The Great America Show - EXPECT TODAY’S ARRAIGNMENT TO BE LOUD AND MESSY AS THE DEFENSE AND PROSECUTORS ARGUE THEIR CLAIMS AND MOTIONS SAYS PROF. BRADLEY SMITH

00:00:00.000 Hello, everybody. I'm Lou Dobbs, and welcome to The Great America Show.

00:00:04.680 Delighted to have you with us on this historic day.

00:00:08.480 Regrettably, what makes this day historic is the Marxist Dems' decision to, 0.61

00:00:13.300 for the first time in American history, indict a former president and the presumptive Republican

00:00:19.000 nominee in 2024, who are the same person, of course, Donald J. Trump. President Trump is

00:00:26.060 scheduled to enter through the One Hogan Place entrance of the Manhattan Courthouse at 11 o'clock

00:00:32.040 today for processing, which includes indignities such as having his mugshot taken, fingerprinting,

00:00:38.820 and because all of this is political persecution, the district attorney may insist on handcuffs.

00:00:45.320 That's right, handcuffs. And he is just low enough to do just that. President Trump is scheduled to

00:00:52.380 be arraigned in Manhattan Supreme Court Justice Juan Merchant's courtroom on the 15th floor,

00:00:58.720 where Mr. Trump is expected to be arraigned at 2.15 this afternoon. He and his attorneys will then

00:01:05.860 learn the contents of the sealed indictment, and we may learn that Judge Merchant will put a gag order

00:01:12.480 on President Trump. A gag order. Can you imagine? The mockery of any judge ordering a presidential

00:01:19.780 candidate not to speak about anything would be a violation of his First Amendment rights.

00:01:25.660 All of this is an abomination, as former A.G. William Barr himself put it, and Barr is no fan

00:01:32.940 of President Trump, as we know. Forcing a president, a presidential candidate, to endure this circus

00:01:39.780 is un-American in every imaginable way, and likely unconstitutional. At least that's my opinion, 0.99

00:01:47.500 but we want a really professional, highly educated legal opinion on this, don't we?

00:01:53.960 So our guest today is all that and more. Joining us today is Professor Bradley Smith,

00:02:00.580 who teaches law at Capitol University Law School in Columbus, Ohio. He is also the founder of the

00:02:07.120 Institute for Free Speech, and served as commissioner, vice chairman, and chairman of the Federal Election

00:02:13.080 Commission. Professor Smith, it is great to have you with us. Thank you for being here. Welcome to the

00:02:19.340 show. What is your impression of this spectacle, this unprecedented case?

00:02:25.740 All right. Well, first, Lou, thanks. It's great to be here with you. So obviously, we haven't seen the

00:02:31.240 actual indictment yet. It's still sealed. But it strikes me as being both, A, based on very

00:02:38.680 flimsy legal theory, and B, just prudentially being something that is probably unwise to bring.

00:02:45.360 You know, I hear a lot of people saying, well, you know, no person is above the law.

00:02:48.840 But the question, you might turn that question around. Do you think if this were, say,

00:02:52.760 an ordinary congressman from upstate New York, Republican or Democrat, they would be bringing

00:02:57.960 this charge? You know, I think the answer just kind of feels like no. And that suggests that this is

00:03:03.160 not really a case of showing that no person is above the law. Rather, it's using prosecutorial

00:03:07.200 discretion to get somebody you've decided to get. At what point does the court take notice,

00:03:13.860 put some sort of credit to the context of what is happening here? Seven years of political

00:03:21.560 persecution of Donald J. Trump, not a single instance of wrongdoing found. And here we go again

00:03:28.660 from a local prosecutor in New York going after the president in what is clearly, to me at least as

00:03:36.300 a layman. It is an abuse of power on its face. Your thoughts?

