WEBVTT - Line Between Lawyering and Complicity in Trump Taxes 0:00:00.080 --> 0:00:03.480 Yeah, a court order is forcing some of Donald Trump's 0:00:03.520 --> 0:00:06.960 former top tax lawyers to give thousands of documents to 0:00:07.080 --> 0:00:11.240 investigators showing the risk attorney's face when their own actions 0:00:11.280 --> 0:00:14.440 go under a microscope. Joining me is Christopher for a 0:00:14.480 --> 0:00:17.960 Bloomberg Law team leader for the business of law. So 0:00:18.040 --> 0:00:20.759 Chris tell us about these documents that the lawyers have 0:00:20.840 --> 0:00:25.200 to turn over. So a judge ordered these attorneys that 0:00:25.360 --> 0:00:28.760 Morgan Lewis, who have been representing and advising President Trump 0:00:28.760 --> 0:00:31.720 and his companies on various tax matters, to turn over 0:00:32.840 --> 0:00:35.839 a couple of thousand dot com pages of documents at 0:00:35.920 --> 0:00:39.360 least regarding some of that advice in some of the 0:00:39.479 --> 0:00:43.680 specific tax transactions that Trump was involved in. And it's 0:00:44.000 --> 0:00:46.320 they're being turned over to the New York Attorney General 0:00:46.360 --> 0:00:49.520 that Tisha James as part of a probe um into 0:00:49.560 --> 0:00:53.280 some accusations of tax cheating by Trump and the Trump organization. 0:00:54.240 --> 0:00:57.760 Did the law firm try to fight the request, try 0:00:57.800 --> 0:01:00.600 to claim attorney client privilege? And how did that go? 0:01:01.000 --> 0:01:04.000 Apparently not so well they did, and it didn't go 0:01:04.120 --> 0:01:08.160 well for them. The firm made two arguments that it 0:01:08.319 --> 0:01:11.479 was these documents were covered and protected by attorney client 0:01:11.560 --> 0:01:14.800 privilege between the firm and the company, and also that 0:01:14.840 --> 0:01:17.800 they were attorney work product, which doesn't have to be 0:01:17.840 --> 0:01:21.399 turned over under the rules for this kind of thing. 0:01:21.720 --> 0:01:25.480 The judge rejected that argument and said that UM a 0:01:25.520 --> 0:01:28.280 lot of these documents had to do with UM sort 0:01:28.319 --> 0:01:32.280 of talking about statements to the media UM communications of 0:01:32.319 --> 0:01:36.120 a non legal advice matter. Whether that's because the actual 0:01:36.200 --> 0:01:39.720 subject of the communication was not a legal question, or 0:01:39.800 --> 0:01:44.440 because non lawyers and folks who were not UM clients 0:01:44.840 --> 0:01:48.080 were also involved in some of those communications. We have 0:01:48.200 --> 0:01:51.720 not seen the actual documents ourselves, those have been under 0:01:52.240 --> 0:01:55.240 UH feel by the court UM. But what we do 0:01:55.320 --> 0:01:59.200 know is that they the investigators are looking in particular 0:01:59.360 --> 0:02:03.680 at two acts deals that these lawyers advised Trump on. 0:02:03.680 --> 0:02:06.240 One of them has to do with the property in Westchester, 0:02:06.320 --> 0:02:08.600 New York, UH and the other one is out in 0:02:08.840 --> 0:02:12.000 l a UM. And what they're looking at here is 0:02:12.040 --> 0:02:15.960 that there were certain property and easement on certain property 0:02:16.000 --> 0:02:20.680 owned by Trump was donated UH for charitable causes as 0:02:20.680 --> 0:02:23.920 a conservation easement. And what they're looking at there is 0:02:23.960 --> 0:02:28.440 how much of a tax UH break the company took 0:02:28.440 --> 0:02:31.880 in return for donating those easements, and the tax break 0:02:32.000 --> 0:02:35.240 is based on how those the properties were valued. And 0:02:35.280 --> 0:02:38.680 there are some allegations there that the Trump organization has 0:02:38.720 --> 0:02:42.079 been inflating the value not only of these two easements, 0:02:42.080 --> 0:02:44.720 but of a wide range of property for several years 0:02:44.760 --> 0:02:48.519 now in order to get tax breaks UM and favorable loans. 