> 00:24:12,280 Speaker 1: the judge so we'll see I mean, his lawyers will 445 00:24:12,320 --> 00:24:14,480 Speaker 1: be betting over backwards to tell him whatever you do, 446 00:24:14,480 --> 00:24:17,840 Speaker 1: don't do that, but you will, which you will routinely 447 00:24:17,880 --> 00:24:21,840 Speaker 1: ignore exactly. We've seen that many, many times. His lawyers 448 00:24:21,840 --> 00:24:24,280 Speaker 1: will also come up with great excuses for his behavior, 449 00:24:24,600 --> 00:24:27,920 Speaker 1: like post arraignment, his lawyer said Trump was only holding 450 00:24:27,960 --> 00:24:30,640 Speaker 1: the baseball bat up because he really wanted to show 451 00:24:30,640 --> 00:24:33,280 Speaker 1: that it was an American made bat. So he's his 452 00:24:33,400 --> 00:24:37,840 Speaker 1: pro industry. So let's the way I'm thinking of it 453 00:24:37,880 --> 00:24:40,880 Speaker 1: here is we're actually moving up a prosecutorial food chain 454 00:24:41,000 --> 00:24:44,159 Speaker 1: here in terms of the gravity of the consequences for 455 00:24:44,200 --> 00:24:46,560 Speaker 1: Trump and the issues that are being tested. So let's 456 00:24:46,560 --> 00:24:48,840 Speaker 1: go out of New York State and go to Georgia, 457 00:24:49,040 --> 00:24:51,960 Speaker 1: to Fulton County, where the Fulton County District Attorney Fani 458 00:24:52,040 --> 00:24:57,119 Speaker 1: Willis has launched a criminal fraud pro into electoral fraud, 459 00:24:57,800 --> 00:25:01,639 Speaker 1: investigating whether Trump tried to overturn the vote in Georgia 460 00:25:01,720 --> 00:25:04,439 Speaker 1: after the twenty twenty election, a vote he lost to 461 00:25:04,520 --> 00:25:07,679 Speaker 1: Joe Biden by over eleven thousand votes. There is a 462 00:25:07,720 --> 00:25:10,640 Speaker 1: smoking gun in that case. There's a recording of Trump 463 00:25:10,680 --> 00:25:13,600 Speaker 1: calling the Secretary of State and encouraging him to go 464 00:25:13,680 --> 00:25:18,840 Speaker 1: out and find Trump another eleven thousand plus votes so 465 00:25:18,920 --> 00:25:22,320 Speaker 1: he can win the election. So, look, all I want 466 00:25:22,359 --> 00:25:26,960 Speaker 1: to do is this. I just want to find eleven 467 00:25:27,000 --> 00:25:32,639 Speaker 1: thousand seven votes, which is one more that we have 468 00:25:33,840 --> 00:25:37,560 Speaker 1: because we won the Say, she's already convened a grand jury. 469 00:25:37,720 --> 00:25:40,840 Speaker 1: This looks like a perilous case for Trump, But I'd 470 00:25:40,840 --> 00:25:43,760 Speaker 1: really love to know your thoughts about the merits of 471 00:25:43,800 --> 00:25:47,080 Speaker 1: that particular action. Well, to start with what we know 472 00:25:47,160 --> 00:25:50,080 Speaker 1: and don't know. We know the grand jury wasn't just impaneled, 473 00:25:50,119 --> 00:25:54,160 Speaker 1: but issued indictments, and we don't exactly know whether Trump 474 00:25:54,280 --> 00:25:56,480 Speaker 1: was named. On the one hand, they haven't said so, 475 00:25:57,200 --> 00:26:00,280 Speaker 1: they haven't said it not. And when the four person 476 00:26:00,359 --> 00:26:02,320 Speaker 1: of the grand jury made her brief circuit of the 477 00:26:02,359 --> 00:26:05,000 Speaker 1: talk shows, she said things that were little opaque, like 478 00:26:05,160 --> 00:26:08,040 Speaker 1: you won't be surprised by what's in there, And you know, 479 00:26:08,119 --> 00:26:10,960 Speaker 1: that really depends on what she thinks of as being 480 00:26:10,960 --> 00:26:13,480 Speaker 1: surprised by. But let's assume for the sake of argument 481 00:26:13,520 --> 00:26:17,840 Speaker 1: that Trump is named in that indictment. If that's the case, 482 00:26:18,160 --> 00:26:22,080 Speaker 1: then basically the Fulton County District attorneys need to act 483 00:26:22,160 --> 00:26:27,440 Speaker 1: relatively soon so that they minimize any appearance of politicization 484 00:26:27,560 --> 00:26:29,480 Speaker 1: because the timing here is an issue. Right. They have 485 00:26:29,920 --> 00:26:32,959 Speaker 1: their document in hand, so if they're going to indict, 486 00:26:33,200 --> 00:26:36,159 Speaker 1: they should really do it in reasonably due course so 487 00:26:36,240 --> 00:26:39,800 Speaker 1: that Trump can defend himself against the charges. But I 488 00:26:39,840 --> 00:26:42,320 Speaker 1: think the good news is the trial would lead to 489 00:26:42,320 --> 00:26:46,480 Speaker 1: a genuine public conversation about what Trump was doing on 490 00:26:46,520 --> 00:26:50,119 Speaker 1: these phone calls, as he tried, in my opinion, to 491 00:26:50,440 --> 00:26:55,680 Speaker 1: bully elected officials to falsify election results, and a reminder 492 00:26:55,680 --> 00:26:59,440 Speaker 1: of that would be timely as Trump is setting up 493 00:26:59,480 --> 00:27:02,320 Speaker 1: to run for office again in Georgia and other places 494 00:27:02,359 --> 00:27:05,040 Speaker 1: like that, and from a political perspective, it would be 495 00:27:05,119 --> 00:27:09,159 Speaker 1: especially significant because if Trump is to be defeated by 496 00:27:09,160 --> 00:27:12,920 Speaker 1: another Republican candidate in any of these primaries, it will 497 00:27:12,960 --> 00:27:15,080 Speaker 1: have to be that that person gets some of the 498 00:27:15,200 --> 00:27:17,639 Speaker 1: votes or a lot of the votes of what you 499 00:27:17,720 --> 00:27:21,280 Speaker 1: might call conservative Republicans who think Donald Trump is a 500 00:27:21,320 --> 00:27:26,280 Speaker 1: clown and nevertheless would like to elect different conservative Republicans 501 00:27:26,280 --> 00:27:27,960 Speaker 1: because that's what most of the other candidates are going 502 00:27:28,000 --> 00:27:30,439 Speaker 1: to be, and those folks are the people who might 503 00:27:30,480 --> 00:27:33,400 Speaker 1: be most likely to be influenced by a reminder of 504 00:27:33,520 --> 00:27:37,520 Speaker 1: what Trump did. Two Republican elected officials in Georgia. Those 505 00:27:37,560 --> 00:27:41,480 Speaker 1: Republican elected officials resisted Trump and for the most part 506 00:27:41,840 --> 00:27:46,399 Speaker 1: managed to get reelected nevertheless. So that's an important message 507 00:27:46,400 --> 00:27:49,600 Speaker 1: in practical political terms and also in constitutional legal terms. 