00:03:43.060 Yeah, I'm sure we'll get to talking more about the details of the prosecutor's legal theory. But

00:03:47.340 in terms of, you know, the idea that this is a persecution, one of the things is that courts are

00:03:53.060 very reluctant to wade into that. In other words, if there is a legal grounds for the prosecution,

00:03:58.740 the courts are very reluctant to get into why the prosecutor brought the case. And I think if we,

00:04:04.540 as outrageous as it is to us, you know, if you kind of sit back, you can see why courts don't want to

00:04:09.180 do that, because you can start second guessing, you know, almost everything. So it's probably good

00:04:13.200 jurisprudence to avoid that. The unfortunate thing is that that then means, you know, we have to be

00:04:18.100 able to count on our prosecutors to exercise reasonable discretion. And, you know, the only

00:04:22.840 real solution to that is probably to have a political one. And unfortunately, in New York City,

00:04:28.000 I don't think you're going to get a political resolution to the prosecutor's behavior.

00:04:32.120 And that political result will be determined, whether it is a jury trial or a judge, because the

00:04:38.900 ratio of Democrats to Republicans in New York City is something around eight to one. This business

00:04:46.860 about a jury of his peers, I find that hard to even keep a straight face when I hear them suggest

00:04:53.400 that's the way it'll work, because this is great, great justice in our legal system.

00:04:59.540 Well, it will be hard to figure out where they're going to get a jury from, you know,

00:05:02.560 if they're going to find some people who've been living in Antarctica without web access for the last

00:05:06.240 seven years or something like that. It's going to be very hard, I think, to impanel a fair jury.

00:05:12.160 And unfortunately, in this kind of case, you know, oftentimes when you do get a jury,

00:05:18.700 it's, I guess we'll just kind of say less than ideal. You feel like it's not people who,

00:05:23.700 you know, have fought about some of these things at length. But in the end, I have pretty good

00:05:29.500 confidence in the jury system. You know, the closest prosecution I can think of to anything

00:05:33.580 like this was former Democrat John Edwards was prosecuted down in North Carolina a few years ago.

00:05:38.700 In a somewhat similar case, he had donors that had been paying living expenses for a woman that

00:05:43.220 he had apparently impregnated. And although the prosecutor brought the charges and the judge let

00:05:48.280 it go to trial, the jury did acquit Edwards. So, you know, we can hope that, you know,

00:05:53.560 the right thing will be done at the right time.

00:05:56.520 I don't want you to have, I would, I would like you to make this judgment. Which do you think would

00:06:04.160 be the most fair-minded jury of a Democrat or a Republican? Would it be in North Carolina or would

00:06:10.560 it be in Manhattan, New York? Well, you know, I have to say, I don't know where Edwards was tried

00:06:16.720 off the top of my head. I can't remember. He might've been tried in, you know, in the triangle

00:06:19.920 area there, Raleigh, which is pretty liberal enclave. So, so I, your skepticism is understood,

00:06:25.040 but I can't really comment further on it. Well, as we go, as we go forward with this,

00:06:30.720 I, my instincts are, as I say, as a layman, as a citizen, a proud citizen, I must say, 0.98

00:06:39.060 I, if I'm Donald Trump at some point, I have to say, go to hell. I've, I've gone through this for

00:06:45.980 seven years. I have represented the American people as their president. I'm entitled to respect

00:06:54.140 on the part of everyone, whether they're a Marxist dem or a, a conservative Republican.

00:07:02.400 And I just, I'm tired of it, I would say, and I'm not going to put up with it and we're going

00:07:07.500 to fight you. We're not going to get ensnared in the democratic labyrinth of punishment posing as

00:07:15.300 process. Well, I don't know what access his attorneys have have. I presume that they may have

00:07:20.560 seen more than the rest of us have seen. And of course, obviously it will be up to his

00:07:24.080 legal team to make, you know, such, uh, motions as they think are appropriate to change venue to a

00:07:28.820 more neutral location, uh, to dismiss the charges for any number of reasons to ask for recusal from,

00:07:34.480 uh, you know, particular judge, uh, you know, it's, it's going to be messy and it's, and it's

00:07:39.420 going to be loud. And, and behind all of this, of course, is the fact that I do think the,