0:02:49.480 --> 0:02:54.720 How much is done by accountants and how much by lawyers, 0:02:54.800 --> 0:02:56.640 you know, there's a lot of money involved here and 0:02:56.680 --> 0:03:00.000 a lot of different things in play, so I think 0:03:00.040 --> 0:03:02.480 can vary based on the situation, but it was safe 0:03:02.520 --> 0:03:06.239 to assume that an organization the size of the Trump 0:03:06.440 --> 0:03:10.519 organization would not only have tax lawyers working on these things, 0:03:10.560 --> 0:03:14.920 but professional accountants as well, and so it would be 0:03:14.960 --> 0:03:19.520 done under the advice of both the lawyers and the accountants. UM. 0:03:19.680 --> 0:03:21.960 My understanding and what I was told from some of 0:03:22.000 --> 0:03:24.680 the experts here is that the accountant would certainly be 0:03:25.200 --> 0:03:28.960 the first line there and the person who's who's calculating 0:03:29.000 --> 0:03:31.920 what the value of this property is UM, But the 0:03:31.960 --> 0:03:36.440 tax lawyers would ultimately be reviewing that and making calls 0:03:36.480 --> 0:03:39.520 in terms of how whether that's um you know, they're 0:03:39.520 --> 0:03:42.440 pushing the envelope too much in terms of the value 0:03:42.880 --> 0:03:46.800 or running into potential legal questions. Otherwise, the lawyers who 0:03:46.800 --> 0:03:49.600 have represented him. The tax lawyers have represented him for 0:03:49.640 --> 0:03:53.760 a while. Right, that's right. The firm is Morgan Lewis, 0:03:53.840 --> 0:03:57.640 and it's a pair of attorneys, most notably a woman 0:03:57.720 --> 0:04:02.000 named Sherry Dillon, who some oakes may remember appeared at 0:04:02.400 --> 0:04:07.200 with then President elect Trump in two UM at a 0:04:07.280 --> 0:04:12.040 closely watched UM press conference at his hotel in Manhattan 0:04:12.080 --> 0:04:15.520 in which President Trump pledged and rolled out a plan 0:04:16.240 --> 0:04:18.440 under which he was going to divest from all of 0:04:18.520 --> 0:04:22.359 his various businesses before entering the White House. And he 0:04:22.440 --> 0:04:25.560 also showed up with a stack of boxes which he 0:04:25.600 --> 0:04:28.880 claimed where his tax returns um which he also said 0:04:28.880 --> 0:04:31.280 he was willing to turn over just as soon as 0:04:31.360 --> 0:04:35.279 this ongoing UM audit was finished. And so Dylan was 0:04:35.320 --> 0:04:39.320 standing by his side there and and even was wampooned 0:04:39.360 --> 0:04:42.200 on on Saturday Night Live the next week when they 0:04:42.240 --> 0:04:45.240 did their own skit on that press conference. UM. So 0:04:45.279 --> 0:04:47.760 she's been well known as a Trump tax advisor for 0:04:47.880 --> 0:04:51.359 several years, even dating back to before when she joined 0:04:51.400 --> 0:04:54.480 Morgan Lewis six or seven years ago. And then the 0:04:54.480 --> 0:04:57.440 other person at issue here is a guy named William Nelson, 0:04:57.440 --> 0:05:01.520 who's a tax law veteran, had worked UM during the 0:05:01.560 --> 0:05:04.839 Reagan administration and has been with the firm for several decades. 0:05:05.520 --> 0:05:08.240 Both of these attorneys, in addition to a few others 0:05:08.240 --> 0:05:11.400 from Morgan Lewis, has really been the primary advisors for 0:05:11.440 --> 0:05:13.880 the Trump Organization and President Trump on a lot of 0:05:13.920 --> 0:05:19.200 his tax matters. Can lawyers advising clients about tax matters 0:05:19.600 --> 0:05:24.600 be themselves found responsible for a client's illegal acts or 0:05:24.640 --> 0:05:28.880 illegal claims made? Potentially? And I think it's worth pointing 0:05:28.880 --> 0:05:32.880 out here that there has been no public accusation that 0:05:33.000 --> 0:05:35.920 either of these two attorneys, or that the firm otherwise 0:05:36.040 --> 0:05:41.000 has violated ethics laws, ethics rules, criminal laws, or itself 0:05:41.080 --> 0:05:44.279 is facing any civil liability. But it is interesting to 0:05:44.320 --> 0:05:47.880 see that investigators are taking a closer look at these transactions, 0:05:47.920 --> 0:05:51.279 and it specifically are looking at these lawyers roles in 0:05:51.320 --> 0:05:56.080 those transactions. So my understanding is that there is certainly 0:05:56.480 --> 0:05:59.320 some gray area and some wiggle room here, and that 0:05:59.440 --> 0:06:04.159 attorney UM should be allowed to, if they're clients, full 