508 00:27:49,640 --> 00:27:51,600 Speaker 1: I think this is the time to be reminded of 509 00:27:51,600 --> 00:27:54,080 Speaker 1: that threat. So according to what I'll call for the 510 00:27:54,080 --> 00:27:58,360 Speaker 1: purposes of our podcast, the Feldman standard, the Georgia prosecution 511 00:27:58,840 --> 00:28:02,480 Speaker 1: is important and meets that hurdle of when you actually 512 00:28:02,800 --> 00:28:05,920 Speaker 1: do take legal action against a current or former president, 513 00:28:05,960 --> 00:28:10,399 Speaker 1: because it goes towards the fundamental exercises of the duties 514 00:28:10,400 --> 00:28:16,159 Speaker 1: of their office and or observations of democratic and constitutional norms. Exactly. 515 00:28:16,680 --> 00:28:18,600 Speaker 1: You know, what he's doing on those phone calls is 516 00:28:18,640 --> 00:28:21,240 Speaker 1: trying to break democracy, and that's something we need to 517 00:28:21,280 --> 00:28:23,000 Speaker 1: be reminded of and should be reminded of when the 518 00:28:23,000 --> 00:28:25,600 Speaker 1: guy's running for office again. So now we go to 519 00:28:25,640 --> 00:28:28,240 Speaker 1: the one that I find the most interesting, still, the 520 00:28:28,320 --> 00:28:33,159 Speaker 1: most mysterious, and possibly the most consequential investigation, and it 521 00:28:33,240 --> 00:28:35,520 Speaker 1: is not a prosecution yet, and that's at the Department 522 00:28:35,560 --> 00:28:39,160 Speaker 1: of Justice. The DOJ has had a long standing at 523 00:28:39,160 --> 00:28:45,360 Speaker 1: this point and sprawling examination and investigation and successful prosecution 524 00:28:46,000 --> 00:28:49,400 Speaker 1: of participants in the January sixth insurrection, the January six 525 00:28:49,480 --> 00:28:53,240 Speaker 1: two and twenty one insurrection at the US Capital, looking 526 00:28:53,280 --> 00:28:56,200 Speaker 1: into whether or not it was a orchestrated plot and 527 00:28:56,360 --> 00:28:59,120 Speaker 1: what laws were broken. This has started to get closer 528 00:28:59,120 --> 00:29:01,160 Speaker 1: and closer to Trump and some of his minions when 529 00:29:01,160 --> 00:29:05,880 Speaker 1: it touches on things like insurrection and intent to disrupt 530 00:29:05,960 --> 00:29:10,520 Speaker 1: an electoral process. In the course of that investigation, another 531 00:29:10,600 --> 00:29:14,600 Speaker 1: investigation emerged when it was discovered that Trump had classified 532 00:29:14,640 --> 00:29:18,040 Speaker 1: documents at Marlago that at a minimum hadn't been properly 533 00:29:18,080 --> 00:29:23,120 Speaker 1: accounted for, may have involved outright misappropriation, may have involved 534 00:29:23,160 --> 00:29:26,280 Speaker 1: instruction of justice. When it was discovered he still had 535 00:29:26,320 --> 00:29:30,320 Speaker 1: these documents and also could be consequential violations of the 536 00:29:30,480 --> 00:29:34,600 Speaker 1: Espionage Act and other laws governing how federal records should 537 00:29:34,640 --> 00:29:40,440 Speaker 1: be properly handled. When that second investigation emerged, Merrick Garland 538 00:29:40,560 --> 00:29:44,320 Speaker 1: appointed a special counsel to oversee both of them, Jack Smith, 539 00:29:44,520 --> 00:29:48,400 Speaker 1: veteran prosecutor, And that's sort of where we are right now. 540 00:29:48,440 --> 00:29:52,640 Speaker 1: We have a well regarded and capable special prosecutor under 541 00:29:52,680 --> 00:29:56,880 Speaker 1: the aegis of a well regarded and thoughtful Attorney general, 542 00:29:57,280 --> 00:30:00,520 Speaker 1: both of whom I think have longstanding reputations for upholding 543 00:30:00,520 --> 00:30:03,160 Speaker 1: the rule of law and the processes that surround it, 544 00:30:03,920 --> 00:30:06,960 Speaker 1: deciding whether or not they have enough evidence to charge 545 00:30:06,960 --> 00:30:09,960 Speaker 1: a former president, and if they do, what are the consequences. 546 00:30:10,400 --> 00:30:12,360 Speaker 1: So I have some other thoughts on that, but I'm 547 00:30:12,400 --> 00:30:15,400 Speaker 1: more interested in yours. Tell me how you're thinking about 548 00:30:15,440 --> 00:30:19,840 Speaker 1: the whole DOJ action right now. Well, let's start with 549 00:30:19,880 --> 00:30:25,200 Speaker 1: the second point. You mentioned the Trump withholding confidential secret 550 00:30:25,240 --> 00:30:29,120 Speaker 1: documents when he left office, that when we heard about 551 00:30:29,160 --> 00:30:31,959 Speaker 1: it seemed like great news from the standpoint of those 552 00:30:31,960 --> 00:30:34,880 Speaker 1: who had liked Is he Trump brought to justice insofar 553 00:30:34,920 --> 00:30:37,960 Speaker 1: as it's a pretty objective thing to prove, had the 554 00:30:38,040 --> 00:30:41,320 Speaker 1: documents asked for them, didn't give them back, and they've 555 00:30:41,360 --> 00:30:45,880 Speaker 1: got secret written all over them. What's