00:07:44.460 the prosecutor's legal theory, uh, is very flimsy and, uh, one that he's going to have a tough

00:07:50.880 time proving. Well, the FCC found nothing wrong with, uh, the, the election, his, his, uh,

00:07:58.080 how he spent his money. I'll put it that way. Uh, so where do this, where does the cases we

00:08:04.680 understand it go from there? Yeah. So let's look at that as, as we understand the case and

00:08:09.460 again, we haven't seen the indictment, but as we think it's going to fold out all, all indications,

00:08:13.280 the leaks and so on are that, uh, the prosecutor wants to, uh, get, uh, the former president for

00:08:19.200 violating a New York law and falsification of business records, but that's just a misdemeanor.

00:08:23.400 And it's got a two year statutes of limitations that ran a long time ago. Uh, and you can't do

00:08:27.680 that. He wants, so he wants to up it to a felony by tying it by arguing that the, uh, falsification

00:08:33.200 of business records was to cover up another crime. Well, what is that other crime? What appears to be

00:08:39.220 a claim of, uh, campaign finance violations. And that takes us to, uh, Stephanie Clifford, AKA Stormy 0.85

00:08:46.860 Daniels, a, uh, uh, uh, an adult movie actress who says that at one time she had an affair,

00:08:52.900 uh, with, uh, Trump about 10 years before he was, uh, uh, president. Um, and in any case,

00:08:59.680 uh, the, the Trump company, uh, through this lawyer, Michael Cohen eventually paid her $130,000

00:09:05.660 to be quiet. Now, the argument that the prosecutor seems to make goes like this. The reason the Trump

00:09:12.060 company paid that money was to help Trump's election. And the federal statute on campaign

00:09:18.260 finance says that if something, something is in a contribution, if it is done for the purpose

00:09:23.500 of influencing a federal election. So this was for the purpose of influencing an election

00:09:27.660 and corporations cannot make contributions directly to candidate campaigns. Uh, and the

00:09:33.460 more of they have to report any campaign has to report things. So there you go. You've got

00:09:37.600 two violations of federal law, uh, case closed. The problem with that is that the federal law

00:09:43.300 that says for the purpose of influencing, and that's the key phrase was the, was the expenditure

00:09:47.060 for the purpose of influencing a campaign isn't about the subjective ideas that the spender

00:09:53.920 or the donor might have. In other words, you know, if I go out today and decide, you know,

00:10:00.180 it would really help Donald Trump be elected president or maybe help, help him lose the presidency,

00:10:04.080 right? Either one. And I say, so I'm going to, I'm going to spend a bunch of money

00:10:07.380 to run ads that say Donald Trump is a ding dong daddy from Dumas Bay, right? And okay. Uh, 0.53

00:10:14.020 you know, that's my purpose is to influence the election, but as, but it's not under the law,

00:10:20.420 a campaign expenditure, uh, because it doesn't specifically go to the election or to be a

00:10:25.460 little more realistic. Even if I ran ads saying, you know, Donald Trump should not be indicted.

00:10:30.580 Arguably that might be done, you know, that my purpose is to, is to help him win reelection,

00:10:36.260 or again, it could go the other way. Donald Trump should be indicted because, you know,

00:10:39.300 my purpose is to help him make sure he doesn't win reelection, right? Either one is not a campaign

00:10:45.540 expenditure. So what are campaign expenditures? They're objective things. There are things that

00:10:50.980 you would do only if you're running a campaign. So for example, I, I pay rent on a campaign

00:10:58.580 headquarters. A person doesn't do that. If they're not running for office, you hire a campaign manager.