0:06:04.200 --> 0:06:07.360 throated advice. And if you know, it turns out down 0:06:07.360 --> 0:06:10.239 the road that the I R S or the SEC 0:06:10.600 --> 0:06:14.400 or a judge maybe UM disagrees with the legal conclusions 0:06:14.440 --> 0:06:17.680 that the attorney reached. That's not necessarily going to get 0:06:17.680 --> 0:06:20.560 the attorney in hot water unless the advice was just 0:06:20.640 --> 0:06:24.159 so reckless or off base. But where attorneys can run 0:06:24.200 --> 0:06:28.320 into trouble are in these situations where either they are 0:06:28.360 --> 0:06:31.560 putting their stamp of approval knowingly on some sort of 0:06:31.640 --> 0:06:34.719 unlawful behavior, or if they're just burying their heads in 0:06:34.760 --> 0:06:37.880 the sands and pretending like it's not going on. And 0:06:37.920 --> 0:06:41.520 so we've seen that in some high profile cases over 0:06:41.560 --> 0:06:44.840 the course of the last decade or so, where attorneys 0:06:45.320 --> 0:06:48.680 may face even criminal penalties, and in one situation where 0:06:48.720 --> 0:06:51.839 a tax firm because of the civil penalties that they faced, 0:06:51.880 --> 0:06:54.080 wrapped up in one of those cases that wound up 0:06:54.080 --> 0:06:57.480 going out of business. So a lot of times a 0:06:57.560 --> 0:07:01.480 lawyer will give advice and it pushes the envelope and 0:07:01.600 --> 0:07:05.520 the client says, let's go for it. Is that kind 0:07:05.560 --> 0:07:09.280 of advice testing the limits of the law. Is that 0:07:09.360 --> 0:07:13.080 kind of advice criminal? I'm hesitant to say that it's criminal, 0:07:13.120 --> 0:07:16.120 but it's certainly moving into that gray area where there 0:07:16.160 --> 0:07:18.840 could be some problems. I mean, one person's view of 0:07:18.880 --> 0:07:22.560 what's pushing the envelope and another of what criminal certainly 0:07:22.840 --> 0:07:26.120 could be different. And some of the tax law experts 0:07:26.120 --> 0:07:29.760 and legal ethics experts say that firms are more and 0:07:29.800 --> 0:07:34.040 more aware of these gray areas and more and more 0:07:34.320 --> 0:07:39.160 UM unwilling to test them, particularly the larger firms that 0:07:39.240 --> 0:07:42.679 have a lot to risk. We're not talking about taking 0:07:42.720 --> 0:07:48.920 advantage of tax loopholes, correct, UM. Certainly there's nothing wrong 0:07:48.960 --> 0:07:53.280 with UM any person or business taking advantage of all 0:07:53.400 --> 0:07:56.720 of the tax benefits and breaks that are available to 0:07:56.800 --> 0:08:00.880 them under the law. In this particular case, what we 0:08:00.960 --> 0:08:04.640 know about the allegations is that investigators both the state 0:08:04.760 --> 0:08:08.120 and the city level at the Manhattan d A's office 0:08:08.480 --> 0:08:13.440 are looking into whether the Trump organization violated UH several 0:08:13.520 --> 0:08:19.760 laws by really inflating and overvaluing these properties. In order 0:08:19.800 --> 0:08:24.120 to does a lawyer have to report a client if 0:08:24.160 --> 0:08:27.680 he or she suspects the client is doing something illegal 0:08:27.800 --> 0:08:33.560 like inflating assets. There is a that's a very very 0:08:33.640 --> 0:08:37.400 gray area and very largely based on the situation and 0:08:37.440 --> 0:08:41.000 the state that you're in, because you're talking about largely 0:08:41.120 --> 0:08:44.959 state legal ethics rules UM, which vary from state to state. 0:08:45.880 --> 0:08:49.920 But that being said, in recent cases, what you're seeing 0:08:50.320 --> 0:08:55.240 UM is not the firm or the lawyer necessarily reporting 0:08:55.280 --> 0:08:58.160 the client anywhere, but they do have an obligation to 0:08:58.280 --> 0:09:03.400 step down UM and top advising or representing the clients 0:09:03.440 --> 0:09:08.520 in particular, and attorneys looking at potential um personal liability 0:09:08.640 --> 0:09:11.760 or ethics charges if they knowingly sign their name to 0:09:11.880 --> 0:09:14.240 something that's filed with the I R. S ors filed 0:09:14.240 --> 0:09:17.520 in court that they know is false or is misleading 0:09:17.600 --> 0:09:21.240 or otherwise violating the law. So