unfortunately happened is 556 00:30:45,920 --> 00:30:49,400 Speaker 1: that because of what seems almost certainly to have been 557 00:30:49,800 --> 00:30:53,000 Speaker 1: carelessness on the part of Joe Biden, there are some 558 00:30:53,120 --> 00:30:56,640 Speaker 1: number of confidential documents or secret documents that also remained 559 00:30:56,800 --> 00:31:00,040 Speaker 1: in Biden's possession, and Biden and his lawyers were not 560 00:31:00,160 --> 00:31:03,720 Speaker 1: completely forthcoming about the timing of discovering those, Albeit it 561 00:31:03,760 --> 00:31:05,720 Speaker 1: wasn't the same situation where they had been requested and 562 00:31:05,720 --> 00:31:07,840 Speaker 1: they held them back. Which might matter for purposes of 563 00:31:07,880 --> 00:31:11,360 Speaker 1: a crime they did hold off on when they announced 564 00:31:11,440 --> 00:31:14,120 Speaker 1: the fact of that, and the timing looks like it 565 00:31:14,160 --> 00:31:17,000 Speaker 1: may have been connected to the midterm elections, and Biden 566 00:31:17,040 --> 00:31:21,240 Speaker 1: gave the unconvincing argument that it was safely secured next 567 00:31:21,240 --> 00:31:26,080 Speaker 1: tous Corvett in his garage. Truly laughable. So what basically 568 00:31:26,160 --> 00:31:28,600 Speaker 1: Joe Biden did in that situation is he rendered it 569 00:31:28,720 --> 00:31:33,120 Speaker 1: almost impossible for the prosecutor to lead against a prosecution 570 00:31:33,320 --> 00:31:37,640 Speaker 1: of Trump with the withholding of documents because of the 571 00:31:37,680 --> 00:31:40,840 Speaker 1: critique that will be made that says, you are the 572 00:31:40,880 --> 00:31:45,240 Speaker 1: Department of Justice, and you are ultimately answerable to the president, 573 00:31:45,480 --> 00:31:48,720 Speaker 1: and you're charging someone else with a crime that arguably 574 00:31:48,760 --> 00:31:50,960 Speaker 1: you committed, and you are notably not going to be 575 00:31:51,040 --> 00:31:53,480 Speaker 1: charged with it. I think. So that's one reason they 576 00:31:53,520 --> 00:31:59,120 Speaker 1: can't really go forward. Another issue is that many administrations 577 00:31:59,480 --> 00:32:02,880 Speaker 1: we now lies have this phenomenon. So many documents are 578 00:32:02,880 --> 00:32:06,720 Speaker 1: classified that some things accidentally make it into files when 579 00:32:06,720 --> 00:32:09,040 Speaker 1: they leave. Of course, an accent is not the same 580 00:32:09,080 --> 00:32:11,480 Speaker 1: as on purpose. Had they chosen to prosecute Trump on this, 581 00:32:11,520 --> 00:32:13,200 Speaker 1: they could have said, well, this is very different than 582 00:32:13,240 --> 00:32:16,800 Speaker 1: the ordinary case of a mistake. But it is one 583 00:32:16,840 --> 00:32:19,400 Speaker 1: of those things that is just sitting there waiting for 584 00:32:19,480 --> 00:32:22,920 Speaker 1: presidents to use to charge their predecessors. And in that sense, 585 00:32:23,000 --> 00:32:25,920 Speaker 1: it's also something to be worried about if it becomes 586 00:32:26,040 --> 00:32:30,880 Speaker 1: genuinely routine. But the January six investigation is a whole 587 00:32:30,880 --> 00:32:33,200 Speaker 1: different thing. Wait. Wait, before we go to January six, 588 00:32:33,280 --> 00:32:35,680 Speaker 1: I just understand the classified documents issue for a second. 589 00:32:36,480 --> 00:32:40,160 Speaker 1: There are other issues attendant to Trump that weren't present 590 00:32:40,200 --> 00:32:43,240 Speaker 1: with Biden, or with Mike Pence, it would appear, or 591 00:32:43,280 --> 00:32:46,120 Speaker 1: any number of other federal officials who it now seems, 592 00:32:46,560 --> 00:32:51,360 Speaker 1: accidentally wound up with classified documents in their folders. Which 593 00:32:51,440 --> 00:32:55,760 Speaker 1: is it appears that Biden wants his lawyers notified him 594 00:32:55,800 --> 00:32:58,400 Speaker 1: that he was in possession of these documents, made a 595 00:32:58,400 --> 00:33:00,680 Speaker 1: good faith effort to locate any that my be outstanding 596 00:33:00,680 --> 00:33:03,880 Speaker 1: and turn them over to federal officials. In Trump's case, 597 00:33:04,760 --> 00:33:07,280 Speaker 1: there appears to have been what also might be a 598 00:33:07,280 --> 00:33:11,800 Speaker 1: conspiracy to cover up the number of documents they have 599 00:33:12,040 --> 00:33:16,719 Speaker 1: to move their location to doctor cameras that had recordings 600 00:33:16,760 --> 00:33:19,520 Speaker 1: of the movement of those documents, all in the service 601 00:33:19,560 --> 00:33:22,640 Speaker 1: of obstruction of justice. So if there's not an Espionage 602 00:33:22,720 --> 00:33:25,640 Speaker 1: Act violation here, there still could be an obstruction of 603 00:33:25,680 --> 00:33:31,040 Speaker 1: justice violation. Right, You're absolutely right. And again, if other 604 00:33:31,160 --> 00:33:33,480 Speaker 1: charges are brought against Trump by the federal government, they 605 00:33:33,520 --> 00:33:36,959 Speaker 1: would probably throw those in. The question is whether you 606 00:33:36,960 --> 00:33:39,560 Speaker 1: could go with just those like So, let's imagine a 607 00:33:39,600 --> 00:33:43,560 Speaker 1: conscientious prosecutor decided that Trump's conduct around January six can't 608 00:33:43,600 --> 00:33:45,440 Speaker 1: be proven to a jury beyond a reasonable doubt to 609 00:33:45,440 --> 00:33:48,880 Speaker 1: be incitement, and that things he said behind closed doors 610 00:33:49,280 --> 00:33:52,520 Speaker 1: don't amount to a conspiracy to block the election. I mean, 611 00:33:52,560 --> 00:33:55,160 Speaker 1: just imagine this. It's not necessary the conclusion that I 612 00:33:55,160 --> 00:33:57,880 Speaker 1: would reach, but it's a conclusion that a prosecutor could reach. 