00:11:03.520 A person doesn't do that. If they're not running for office, you run ads saying vote for Brad Smith

00:11:08.480 for Congress, right? You don't do that. If you're not running for Congress, right? But other things

00:11:13.840 that you might do to enhance your election are found both by, I think the statute by FEC regulation

00:11:19.360 and past court decisions, not to be campaign contributions. So for example, I want to look

00:11:25.840 really good in the debate. So I go out and I buy a $6,000 suit. Now, you know, I would never otherwise

00:11:30.880 buy a $6,000 suit. So I'm buying this really nice, beautiful suit, custom tailored and all just for

00:11:37.040 the purpose of helping my campaign chances. Nonetheless, it's not considered a campaign

00:11:42.400 expenditure because people buy clothes all the time. That's what you do. You know, you, you have

00:11:46.880 to buy clothes. Similarly, if I decide to have my teeth whitened, so I look better on the campaign

00:11:51.760 trail, that's not a campaign expenditure. Or to start to bring this closer to the Trump situation,

00:11:57.040 you know, business people that, you know, often have lawsuits filed against them and against their

00:12:00.800 companies. And some are meritorious and some are not. So let's say somebody who's a business person

00:12:05.360 decides I'm going to run for office. And he goes to his corporate legal counsel and he says,

00:12:09.840 look, I know these lawsuits are hanging out there against my, our business company. I think these are

00:12:14.720 bogus lawsuits. I think they're, you know, a bunch of nonsense, but I don't want them out there.

00:12:20.160 I don't want the press attacking me for them. So I want you to settle those right now. Think about

00:12:25.280 that. The only reason they're paying the settlement, which they have no legal obligation to pay

00:12:29.520 is because they want to, you know, they have the purpose of influencing the election subjectively,

00:12:35.680 but objectively under the statute, that's not a campaign expenditure. You can't use campaign

00:12:40.720 funds to settle your personal debts or your corporate law debts, just because doing so might

00:12:46.480 help your campaign. So that's the problem, or at least one problem that the prosecutor,

00:12:51.520 that the DA Bragg has in this case, that, that he's, he's hinged all this on this idea that if

00:12:56.960 it's for the purpose of influencing an election, then it's a violation of federal law. But that's,

00:13:02.160 that's really not right. That purpose clause, again, doesn't go to his subjective view,

00:13:07.760 it goes to an objective standard of whether or not this is a, a, a, a campaign expenditure.

00:13:13.520 And just to add a touch of icing on the cake, the FEC in its regulations has made very clear

00:13:19.440 that the fact that one purpose of an expenditure is to help a campaign or to influence a campaign

00:13:26.400 is not enough. It's not enough if it's primarily to, for the purpose of influencing the campaign.

00:13:31.760 It has to be an expenditure that exists only because one is campaigning. So, you know,

00:13:36.880 one can take what they want about that, about, you know, the former president's, you know, personal

00:13:41.440 behavior, whether they believe Stormy Daniels or not, all these kinds of things, but it doesn't

00:13:45.360 really matter. In the end, it's not a campaign expenditure and the whole case in my view falls

00:13:50.000 apart. So you also have a, the star witness, Michael Cohen is a convicted liar. He is by other 0.91

00:13:59.760 descriptions of attorneys who've worked with him and including Robert Costello, a well-known

00:14:05.360 powerful attorney in New York sitting before the grand jury saying point blank. He's a pathological 0.83

00:14:13.040 liar. And that's your star witness for crying out loud. This, this is, this is very thin stuff 1.00

00:14:20.720 to the point that it, it looks like an invention in whole. It's an invention by the prosecutor.

00:14:28.240 Yeah. The, you know, the, the Cohen thing's interesting because of course, Cohen pleaded

00:14:32.640 guilty to a campaign finance violation for facilitating this transaction. So some people

00:14:38.080 say, well, there you go. He's already pleaded guilty. But again, there's a number of problems

00:14:42.000 with that. And I wrote back at the time, he just pleaded guilty to something that's, that's not a crime.

00:14:46.240 So think about Cohen's position. First, you've got Costello, who, if I remember right, is Costello

00:14:50.160 or someone else who says that Cohen, you know, said, I will say whatever I have to, to avoid jail. Okay.