who are they bringing 0:09:21.320 --> 0:09:26.080 the charges against them? It doesn't sound like it's criminal charges. Unclear, 0:09:26.679 --> 0:09:30.319 I'll say for now, the both Letitia James, the A. G. 0:09:30.559 --> 0:09:35.360 Her Office, and the Manhattan DA Civans have been um, 0:09:35.400 --> 0:09:37.760 you know, sort of holding their cards close to the 0:09:37.840 --> 0:09:41.560 vest in terms of the details of what they're looking 0:09:41.600 --> 0:09:46.120 into and what potential liability either the President or his 0:09:46.200 --> 0:09:49.880 companies may face as a result of that. It seems 0:09:49.920 --> 0:09:54.680 certainly like um everything is is potentially on the table um. 0:09:54.720 --> 0:09:58.160 And it also seems certainly like the president, the former 0:09:58.200 --> 0:10:02.160 president and his companies are the primary target of these probes. 0:10:02.400 --> 0:10:07.960 The lawyers are simply being swept in as those probes playout. 0:10:08.360 --> 0:10:11.440 Because it seems like you have two different factors. You 0:10:11.520 --> 0:10:14.400 keep describing gray areas, and there certainly are a lot 0:10:14.440 --> 0:10:17.240 of gray areas in this where it's even hard to 0:10:17.360 --> 0:10:20.240 draw a line. And then on the other side, you 0:10:20.320 --> 0:10:24.360 have these tax rules that are so complex that a 0:10:24.480 --> 0:10:29.319 client by themselves wouldn't be able to in most instances 0:10:29.720 --> 0:10:33.240 come up with these things. They need an expert exactly. 0:10:33.240 --> 0:10:36.439 And you could certainly see why an individual or the 0:10:36.440 --> 0:10:39.200 the person at the company who's signing their name on 0:10:39.320 --> 0:10:42.439 these these tax documents would turn around and say, well, 0:10:42.480 --> 0:10:45.040 I just listened to the advice of my accountants and 0:10:45.080 --> 0:10:48.200 my lawyers. Um. And certainly that would be a hurdle. 0:10:49.080 --> 0:10:52.200 Although that's not a defense, could certainly be a hurdle 0:10:52.240 --> 0:10:57.280 in terms of where these investigations go um probing into 0:10:57.320 --> 0:11:01.520 the Trump organization and the former president. I'm certain that 0:11:01.640 --> 0:11:04.640 the investigators are trying to dig in there and get 0:11:04.640 --> 0:11:06.920 a better sense of who was making the calls on 0:11:07.000 --> 0:11:10.520 these things, who knew what was going on, and there 0:11:10.600 --> 0:11:13.679 was the envelope was being pushed or lines were crossed, 0:11:14.400 --> 0:11:17.040 Who was making that call? And because I take it 0:11:17.120 --> 0:11:19.760 because you mentioned a few cases in your story that 0:11:19.960 --> 0:11:22.200 there aren't that many cases that have been brought against 0:11:22.320 --> 0:11:26.160 lawyers in tax matters, that's right. I mean the ones 0:11:26.200 --> 0:11:29.120 that you see are the ones where, UM, folks are 0:11:29.120 --> 0:11:31.520 really caught red handed there, you know, whether it's in 0:11:31.559 --> 0:11:34.720 communications or or they admit to it in cord or 0:11:34.720 --> 0:11:39.680 to investigators where UH lawyers are knowingly violating the law 0:11:40.480 --> 0:11:43.480 to assist that their clients, and those are the sort 0:11:43.520 --> 0:11:48.880 of open and closed cases, UM, and that are easier 0:11:48.920 --> 0:11:52.400 to prosecute. I would assume, and you could see why investigators, 0:11:52.440 --> 0:11:55.480 because there's so much gray area here, UH may not 0:11:55.960 --> 0:11:59.600 to vote resources to those cases where it's unclear, UM, 0:11:59.760 --> 0:12:03.080 you what's legal advice and what's criminal activity. Has any 0:12:03.160 --> 0:12:07.640 lawyer gone to prison over this? Yes? UM, there was 0:12:07.840 --> 0:12:11.800 a lawyer I believe he was at Sidley Austin, and 0:12:11.880 --> 0:12:13.760 he was sentenced to six and a half years in 0:12:13.920 --> 0:12:18.520 prison for writing letters that authorized tax shelters that k 0:12:18.760 --> 0:12:22.240 PMG had created for various wealthy customers. So he did 0:12:22.280 --> 0:12:26.280 six years in jail. UH, and the firm Sidley was 0:12:26.360 --> 0:12:29.400 forced to say more