613 00:33:59,000 --> 00:34:01,400 Speaker 1: But then says, but we should still prosecute him on 614 00:34:01,440 --> 00:34:05,320 Speaker 1: the documents. What I'm saying is not with saying that 615 00:34:05,640 --> 00:34:07,920 Speaker 1: you're right to say there will be obstruction charges there. 616 00:34:08,520 --> 00:34:14,480 Speaker 1: It's still the case that the violations by Biden, even 617 00:34:14,520 --> 00:34:17,160 Speaker 1: though they're not really comparable in a lot of ways, 618 00:34:17,719 --> 00:34:22,320 Speaker 1: will have the political effect I predict of convincing the prosecutors, 619 00:34:22,400 --> 00:34:25,440 Speaker 1: including the Attorney General, to say, I can't go forward 620 00:34:25,480 --> 00:34:28,600 Speaker 1: with this because it will look too much like I'm 621 00:34:28,640 --> 00:34:32,200 Speaker 1: going after the other sides candidate whom we beat for 622 00:34:32,320 --> 00:34:35,640 Speaker 1: something that we also in some way did what that 623 00:34:35,719 --> 00:34:37,920 Speaker 1: is is a prediction about how Mark Arland's judgment is 624 00:34:37,920 --> 00:34:39,920 Speaker 1: likely to go. And if you ask me, but it 625 00:34:39,920 --> 00:34:42,200 Speaker 1: would he be right in doing that? The honest truth 626 00:34:42,239 --> 00:34:44,600 Speaker 1: is I think the answer is yes. I think that 627 00:34:44,760 --> 00:34:46,960 Speaker 1: when you're going to, for the first time ever prosecute 628 00:34:46,960 --> 00:34:48,839 Speaker 1: a former president, and when you're the person doing it 629 00:34:48,880 --> 00:34:51,800 Speaker 1: is the president running for office against him, you really 630 00:34:51,840 --> 00:34:54,600 Speaker 1: need to bend over backwards to be clear that it 631 00:34:54,640 --> 00:34:56,879 Speaker 1: doesn't look in any way, shape or form like it's 632 00:34:56,880 --> 00:35:00,000 Speaker 1: a politically motivated prosecution. And he'd be making the same 633 00:35:00,080 --> 00:35:03,439 Speaker 1: decisions or decisions in the same neighborhood that you don't 634 00:35:03,440 --> 00:35:07,759 Speaker 1: think brag properly made or strategically made that Garland would 635 00:35:07,840 --> 00:35:11,640 Speaker 1: think through the strategic implications of which prosecutions he's going 636 00:35:11,680 --> 00:35:14,920 Speaker 1: to bring. Yes, there's no question about that. So I 637 00:35:14,960 --> 00:35:17,279 Speaker 1: interrupted you. Let's go on to the big Macgilla, the 638 00:35:17,360 --> 00:35:22,640 Speaker 1: January sixth insurrection. Yeah. So the January sixth insurrection is 639 00:35:22,840 --> 00:35:25,200 Speaker 1: a set of events where many people have now been 640 00:35:25,280 --> 00:35:28,440 Speaker 1: charged criminally. But I think almost that exception, they were 641 00:35:28,440 --> 00:35:31,200 Speaker 1: people who themselves entered the capital on January sixth. There 642 00:35:31,239 --> 00:35:33,640 Speaker 1: may be some people who conspired to facilitate that and 643 00:35:33,800 --> 00:35:36,160 Speaker 1: didn't actually cross into the capital who have been prosecuted, 644 00:35:36,160 --> 00:35:38,560 Speaker 1: but I'm not aware of any to date, and that's 645 00:35:38,680 --> 00:35:41,160 Speaker 1: good and important. There need to be prosecutions there, But 646 00:35:41,239 --> 00:35:43,880 Speaker 1: there still remains the question of the person who pushed 647 00:35:43,920 --> 00:35:47,200 Speaker 1: people to do this, which was Donald Trump. And so 648 00:35:47,360 --> 00:35:50,240 Speaker 1: the primary issue for that prosecution is can you charge 649 00:35:50,239 --> 00:35:54,040 Speaker 1: Trump criminally with incitement there? We should talk about that 650 00:35:54,040 --> 00:35:57,360 Speaker 1: because not a simple question. And then there's a secondary question, 651 00:35:57,640 --> 00:36:00,760 Speaker 1: but I think it's own way equally important of whether 652 00:36:01,000 --> 00:36:04,440 Speaker 1: things that Trump said or did behind the scene, so 653 00:36:04,520 --> 00:36:07,400 Speaker 1: not when he was addressing the crowd, but when he 654 00:36:07,560 --> 00:36:11,919 Speaker 1: was addressing his associates about what should be encouraged, when 655 00:36:12,000 --> 00:36:14,360 Speaker 1: he was talking to people from the Department of Justice 656 00:36:14,760 --> 00:36:17,200 Speaker 1: about whether he should appoint an attorney general who would 657 00:36:17,480 --> 00:36:19,960 Speaker 1: help him in some way subvert the election. When he 658 00:36:20,000 --> 00:36:23,359 Speaker 1: was talking to Department of Defense officials about whether he 659 00:36:23,400 --> 00:36:26,000 Speaker 1: could get the military to take some action on his behalf. 660 00:36:26,600 --> 00:36:30,480 Speaker 1: Those pieces of conduct I think could, arguably by a prosecutor, 661 00:36:30,640 --> 00:36:35,440 Speaker 1: be tied together into a broader conspiracy to fraud the 662 00:36:35,480 --> 00:36:38,880 Speaker 1: American public about the election and subvert the election results. 