00:14:55.360 But then, then take that beyond that, you know, what prosecutors often do is they stack up all

00:15:00.160 these charges. So, so Cohen was looking at staying in prison for the rest of his adult life, right?

00:15:05.600 And instead he takes a plea bargain where he pleads guilty to the campaign finance charge.

00:15:09.920 And why that charge? Because that's the one the prosecutors want, because that's the one they can

00:15:14.480 then link back to Trump and go after Trump. But that doesn't mean he actually really committed it,

00:15:20.000 that they could prove it in a court of law. And it doesn't have any

00:15:23.760 precedential value there, right? Because nothing was proven in a court of law

00:15:28.400 that this was a violation of the statute. And again, I think the prosecutors are just reading

00:15:32.560 the federal campaign statute in a way that's, that's unsupported by, you know,

00:15:37.360 the Supreme Court precedent unsupported by FEC regulations and, and not really the most

00:15:43.840 logical interpretation of the statute itself.

00:15:45.920 Have you ever seen a more transparent case of prosecutorial abuse in the political arena?

00:15:55.680 Well, the political arena is one area where prosecutors sometimes get carried away, but,

00:15:59.840 but let's, let me just add this to maybe shed, answer that question indirectly. Think what would

00:16:04.880 have happened had Trump used campaign funds to pay off Stormy Daniels. You know, I mean, we can't know for

00:16:10.400 sure, but it sure feels to me like this prosecutor would then be accusing Trump of having misused

00:16:17.120 campaign funds to pay for personal expenses. That is to pay off, you know, sort of legal threats or threats

00:16:23.520 from this woman, Stormy Daniels. And, and I think that's the, the nub of this, you know, they're, they're

00:16:28.400 going to get you coming or going here is, is what we're looking at. And I think that is a very, you know,

00:16:34.320 problematic situation for the rule of law. It really becomes the sort of situation where we decide,

00:16:40.320 you know, who the, who the person we want to get is, and then we charge him. And if he does it,

00:16:44.400 if he has the company pay for it, we charge him with an illegal campaign expenditure. If we have

00:16:49.200 the campaign pay for it, then we would have charged him with an illegal campaign expenditure.

00:16:54.000 And, and I just don't think he can do that. Yeah. I hope not because it's with the number of things

00:16:59.440 one can't do in the legal system are being significantly reduced. This is, this is just

00:17:06.000 so outrageous. Watching these poll numbers, the way independents, Republicans that we would other

00:17:13.600 call, who we would otherwise call rhinos are moving toward Trump and saying they're going to vote for

00:17:19.280 him, not only in the, in the primaries, but in the general election. I mean, by the time this gets

00:17:25.840 to court, it looks like it could be that president Trump wins by, uh, by unanimous acclamation.

00:17:32.800 Uh, this is bizarre that we've gone this far and it seems to be an effort to first behind all of it

00:17:41.360 to keep him from running. And then the judge throws a gag order on him. Uh, so it's just one insult,

00:17:49.760 one injury after the other to our political and legal systems. Yeah. Well, I mean, we'll have to

00:17:56.160 see the longterm, you know, political fallout. Uh, you know, one could envision, uh, the prosecutors,

00:18:01.920 I thought is look, this really fires up the anti-Trump crowd, you know, that, that they want him to do

00:18:08.000 this and they really want it done. And, uh, that, that he thinks longterm, you know, this is enough.

00:18:14.080 Some people seem to think that the Democrats want to run against Trump, uh, and they think

00:18:18.960 that the indictment will hurt. But as you pointed out, a lot of the polling data is sort of showing

00:18:23.360 differently. I think a lot of Republicans just rally around a person they think has been treated

00:18:28.000 unfairly, you know, who's on their team. And I think a lot of independents are kind of nervous

00:18:33.440 about this, but you know, public opinion, do you get, I mean, you've been around a long time,

00:18:38.400 all and I have, you know, I'm sorry, but you've been around the block, you know, what's going on

00:18:43.760 in DC and you know how public opinion goes. We'll have to see. Professor, I won't hold your lack of