than thirty nine million dollars in 0:12:29.440 --> 0:12:32.040 a civil penalty to the I R. Tell us about 0:12:32.120 --> 0:12:35.800 the timing here. This is all happening at the same 0:12:35.840 --> 0:12:40.560 time that Morgan Lewis is trying to separate itself from 0:12:40.600 --> 0:12:43.400 Trump and the Trump organization as a client. A week 0:12:43.520 --> 0:12:46.920 or two before the judge made this ruling, the firm 0:12:47.000 --> 0:12:51.000 said publicly that it would be no longer representing Trump 0:12:51.040 --> 0:12:53.560 for his companies. Can they just drop a client in 0:12:53.559 --> 0:12:57.360 the middle of an investigation? It's not that easy, for sure. 0:12:57.440 --> 0:12:59.959 And I should say that these Morgan Lewis attorneys are 0:13:00.320 --> 0:13:03.880 among a small army of lawyers from various firms that 0:13:03.920 --> 0:13:07.760 are representing Trump contax in a wide range of other matters, 0:13:07.760 --> 0:13:10.920 so he has no shortage of attorneys at his disposal. 0:13:11.280 --> 0:13:15.960 But there are legal and ethical responsibilities in terms of 0:13:16.240 --> 0:13:19.199 a firm extricating itself from a client in the middle 0:13:19.240 --> 0:13:23.240 of an investigation or a court case. So, UM, it's 0:13:23.240 --> 0:13:26.240 not something where they can say, Okay, we're done here. Uh, 0:13:26.280 --> 0:13:29.200 and that's the end of it. There's you know, um 0:13:29.240 --> 0:13:32.560 ethical rules that have to be met, and um, they 0:13:32.600 --> 0:13:36.800 have to make sure that Trump has other council available 0:13:36.880 --> 0:13:39.520 and and that they're checking all the boxes from the 0:13:39.640 --> 0:13:43.679 ethics side. Thanks Chris. That's Christopher op for a Bloomberg 0:13:43.800 --> 0:13:47.920 Law team leader for the Business of Law. I've been 0:13:47.960 --> 0:13:51.280 talking to former federal prosecutor Robert Mints, a partner of 0:13:51.360 --> 0:13:55.400 Carter in English about the unprecedented second impeachment trial of 0:13:55.559 --> 0:13:59.640 former President Donald Trump, seems as if we know the 0:14:00.160 --> 0:14:05.680 come already, what's the point. Well, that is a great question, 0:14:05.720 --> 0:14:09.400 and that highlights the fact that that an impeachment in 0:14:09.440 --> 0:14:13.080 the House followed by a trial in the Senate looks 0:14:13.120 --> 0:14:16.640 a lot like a criminal trial, but in many respects 0:14:16.679 --> 0:14:19.680 it's nothing like it at all. In fact, an impeachment 0:14:19.720 --> 0:14:25.080 process is really a purely political process. For example, if 0:14:25.120 --> 0:14:28.440 this were to be a criminal trial and jurors were 0:14:28.440 --> 0:14:31.920 to have already announced that they were inclined to either 0:14:32.000 --> 0:14:34.920 convict or a quit a defendant, they would not even 0:14:34.960 --> 0:14:38.160 be permitted to sit on that jury. But in this case, 0:14:38.520 --> 0:14:40.520 the jurors are members of the United States said it, 0:14:40.640 --> 0:14:44.160 many of whom have already announced that they were leaning 0:14:44.240 --> 0:14:48.480 either towards conviction or acquittal. Some have maintained that they're 0:14:48.480 --> 0:14:51.040 going to keep an open mind, but in this case, 0:14:51.400 --> 0:14:54.640 it seems that the outcome is preordained. There was emotion 0:14:54.760 --> 0:14:59.560 presented by Senator brand Paul already before this process has 0:14:59.560 --> 0:15:02.600 already be gone, in which senators voted on the question 0:15:02.680 --> 0:15:06.320 of whether or not this impeachment trial was even constitutional 0:15:06.360 --> 0:15:09.680 to begin with. The argument was that to cause President 0:15:09.680 --> 0:15:14.520 Trump is no longer sitting president, that this impeachment is unconstitutional, 0:15:14.560 --> 0:15:17.840 And there were enough Republican senators forty five of them 0:15:17.880 --> 0:15:21.600 in fact, who already voted in favor of that motion, 0:15:21.840 --> 0:15:25.320 that suggests that they are disinclined to vote for conviction 0:15:25.520 --> 0:15:29.600 based upon this argument that the entire process is unconstitutional 0:15:29.840 --> 0:15:33.240 at this