663 00:36:39,400 --> 00:36:42,240 Speaker 1: And that seems to me to be a very very serious, 664 00:36:42,280 --> 00:36:46,759 Speaker 1: potential criminal charge, really one of the highest order of importance, 665 00:36:47,239 --> 00:36:50,640 Speaker 1: And the Fourteenth Amendment comes into play here. The Fourteenth 666 00:36:50,719 --> 00:36:55,399 Speaker 1: Amendment references insurrection and the crime of insurrection as precluding 667 00:36:55,960 --> 00:36:59,840 Speaker 1: anyone from holding a state or federal office. It was 668 00:37:00,120 --> 00:37:03,000 Speaker 1: written into the Amendment after the Civil War to prevent 669 00:37:03,440 --> 00:37:06,319 Speaker 1: Confederate officials from holding high office in the wake of 670 00:37:06,320 --> 00:37:08,759 Speaker 1: the Civil War. That at the end of the day, 671 00:37:09,160 --> 00:37:13,160 Speaker 1: could be the single most important roadblock to Donald Trump 672 00:37:13,200 --> 00:37:15,280 Speaker 1: going back into the White House if he gets convicted 673 00:37:15,320 --> 00:37:19,640 Speaker 1: on an insurrection charge. That's true. If the conviction were 674 00:37:19,680 --> 00:37:22,799 Speaker 1: a conviction for insurrection, then under the plain meaning of 675 00:37:22,800 --> 00:37:25,719 Speaker 1: the Fourteenth Amendment, Trump would not be able to serve 676 00:37:25,760 --> 00:37:29,040 Speaker 1: as president. What is your sense of the timing on this. 677 00:37:29,239 --> 00:37:32,120 Speaker 1: Garland has been I think thoughtful, tentative, and in my 678 00:37:32,200 --> 00:37:35,920 Speaker 1: journalistic mind, slow. But that's unfair. I'm just being impatient. 679 00:37:36,480 --> 00:37:38,239 Speaker 1: Is he just going to let the fact pattern play 680 00:37:38,280 --> 00:37:41,000 Speaker 1: out and prosecute and file charges if and when he 681 00:37:41,040 --> 00:37:43,480 Speaker 1: thinks the time is right, or is he going to 682 00:37:43,520 --> 00:37:47,160 Speaker 1: wait until after twenty twenty four? By purpose, it seems 683 00:37:47,200 --> 00:37:50,760 Speaker 1: to me that if Garland is going to bring charges 684 00:37:51,000 --> 00:37:54,320 Speaker 1: before the election, season. It has to really be before 685 00:37:54,400 --> 00:37:57,000 Speaker 1: the primary season heats up. I think there is a 686 00:37:57,080 --> 00:38:00,319 Speaker 1: it's not a legal deadline, but a an implicit play 687 00:38:00,400 --> 00:38:04,000 Speaker 1: deadline that would say the sitting president should not bring 688 00:38:04,080 --> 00:38:07,360 Speaker 1: charges if at all possible, to avoid against a potentially 689 00:38:07,440 --> 00:38:11,160 Speaker 1: leading candidate running against him once the election season is 690 00:38:11,200 --> 00:38:14,440 Speaker 1: really underway. So it seems to me that he has 691 00:38:14,520 --> 00:38:17,240 Speaker 1: some months left where that charging decision can be made. 692 00:38:17,680 --> 00:38:20,239 Speaker 1: But if he didn't bring charges, you know, let's say 693 00:38:20,280 --> 00:38:23,440 Speaker 1: a month or two before the first Republican primaries, then 694 00:38:23,640 --> 00:38:26,640 Speaker 1: it's pretty clear that he won't bring those charges before 695 00:38:26,680 --> 00:38:28,719 Speaker 1: the elections are over. And I think that is a 696 00:38:28,760 --> 00:38:30,840 Speaker 1: correct view. I mean, he ought to do that. He 697 00:38:30,840 --> 00:38:32,640 Speaker 1: ought to be as careful as he possibly can be 698 00:38:32,680 --> 00:38:35,279 Speaker 1: around that lest people say, well, why didn't you bring 699 00:38:35,320 --> 00:38:37,680 Speaker 1: these charges earlier if they could have been defended against 700 00:38:37,680 --> 00:38:41,000 Speaker 1: and dealt with since the fact we're already ascertained Again, remember, 701 00:38:41,520 --> 00:38:44,320 Speaker 1: Garland first has to wait for Jack Smith, the special prosecutor, 702 00:38:44,440 --> 00:38:47,680 Speaker 1: tell him what to do. And given how important this 703 00:38:47,719 --> 00:38:50,880 Speaker 1: case is, everything is going to be carefully recorded and 704 00:38:51,480 --> 00:38:53,719 Speaker 1: Garland is not going to be poking around. He will 705 00:38:53,760 --> 00:38:55,920 Speaker 1: sit and wait for Smith, because that's what the procedure 706 00:38:55,960 --> 00:38:59,160 Speaker 1: is supposed to look like. For his part, Smith himself 707 00:38:59,200 --> 00:39:02,040 Speaker 1: will also bend backwards to make sure that his decision 708 00:39:02,080 --> 00:39:05,319 Speaker 1: doesn't look like it's ultimately politically motivated. So that's the 709 00:39:05,320 --> 00:39:08,600 Speaker 1: interface of those two folks. So let's suppose, like good 710 00:39:08,680 --> 00:39:11,560 Speaker 1: law abiding citizens and prosecutors, they do wait for the 711 00:39:11,840 --> 00:39:14,040 Speaker 1: clock to run a little longer so they don't appear 712 00:39:14,080 --> 00:39:16,640 Speaker 1: to be intruding with the twenty twenty four election. Then 713 00:39:16,760 --> 00:39:20,320 Speaker 1: twenty twenty four election happens, Trump wins and he replaces 714 00:39:20,360 --> 00:39:23,600 Speaker 1: Merrick Garland as Attorney general. If Trump is elected present 715 00:39:23,640 --> 00:39:26,200 Speaker 1: to the United States, not only will he replace the 716 00:39:26,200 --> 00:39:29,440 Speaker 1: attorney general even if charges were already brought. Let's say 717 00:39:29,440 --> 00:39:32,080 Speaker 1: they brought the charges during the lame duck, he could 718 00:39:32,080 --> 00:39:35,680 Speaker 1: just dismiss the charges against himself because once he's sworn 719 00:39:35,680 --> 00:39:38,320 Speaker 1: into office, he's prosecutor in chief. You know the cases 720 00:39:38,360 --> 00:39:40,440 Speaker 1: the United States against Donald Day Trump. Well, when Donald J. 721 00:39:40,520 --> 00:39:42,720 Speaker 1: Trump speaks for the United States, he will withdraw the charge. 722 00:39:43,640 --> 00:39:46,200 Speaker 1: Now we don't have the time for this scenario to arise. 