00:18:48.880 experience against you in any way. Uh, this, this does though seem to be such a, uh, a contrivance,

00:18:58.000 uh, across the board. And as you say, public opinion is fickle, but the reality is that there is a

00:19:06.960 constant in this. And that is the Marxist stems who are now driving the democratic party, uh, have,

00:19:14.880 have just turned the legal system. Uh, well, they've corrupted it through and through. I know that

00:19:20.400 we're supposed to not have, according to John Roberts, the chief justice, uh, Obama judges and

00:19:25.760 Bush judges, uh, or Republican judges and Democrat, but the, it is now clear. It is now in the open

00:19:33.600 for all to see there are Obama judges. There are, uh, Bush judges. Uh, there are thankfully a few 1.00

00:19:41.040 Trump judges, but we, we, right now we're watching decisions being made, uh, on the political leanings

00:19:49.440 and, uh, biases, the partisan views of juries and courts and no better, uh, example, uh, than the

00:19:59.600 justice department going after with the aid of the Marxist stems, January six committee

00:20:05.760 going after citizens who were first of all, publicly demonstrating their support for Donald

00:20:12.080 Trump. What it grew into is another thing, but what it grew into was far less than anything.

00:20:17.760 Those prosecutors are charging or judges are sentencing. I'd like to get your thoughts.

00:20:23.440 Yeah, we, I, I do think it's a real concern. You know, there's, as you mentioned, uh, you know,

00:20:28.720 look, some people, I think on January 6th, you know, got out of line and, and should be prosecuted.

00:20:35.200 Um, I'm not sure about the precise charges and whether they're overcharged, but, but it appears

00:20:39.200 that a significant number of people really didn't do much, but, but enter the Capitol unhindered and

00:20:44.560 then walk around it. And, and there's an effort to, to prosecute some of these people. We also see it,

00:20:50.080 uh, you know, been in the news lately is this fellow named Doug Mackey, or goes by Ricky Vaughn

00:20:55.200 online who way back in 2016, put out a meme post that just said, uh, Hey, you know, uh, vote text

00:21:02.400 Hillary at five, nine, nine to five to vote for Hillary and be part of history. Um, and, uh, 1.00

00:21:08.640 there's no evidence that anybody was actually fooled by that. I don't know how much he thought

00:21:12.400 he was joking, you know, but they're prosecuting him under an old law that was aimed at people who

00:21:16.960 literally were, you know, beating up people, trying to vote, lynching people, trying to vote,

00:21:20.640 blocking your ability to walk into the polls. And they're kind of going after him for this

00:21:24.800 prank that apparently did not fool any actual voters, uh, into voting. And, and he's facing,

00:21:30.080 you know, years in prison. Um, so, so we have this sort of sense that, that things are not right.

00:21:36.240 You know, I always thought one of the best things president Trump did, you know, when he ran for office

00:21:41.040 at these rallies, people would chant, lock her up about Hillary Clinton. And, but when Clinton 0.95

00:21:46.160 or when Trump took office, he said, look, we're not going to lock up Hillary Clinton. That's not 0.97

00:21:50.160 what we do in this country. We don't go after our political rivals and try to put them in jail.

00:21:54.320 You know, maybe that goes in the no good deed goes unpunished category. Now, uh, I thought that

00:21:59.040 was the proper approach for him to take. And, and it certainly is not the kind of thing we're seeing

00:22:03.760 now. We're seeing what, you know, you, you would think most people would say, okay,

00:22:06.720 maybe shouldn't have done that. Maybe a few people will face some minor, you know, uh, legal, uh,

00:22:12.240 penalty, but what we're seeing is all out of proportion of that. And seems to be an effort

00:22:16.800 to sort of go after people with opposing political views. And I think it should be very troubling to

00:22:21.360 people. It is right now a political system, uh, that is, you know, you teach law, you are

00:22:28.960 a highly respected professor and expert on, uh, election law as well, uh, as the legal system

00:22:36.400 itself. I can't figure out any way out of this mess. I really cannot because the, the Marxist

00:22:45.280 Dems have taken this country. They now control the federal government. They control the Senate.