point. So it does seem that unless there 0:15:33.320 --> 0:15:36.480 is a huge shift in opinion on the part of 0:15:36.520 --> 0:15:39.800 the Republican senator's very unlikely we're going to see a 0:15:39.800 --> 0:15:42.280 conviction at the end of this process. So the first 0:15:42.360 --> 0:15:45.160 day is going to be devoted to arguments about the 0:15:45.200 --> 0:15:49.240 constitutionality of having an impeachment trial when a president is 0:15:49.280 --> 0:15:52.200 out of office, and we can expect the vote to 0:15:52.240 --> 0:15:57.360 be similar to that taken after Rand Paul's argument. So 0:15:57.400 --> 0:16:01.400 on Wednesday, the actual trial will start. Reportedly, the house 0:16:01.440 --> 0:16:04.560 managers have learned from last time, and they're going to 0:16:04.600 --> 0:16:09.920 have a much more concise and shorter presentation, heavy on video. 0:16:10.000 --> 0:16:14.000 What are you expecting to see? Reportedly, the house managers 0:16:14.440 --> 0:16:17.360 have learned from the last time, and they're going to 0:16:17.480 --> 0:16:22.160 have a much shorter presentation, heavy on video. What do 0:16:22.240 --> 0:16:24.880 we know about what they might do here. I think 0:16:24.880 --> 0:16:28.040 we're going to see the House managers having learned quite 0:16:28.040 --> 0:16:30.840 a bit from the first impeachment trial, which went on 0:16:31.000 --> 0:16:34.480 for almost three weeks, and many people, including members of 0:16:34.480 --> 0:16:37.200 the Senate who stat through that trial found much of 0:16:37.200 --> 0:16:42.160 the presentation repetitive and uninteresting. In this case, I think 0:16:42.240 --> 0:16:44.920 we're going to see something entirely different. This is going 0:16:44.960 --> 0:16:48.640 to be a video heavy presentation. It's going to be 0:16:49.200 --> 0:16:52.320 very visual, and there's going to be a reliance on 0:16:52.600 --> 0:16:56.520 primary source material as opposed to witness testimony. So what 0:16:56.560 --> 0:16:59.320 I mean by that is instead of having videos of 0:16:59.400 --> 0:17:03.240 individual who testified before House committees, we're going to see 0:17:03.320 --> 0:17:09.040 the presentations by House managers here largely replaying actual clips 0:17:09.080 --> 0:17:13.960 of President Trumps giving speeches, of President Trump tweeting out comments, 0:17:14.359 --> 0:17:17.200 and that is going to be the focus of their case. 0:17:17.520 --> 0:17:20.000 They are going to try to build this case around 0:17:20.119 --> 0:17:24.840 President Trump's own words and own tweets. It seems like 0:17:24.920 --> 0:17:29.840 the problem is going to be connecting his words to 0:17:30.480 --> 0:17:34.840 his supporters actually storming the capital. I think we we're 0:17:34.840 --> 0:17:37.800 going to see here is a presentation that takes the 0:17:37.880 --> 0:17:41.879 Senate chronologically through the month long build up to the 0:17:42.000 --> 0:17:45.680 January six storming of the Capital. They're going to try 0:17:45.720 --> 0:17:49.159 to replay all the speeches, all of the comments, all 0:17:49.200 --> 0:17:52.840 of the tweets that were made by President Trump challenging 0:17:53.119 --> 0:17:57.520 the legitimacy of the election, challenging the outcome of the 0:17:57.640 --> 0:18:01.320 voting process, and then they are going to build to 0:18:01.400 --> 0:18:05.280 the presentation of Presidents Frump speaking outside the White House 0:18:05.400 --> 0:18:09.000 only hours before the mob overtook the police and invaded 0:18:09.040 --> 0:18:12.000 the Capitol building. They're going to key, in particular on 0:18:12.080 --> 0:18:15.600 the President's comments his supporters to fight like hell and 0:18:15.720 --> 0:18:19.040 march to the capital and confront Congress when Congress was 0:18:19.119 --> 0:18:22.960 at that point certifying the election. The challenge for House 0:18:23.040 --> 0:18:26.840 managers here is whether or not they can convince any 0:18:26.920 --> 0:18:32.200 number of Republican Senators that it was foreseeable based upon 0:18:32.280 --> 0:18:36.800 the president's comments that this insurrection should happen. It all 0:18:36.960 --> 0:18:39.879 changes on the question