723 00:39:46,280 --> 00:39:49,239 Speaker 1: But if Trump were convicted of a federal crime and 724 00:39:49,280 --> 00:39:51,920 Speaker 1: then was elected president and swore the oath of office 725 00:39:52,160 --> 00:39:54,319 Speaker 1: and there's nothing in the Constitution saying he could not 726 00:39:54,480 --> 00:39:58,760 Speaker 1: to be clear unless the charge was for insurrection, then Trump, 727 00:39:58,880 --> 00:40:01,480 Speaker 1: I am sure, would a sert his right to pardon himself, 728 00:40:02,440 --> 00:40:05,680 Speaker 1: and there we'd have an unprecedented issue. My view, I've 729 00:40:05,719 --> 00:40:08,279 Speaker 1: been saying this for the last five six years is 730 00:40:08,320 --> 00:40:10,600 Speaker 1: that there's no way that the pardon power imagined in 731 00:40:10,640 --> 00:40:13,840 Speaker 1: the Constitution could be used to self pardon. It flatly 732 00:40:13,880 --> 00:40:15,960 Speaker 1: contradicts the very idea of pardon, which is something you 733 00:40:16,040 --> 00:40:18,760 Speaker 1: do for somebody else, and it flatly contracts the idea 734 00:40:18,800 --> 00:40:21,600 Speaker 1: we would stop Donald Trump. Noah, well, exactly, and so 735 00:40:21,640 --> 00:40:23,319 Speaker 1: then it'll go to the Supreme Court. So that issue 736 00:40:23,320 --> 00:40:25,279 Speaker 1: would then go to the Supreme Court to determine whether 737 00:40:25,280 --> 00:40:27,759 Speaker 1: his pardon was legit. Well, you've just given me a 738 00:40:27,800 --> 00:40:30,040 Speaker 1: perfect segue to my last big question for you, which 739 00:40:30,080 --> 00:40:32,080 Speaker 1: is around the Supreme Court. But I want to take 740 00:40:32,120 --> 00:40:35,520 Speaker 1: another quick break, and when we come back, we'll examine 741 00:40:35,520 --> 00:40:38,080 Speaker 1: the role of nine Supreme Court justices are going to 742 00:40:38,160 --> 00:40:44,920 Speaker 1: play in all of this. We're back again with Noah Feldman, 743 00:40:45,320 --> 00:40:49,520 Speaker 1: a legal expert and columnist who is sorting out the 744 00:40:49,600 --> 00:40:54,120 Speaker 1: various meanings of the prosecutions and investigations arrayed against former 745 00:40:54,160 --> 00:40:58,560 Speaker 1: President Donald Trump. You've written very eloquently about the evolution 746 00:40:58,560 --> 00:41:01,360 Speaker 1: of the Court over the last or so. I recommend 747 00:41:01,400 --> 00:41:04,440 Speaker 1: everything you write about the Court to everyone you know 748 00:41:04,520 --> 00:41:07,759 Speaker 1: the court and intimate ways. I think you clerked alongside 749 00:41:07,760 --> 00:41:11,160 Speaker 1: Amy Coney Barrett in your younger life. You have great it, 750 00:41:11,480 --> 00:41:14,560 Speaker 1: I think admiration for her mind and her legal record 751 00:41:14,680 --> 00:41:18,239 Speaker 1: or her legal principles. But you've also written more recently 752 00:41:18,280 --> 00:41:21,080 Speaker 1: I think about some of your disillusionment with how the 753 00:41:21,120 --> 00:41:24,239 Speaker 1: Court has evolved and some of the issues attendant to that. 754 00:41:25,040 --> 00:41:27,520 Speaker 1: Do you think at the end of the day, the 755 00:41:27,560 --> 00:41:31,840 Speaker 1: Supreme Court will be a good faith arbiter of the 756 00:41:31,960 --> 00:41:34,400 Speaker 1: legal issues that might come in front of it in 757 00:41:34,440 --> 00:41:38,719 Speaker 1: this era? You know, I would sharply differentiate two aspects 758 00:41:38,719 --> 00:41:40,919 Speaker 1: of the way the Court has been doing things. One 759 00:41:41,120 --> 00:41:44,719 Speaker 1: is what I would call their partisanship. They have not 760 00:41:44,960 --> 00:41:48,439 Speaker 1: been on the big scale of things and extremely partisan court. 761 00:41:48,560 --> 00:41:52,800 Speaker 1: And my main case in chief is that Donald Trump 762 00:41:52,840 --> 00:41:55,759 Speaker 1: in twenty twenty tried to get the Supreme Court to 763 00:41:55,880 --> 00:41:59,040 Speaker 1: throw the election to him and brought many cases to 764 00:41:59,080 --> 00:42:00,879 Speaker 1: the lower courts into this Supreme Court, and the Court 765 00:42:00,920 --> 00:42:02,960 Speaker 1: had no time for that and no energy for that. 766 00:42:03,160 --> 00:42:05,120 Speaker 1: And no interest in that. And that includes the three 767 00:42:05,120 --> 00:42:08,759 Speaker 1: justices whom he appointed. And lest we forget, there were 768 00:42:08,760 --> 00:42:11,000 Speaker 1: lots of people really worried that Trump, having appointed three 769 00:42:11,000 --> 00:42:13,359 Speaker 1: justices with this conservative majority, would be able to use 770 00:42:13,400 --> 00:42:15,560 Speaker 1: the Court to break the democracy. And the Court wasn't 771 00:42:15,600 --> 00:42:18,640 Speaker 1: buying that. So that's the good news. It means that 772 00:42:18,719 --> 00:42:21,520 Speaker 1: I think the Court would probably not be very personally 773 00:42:21,560 --> 00:42:24,880 Speaker 1: inclined towards Trump, and I think that includes the justices 774 00:42:25,200 --> 00:42:27,520 Speaker 1: whom he appointed. I don't think they have a sense 775 00:42:27,560 --> 00:42:29,520 Speaker 1: of personal loyalty to him. So in that sense, I 776 00:42:29,520 --> 00:42:31,640 Speaker 1: would predict they would not be partisan in the sense 777 00:42:31,680 --> 00:42:33,960 Speaker 1: of giving the presidency to Donald Trump when he was 778 00:42:34,000 --> 00:42:39,120 Speaker 1: not elected or otherwise letting him off. That said, the 779 00:42:39,200 --> 00:42:44,040 Speaker 1: Court is profoundly ideological, and its ideology has a political 780 00:42:44,120 --> 00:42:46,400 Speaker 1: bent to it because it happens to be an ideology 781 00:42:46,440 --> 00:42:49,799 Speaker 1: that maps onto the ideologies of the political parties. And 782 00:42:49,840 --> 00:42:51,840 Speaker 1: so in that sense, if there were a case, for example, 783 00:42:51,880 --> 00:42:55,040 Speaker 1: about whether Trump could continue to be criminally prosecuted in 784 00:42:55,080 --> 00:42:58,680 Speaker 1: New York while serving as president, I think the kind 785 00:42:58,719 --> 00:43:02,400 Speaker 1: of common sense instinct of the conservative justices would be 786 00:43:02,960 --> 00:43:05,200 Speaker 1: this would be thwarting the will of the American people. 