00:22:50.480 They control the presidency. They control the courts and they control obviously the

00:22:56.960 Department of Justice and the FBI. There's no other explanation for the way in which they've

00:23:01.040 conducted themselves. How do you get away from that? Because it is clear, uh, that right now there

00:23:08.720 are no obvious institutional governmental, uh, visions of the founders that contemplated this

00:23:16.880 and created machinery, uh, to, to write vast wrongs. Your thoughts on that?

00:23:23.040 Yeah, it is really troubling as you suggest Lou, um, uh, to be, you know, kind of breaking these,

00:23:30.960 these barriers down. Like I say, that's why I thought that, that, uh, you know, President Trump's

00:23:36.000 response to the Hillary Clinton thing to say, look, we're not going to try to prosecute this woman.

00:23:40.640 What was the right one? At some point, people have to be willing to deescalate. But at this point,

00:23:45.840 what we're clearly seeing is the Democrats are not deescalating. They're, they're escalating. And by

00:23:51.520 the way, it goes into lots of other little areas. For example, you know, after January 6th,

00:23:56.000 uh, well, first there was the, you know, the whole committee and they wouldn't let the Republicans

00:23:59.520 appoint people to the committee and so on. But then also remember they kept like, what was it? Like

00:24:03.360 3,000 national guard troops in the Capitol for like three months. You know, what was the purpose of that

00:24:08.720 other than to intimidate people? I think. And I, I, you know, the, the constant hype about, uh,

00:24:14.880 disinformation and these efforts to block that, which apparently include, we see more and more sort

00:24:20.800 of government related contacts to that. All of this to me is, is very disturbing. And, you know,

00:24:26.000 I think ultimately, you know, the, the people are going to have to revolt at the polls. And

00:24:31.040 unfortunately, if they, if they don't do that, um, we're going to get more of this and it's,

00:24:36.400 it's going to be, as you say, very, very difficult to unwind, you know, after this,

00:24:40.480 it's going to be very difficult for Republican prosecutors not to go after Democrats might be

00:24:45.600 good if they didn't, but their base is going to say, Hey, it's our turn. Moreover,

00:24:49.360 you don't want to be a sap. You don't want to say, well, we're not going to prosecute your guys.

00:24:52.800 Democrats come back into power and prosecute our guys. You know, you can't have that sort of

00:24:57.280 scenario. So, um, I, I think, uh, that Mr. Bragg, the DA there, you know, maybe he did think this

00:25:03.760 through, but you kind of feel like, did he really think about what's kind of good for the country?

00:25:08.320 What's, what's the best thing, uh, to do here? And I'm, I'm afraid the answer either is no,

00:25:14.000 he didn't or, or yes, he did, but made a terribly wrong conclusion. And it's, and it's going to get worse

00:25:19.040 before it gets better. Yeah. The, the, to me, there is no question. We all form our opinions and I'm,

00:25:26.480 I'm being, uh, having an opinion as part of my craft. Uh, it's very difficult to imagine

00:25:34.320 that Bragg had either good counsel or much judgment of any kind, uh, his obvious animus

00:25:41.920 toward president Trump, uh, and that of his, uh, including his wife, who, uh, was quite a, uh,

00:25:50.400 Twitter, uh, maven. Uh, it's just, it's just terrible for the country. And we are, and what really

00:25:57.680 bothers me professors, I don't see anyone as in business standing up and saying, you know,

00:26:01.840 the country's got to do better than this. I don't see anyone in academia saying, you know,

00:26:06.640 uh, respected scholars and social critics, uh, if we have any remaining, that is social critics,

00:26:13.440 uh, say, you know, we really can't do this historians with any kind of gravitas. Instead,

00:26:18.720 they're all partisans, uh, and they're, you know, they're braying at the moon, uh, like, uh, the most,