of what was the President's intent 0:18:40.240 --> 0:18:44.080 and was it foreseeable that this violence would erupt based 0:18:44.160 --> 0:18:47.360 upon his language. That is going to be the challenge here, 0:18:47.560 --> 0:18:49.159 and at the end of the day, it's going to 0:18:49.200 --> 0:18:53.800 be difficult to convince the number of Republican senators seventeens 0:18:53.920 --> 0:18:57.040 in order to gain a convintion. But let's remember also 0:18:57.480 --> 0:19:02.240 that this impeachment process and this Peachman trial is largely 0:19:02.400 --> 0:19:06.880 aimed at public opinion. House managers know that it's unlikely 0:19:06.920 --> 0:19:09.080 they're going to get a conviction here, and so what 0:19:09.119 --> 0:19:12.280 they're really trying to do is create a record for 0:19:12.440 --> 0:19:16.520 the public to consume as they watch the events leading 0:19:16.600 --> 0:19:21.040 up to January six unfold again during this trial, all 0:19:21.040 --> 0:19:25.200 indications are that they're not going to call witnesses. Does 0:19:25.240 --> 0:19:29.680 it leave something out of the presentation if you don't 0:19:29.720 --> 0:19:35.679 have witnesses talking about what President Trump's reaction to the 0:19:35.800 --> 0:19:39.919 riot was and his failure to take quick action to 0:19:40.000 --> 0:19:44.320 stop the riot. Well, it's interesting because some of the 0:19:44.440 --> 0:19:47.439 key witnesses in this trial are actually the members of 0:19:47.440 --> 0:19:51.240 the Senate themselves, who leaves through the events of January six. 0:19:51.640 --> 0:19:54.200 So that's another way in which this is a very 0:19:54.280 --> 0:19:57.879 unusual trial. Typically, if this were to be a criminal trial, 0:19:57.920 --> 0:20:00.840 for example, you would never have somebody sitting as a 0:20:00.960 --> 0:20:04.240 juror who is actually also a witness. But here we 0:20:04.320 --> 0:20:06.800 have all of the members of the Senate who sat 0:20:06.840 --> 0:20:09.960 through the events of January six and witnessed the events 0:20:10.040 --> 0:20:13.800 unfolding in real time before their very eyes. But what's 0:20:13.880 --> 0:20:18.679 missing here is direct evidence of President Trump's reaction to 0:20:18.760 --> 0:20:21.879 these events. We know that he was slow to ask 0:20:21.920 --> 0:20:25.280 the rioters, the people who had overtaken the police and 0:20:25.359 --> 0:20:29.040 taken control of the Capitol building to leave, but other 0:20:29.119 --> 0:20:32.080 than that, there isn't a lot of evidence that shows 0:20:32.359 --> 0:20:37.119 president state of mind while these rioters had stormed the 0:20:37.160 --> 0:20:43.919 Capitol Building. There is some indication that the president's lawyers 0:20:43.960 --> 0:20:48.720 may use video from Democrats talking to crowds, trying to, 0:20:48.800 --> 0:20:52.960 I guess, replicate the idea of riling up a crowd, 0:20:53.040 --> 0:20:57.280 But does that have any bearing here. There is a 0:20:57.320 --> 0:21:01.800 possibility that in the president's offense, you're going to see 0:21:01.920 --> 0:21:07.280 his lawyers find examples of Democrats giving speeches that they 0:21:07.320 --> 0:21:11.439 will argue, we're equally incendiary. In other words, they're going 0:21:11.480 --> 0:21:15.439 to argue that Democrats in other contexts gave speeches to 0:21:15.520 --> 0:21:18.919 their supporters that were just as fiery, that were just 0:21:18.960 --> 0:21:23.239 as incendiary, and in those cases nobody said anything, and 0:21:23.280 --> 0:21:26.680 they were not responsible for any violence that may have ensued. 