787 00:43:05,200 --> 00:43:08,320 Speaker 1: If the American people elected him, they would be thwarted 788 00:43:08,760 --> 00:43:12,080 Speaker 1: if it were the case that he couldn't actually govern. 789 00:43:12,560 --> 00:43:14,520 Speaker 1: And I have to say I think probably if it 790 00:43:14,520 --> 00:43:16,160 Speaker 1: were a democratic present and then sho were on the 791 00:43:16,239 --> 00:43:18,920 Speaker 1: other foot, that same common sense instinct would sit with 792 00:43:18,920 --> 00:43:21,919 Speaker 1: the liberal justices and would be the conservative justices saying, 793 00:43:22,000 --> 00:43:24,480 Speaker 1: rule of law, rule of law. You know, no one's 794 00:43:24,480 --> 00:43:27,160 Speaker 1: above the law. So that is an example of something 795 00:43:27,200 --> 00:43:30,279 Speaker 1: where you can't really separate politics and ideology from each other. 796 00:43:30,560 --> 00:43:33,680 Speaker 1: And in that situation, yeah, I'm very confident that the 797 00:43:33,719 --> 00:43:39,200 Speaker 1: Republican appointed justices, who very conservative, would be pretty sympathetic 798 00:43:39,280 --> 00:43:41,759 Speaker 1: to the claim that the newly elected president could still 799 00:43:41,760 --> 00:43:45,080 Speaker 1: serve I don't think that in their heart of hearts, 800 00:43:45,480 --> 00:43:49,680 Speaker 1: most of the conservative justices want Trump to be reelected. 801 00:43:50,280 --> 00:43:53,319 Speaker 1: I think he's an embarrassment, especially to the ones whom 802 00:43:53,320 --> 00:43:56,440 Speaker 1: he appointed. But that's just a psychological assessment of their 803 00:43:56,440 --> 00:43:59,600 Speaker 1: inner motives, not based on any actual evidence, rather than 804 00:43:59,680 --> 00:44:01,520 Speaker 1: something I can sing my teeth into. What I can 805 00:44:01,520 --> 00:44:06,240 Speaker 1: sing my teeth into is their jurisprudence, which broadly speaking 806 00:44:06,600 --> 00:44:09,960 Speaker 1: is and remains extremely conservative. And as you mentioned, I've 807 00:44:09,960 --> 00:44:12,759 Speaker 1: been really disappointed by the way that the pseudo originalist 808 00:44:12,840 --> 00:44:14,839 Speaker 1: arguments that the Court has been making, you know, not 809 00:44:15,080 --> 00:44:20,760 Speaker 1: very principled conservative originalism, but very outcome oriented decision making. 810 00:44:21,040 --> 00:44:23,640 Speaker 1: So why wouldn't this court then say that Fannie Willis 811 00:44:23,640 --> 00:44:26,320 Speaker 1: has no business in Georgia standing in the way the 812 00:44:26,360 --> 00:44:30,839 Speaker 1: will of the American people. Well, if the charges were 813 00:44:30,920 --> 00:44:34,040 Speaker 1: still pending at a time when Trump was elected, I 814 00:44:34,080 --> 00:44:36,919 Speaker 1: think that is what that court would say. If it's 815 00:44:37,000 --> 00:44:40,400 Speaker 1: in the midst of a presidential campaign, I think it 816 00:44:40,440 --> 00:44:44,320 Speaker 1: becomes a judgment call for them. Another reason why Fannie 817 00:44:44,320 --> 00:44:46,600 Speaker 1: Willis should decide to bring those charges again before the 818 00:44:46,640 --> 00:44:49,640 Speaker 1: campaign heats up and really we enter the primary season, 819 00:44:51,000 --> 00:44:54,560 Speaker 1: but for a charge brought any earlier than that. If 820 00:44:54,560 --> 00:44:56,719 Speaker 1: Trump were to go to the federal courts and say, look, 821 00:44:56,760 --> 00:44:58,960 Speaker 1: I'm running for president. I've said so, and therefore you 822 00:44:59,000 --> 00:45:01,799 Speaker 1: can't charge me, I think the justices would realize that 823 00:45:01,880 --> 00:45:04,319 Speaker 1: would give an incentive for every person about to be 824 00:45:04,400 --> 00:45:06,879 Speaker 1: charged with an offense in the United States to say, hey, 825 00:45:06,920 --> 00:45:09,200 Speaker 1: I'm running for a president, so you can't charge me. 826 00:45:09,239 --> 00:45:11,120 Speaker 1: And so the court would not be inclined. I don't 827 00:45:11,120 --> 00:45:13,880 Speaker 1: think to announce some bright line rule that said the 828 00:45:14,000 --> 00:45:16,480 Speaker 1: minute you file your paperwork to run for office, you 829 00:45:16,520 --> 00:45:19,040 Speaker 1: can't be charged criminally because that would set a very 830 00:45:19,040 --> 00:45:22,000 Speaker 1: bad precedent. So you know, I think the court would 831 00:45:22,120 --> 00:45:25,880 Speaker 1: be sympathetic once the election season is really up and running. So, Noah, 832 00:45:25,880 --> 00:45:28,880 Speaker 1: in this collision between Trump and the law and this 833 00:45:29,040 --> 00:45:32,400 Speaker 1: era that we're in which Trump is challenging civic norms 834 00:45:32,440 --> 00:45:36,520 Speaker 1: and legal institutions, what have you learned that you didn't 835 00:45:36,600 --> 00:45:40,080 Speaker 1: know before all of this landed upon us. What are 836 00:45:40,120 --> 00:45:42,480 Speaker 1: some of the AHAs that are front of mine for you? 837 00:45:43,320 --> 00:45:46,239 Speaker 1: The biggest AHA for me is that a value that 838 00:45:46,400 --> 00:45:49,600 Speaker 1: we all usually like, namely prosecutors should do things slowly 839 00:45:49,640 --> 00:45:54,239 Speaker 1: and methodically, is actually a disaster when it comes to 840 00:45:54,800 --> 00:45:58,600 Speaker 1: someone like Donald Trump, a politician who has lost an 841 00:45:58,600 --> 00:46:01,680 Speaker 1: election and is planning to run again. I wish that 842 00:46:01,719 --> 00:46:04,520 Speaker 1: you and I were having this entire set of conversations 843 00:46:05,320 --> 00:46:08,960 Speaker 1: eighteen months ago, in the early days of the Biden administration, 844 00:46:09,360 --> 00:46:11,440 Speaker 1: when whatever Trump might say about running for office, it 845 00:46:11,560 --> 00:46:15,240 Speaker 1: was a long way off before midterms, a whole different world, 846 00:46:15,960 --> 00:46:19,759 Speaker 1: and that is a possible scenario to imagine. Notwithstanding what 847 00:46:19,840 --> 00:46:22,000 Speaker 1: you were saying about the charges that the other prosecutors 848 00:46:22,000 --> 00:46:23,600 Speaker 1: in the New Right days office wanted to bring and 849 00:46:23,800 --> 00:46:25,720 Speaker 1: I'm happy to talk about that sometime in the future. 850 00:46:25,960 --> 00:46:29,160 Speaker 1: Basically old history. At this point, those were charges that 851 00:46:29,200 --> 00:46:32,800 Speaker 1: were ready at least a year ago, for what it's worth, 852 00:46:33,320 --> 00:46:36,840 Speaker 1: and ditto for the Georgia case. The facts were gathered. 853 00:46:36,920 --> 00:46:38,680 Speaker 1: It took a little bit longer, perhaps in the case 854 00:46:38,680 --> 00:46:42,880 Speaker 1: of the federal prosecution. But the danger that our political 855 00:46:42,880 --> 00:46:47,479 Speaker 1: season keeps expanding in time, and that therefore it gets 856 00:46:47,520 --> 00:46:49,960 Speaker 1: harder and harder to bring charges against someone like Donald 857 00:46:49,960 --> 00:46:53,320 Speaker 1: Trump is a real one. And so my takeaway is 858 00:46:53,360 --> 00:46:55,480 Speaker 1: the thing that I really don't think I fully understood 859 00:46:55,480 --> 00:46:57,400 Speaker 1: before we entered this season. I think I did understand 860 00:46:57,400 --> 00:46:59,200 Speaker 1: that there was going to be a trade off between 861 00:46:59,560 --> 00:47:02,920 Speaker 1: protect our political process and our democracy seeming to be 862 00:47:03,040 --> 00:47:08,479 Speaker 1: truly objective and being truly objective meaningfully and prosecuting Trump. 863 00:47:08,480 --> 00:47:10,200 Speaker 1: I understand there was a trade off. I didn't fully 864 00:47:10,239 --> 00:47:13,440 Speaker 1: understand the time to mension, And as I see it, it 865 00:47:13,320 --> 00:47:16,040 Speaker 1: it fills me with regret that these processes didn't go 866 00:47:16,080 --> 00:47:18,840 Speaker 1: by a lot more efficiently than they seem to have done. 867 00:47:19,200 --> 00:47:22,319 Speaker 1: Things moved slowly, but this podcast moved quickly. We've run 868 00:47:22,320 --> 00:47:24,280 Speaker 1: out of time, Noah, and I'm gonna have to say goodbye, 869 00:47:24,360 --> 00:47:26,600 Speaker 1: but I want to have you back soon. Please. I 870 00:47:26,600 --> 00:47:28,919 Speaker 1: would love that great to talk to him. If you're 871 00:47:29,000 --> 00:47:31,920 Speaker 1: interested in following Noah Feldman more closely, and I recommend 872 00:47:32,000 --> 00:47:34,960 Speaker 1: that you do, you can find him on Twitter at 873 00:47:35,120 --> 00:47:39,120 Speaker 1: Noah our Feldman, or find his columns on Bloomberg Opinion 874 00:47:40,280 --> 00:47:45,879 Speaker 1: here at crash Course, we believe that collisions can be messy, impressive, challenging, surprising, 875 00:47:46,280 --> 00:47:50,400 Speaker 1: and always instructive. In today's Crash Course, I learned the 876 00:47:50,400 --> 00:47:53,319 Speaker 1: Feldman rule. The idea that if you're going to go 877 00:47:53,400 --> 00:47:56,080 Speaker 1: against a president in the court of law, you better 878 00:47:56,120 --> 00:48:00,080 Speaker 1: go for the president's crown and if necessary avoid it. 879 00:48:00,160 --> 00:48:04,400 Speaker 1: Is wallet, especially if the president as someone is unacceptable 880 00:48:05,000 --> 00:48:09,320 Speaker 1: and concerning is Donald Trump. What did you learn? We'd 881 00:48:09,320 --> 00:48:11,320 Speaker 1: love to hear from you. You can tweet at the 882 00:48:11,320 --> 00:48:15,440 Speaker 1: Bloomberg Opinion handle at Opinion or me at Tim O'Brien 883 00:48:15,840 --> 00:48:20,000 Speaker 1: using the hashtag Bloomberg Crash Course. You can also subscribe 884 00:48:20,000 --> 00:48:22,839 Speaker 1: to our show wherever you're listening right now, and please 885 00:48:22,920 --> 00:48:25,520 Speaker 1: leave us a review that helps more people find the show. 886 00:48:26,400 --> 00:48:30,920 Speaker 1: This episode was produced by the indispensable Anna maazarakas Moses 887 00:48:30,960 --> 00:48:35,080 Speaker 1: and m and Me our supervising producer is Magnus Hendrickson, 888 00:48:35,520 --> 00:48:38,760 Speaker 1: and we had editing help from Sage Bauman, Katie Boyce, 889 00:48:39,239 --> 00:48:44,600 Speaker 1: Jeff Grocott, Mike Nizza and Christine Vanden Bilard Blake Maple says, 890 00:48:44,600 --> 00:48:47,800 Speaker 1: our sound engineering and our original theme song was composed 891 00:48:47,800 --> 00:48:51,759 Speaker 1: by Luis Gara. I'm Tim O'Brien. We'll be back next 892 00:48:51,760 --> 00:48:53,360 Speaker 1: week with another Crash course