0:21:26.920 --> 0:21:29.840 In this case, there was violence of a different sort. 0:21:29.960 --> 0:21:32.440 There was the storming of the capital. But the point 0:21:32.480 --> 0:21:35.040 that the president's lawyers will be trying to make here 0:21:35.800 --> 0:21:39.400 is that the president was not responsible for that conduct 0:21:39.720 --> 0:21:44.000 because it was, in some substance not all that different 0:21:44.160 --> 0:21:47.720 from the same type of language that Democrats used in 0:21:47.800 --> 0:21:52.280 trying to speak to their base of supporters. Another constitutional 0:21:52.359 --> 0:21:56.120 argument the defense is going to use is that Trump 0:21:56.160 --> 0:21:59.720 had the First Amendment right to make the speech that 0:21:59.800 --> 0:22:03.359 he did. Is that a strong or weak argument in 0:22:03.400 --> 0:22:07.800 your opinion? Well, it's really not a case about First 0:22:07.840 --> 0:22:11.760 Amendment right. It's a case about whether it was foreseeable 0:22:12.119 --> 0:22:15.679 that this insurrection would have resulted as a result of 0:22:15.720 --> 0:22:19.760 the words that were spoken. One of the interesting issues 0:22:19.800 --> 0:22:23.040 that we may see unfold in terms of the president's 0:22:23.040 --> 0:22:27.280 defense team is how they handle the president's claims about 0:22:27.400 --> 0:22:30.480 election fraud and that the results of the election were 0:22:30.520 --> 0:22:35.000 stolen from him. That's a highly controversial area that Republicans 0:22:35.000 --> 0:22:37.200 in the Senate do not want to see as the 0:22:37.320 --> 0:22:41.800 centerpiece of that defense. So far, the defense lawyers have 0:22:41.960 --> 0:22:45.040 handled that in a very delicate way by arguing that 0:22:45.080 --> 0:22:48.560 there was quote unquote insufficient evidence it true that the 0:22:48.600 --> 0:22:52.080 president's claims about election fraud were fall So in some 0:22:52.160 --> 0:22:54.840 ways they're trying to thread the needle there by not 0:22:54.960 --> 0:22:58.679 taking on that issue directly, which is something that Senate 0:22:58.680 --> 0:23:02.399 Republicans do not want to see as a centerpiece of 0:23:02.440 --> 0:23:05.600 the President's defense, but at the same time not leaving 0:23:05.640 --> 0:23:10.159 it out altogether, which is something that former President Trump 0:23:10.480 --> 0:23:14.480 legedly feel strongly about. In the brief that the defense 0:23:14.640 --> 0:23:19.160 filed today, their final brief before trial, they really made 0:23:19.160 --> 0:23:22.480 a political argument against the Democrats as well. They said 0:23:22.560 --> 0:23:26.080 that this was an act of political theater and that 0:23:26.160 --> 0:23:29.520 the Democrats were exploiting the chaos and trauma of the 0:23:29.600 --> 0:23:34.879 Capitol riot just continuing their attacks on Trump. Is that 0:23:34.920 --> 0:23:36.920 a good argument to make in a case like this 0:23:37.359 --> 0:23:41.080 to blame the prosecution basically, But what they're trying to 0:23:41.240 --> 0:23:44.560 argue is that the Democrats are trying to take political 0:23:44.640 --> 0:23:49.440 advantage of this very unfortunate event that costs the line 0:23:50.040 --> 0:23:53.760 of five Americans when individual store in the Capitol building. 0:23:54.040 --> 0:23:56.800 And in a sense they are correct and that this 0:23:57.080 --> 0:24:00.520 is a political process. But I think that argument is 0:24:00.560 --> 0:24:03.919 going to get overwhelmed by the visual evidence of the 0:24:03.960 --> 0:24:08.160 events of the day, showing these people storming the building, 0:24:08.480 --> 0:24:11.679 pushing past Capitol police officers. That is going to be 0:24:11.760 --> 0:24:14.760 something that is gonna be very difficult to rebut and 0:24:14.960 --> 0:24:18.040 trying to suggest that this is all about politics, I 0:24:18.040 --> 0:24:21.040 think is probably not going to be a particularly persuasive 0:24:21.160 --> 0:24:23.600 argument for those people who are going to watch this 0:24:23.720 --> 0:24:26.960 trial unfold on television. Do you think that it's an 0:24:27.040 --> 0:24:32.000 uphill battle to prove Trump's intent? If this were a 0:24:32.000 --> 0:24:34.919 criminal trial, would they be able to prove his intent 0:24:35.040 --> 0:24:38.760 beyond a reasonable doubt? Well, that is a great question, 0:24:39.240 --> 0:24:42.119 But remember it's not a criminal trial here until the 0:24:42.280 --> 0:24:47.639 standards that ultimately senators will use to either convict or 0:24:47.680 --> 0:24:50.920 a quit here, or whatever they feel in their heart, 0:24:51.000 --> 0:24:53.600 in their soul as they look at this evidence is 0:24:53.640 --> 0:24:56.600 the right thing to do. There is no legal standard 0:24:56.920 --> 0:25:00.920