00:26:25.360 uh, you know, fevered, uh, partisan, uh, in either party. Yeah. You know, I think back to two New

00:26:31.440 York senators who served, uh, consecutive terms. In fact, one replaced the other. I don't know why

00:26:35.760 they're the two that kind of mind, but you know, where is the Democrats, Daniel Moynihan or someone

00:26:39.760 like that will come up and say, look, this should stop. We should not be doing this. And, and the

00:26:44.800 other thing about us, the man who replaced James Buckley, uh, conservative Republican who never had,

00:26:50.560 you know, who would have said the same thing. I'm sure I've, I knew James Buckley a bit or know him

00:26:54.560 a bit. And, and, uh, you know, there's no way that he would have said, this is the right way to

00:26:58.720 handle this. And where are those kinds of responsible leaders who would just put, you know,

00:27:02.320 the, the country's interest here ahead of that, that partisanship and, and be willing to stand up

00:27:06.640 to their own base and say, look, you've got to calm down. You know, um, we, you know,

00:27:11.360 Donald Trump is not the president, uh, and, you know, we're not going to go after him on this charge.

00:27:18.000 You know, one thing we haven't even talked about Lou is that the statute of limitations on this

00:27:21.840 charge by, by trying to ratchet up to a felony in the way he has, the prosecutor gets a longer

00:27:26.480 five-year statute of limitations, but that is also dubious because, you know, five years,

00:27:31.280 more than that has gone by since 2016. His theory appears to be, again, we haven't seen the documents,

00:27:36.720 but it appears to be that somehow that statute of limitations was told either while the president

00:27:41.280 was serving in office or when he's been out of the state, I don't know. But, you know,

00:27:45.200 so even on that, we start with a, you know, before we get into the substance of the complaint,

00:27:49.920 we have a, a questionable, uh, issue of whether or not he's within the statute of limitations.

00:27:55.360 I just don't see how a responsible prosecutor would have brought this case. And I, I think it's

00:27:59.760 a very bad precedent. Let me ask you, is there anything about this prosecution, this decision to

00:28:07.920 indict, uh, that strikes you as valid, meritorious, uh, and proper?

00:28:17.920 Well, no, not really. I mean, the most, most I could say is that assuming that, that Mr. Bragg

00:28:24.080 believes his theory and, and by the way, it's not, you know, it's, it's not an absolutely insane

00:28:28.160 theory, right? I mean, there, you know, you can look at for the purpose of influencing the election

00:28:31.760 and try to read it the way he has. Um, you know, that's probably the best that can be,

00:28:36.640 be said for it. So I say, I fear that they would have gone after Trump, whether he was coming or

00:28:42.000 going, they would have either said it's an illegal use of campaign funds, or it's an illegal use of

00:28:46.400 private funds, uh, to do this. And, and I don't think the answer can, can be both. Uh, so, uh, no,

00:28:53.440 I, I just don't think there is much to go on. And I, I raised the point I raised earlier,

00:28:57.280 you know, to this argument that no one is above the law. Well, ask yourself, if you think somebody

00:29:02.640 running for, for city council in New York would be being prosecuted for this in this way, you know,

00:29:07.280 with all the questions about the statute of limitations and the underlying, you know,

00:29:10.960 theory of a federal violation, which they're going to have to kind of try a lawsuit within a lawsuit,

00:29:15.520 uh, where the FEC chose not to prosecute that and so on. Uh, I, I don't think that, that other

00:29:21.920 people would be being prosecuted for this. So I don't think this is a question of showing no one is above

00:29:26.240 the law. I think what we're actually showing is that if you want to target somebody, you can and

00:29:30.320 get away with it. And I think that's bad. It's terrible. And no one being above the law is

00:29:35.600 obviously a fiction. All we have to do is look at, uh, uh, Paul Pelosi, Nancy Pelosi, uh, Hillary and

00:29:44.640 Bill Clinton, uh, and, uh, a fellow by the name of Joe Biden, uh, and what seems to be a family

00:29:50.960 enterprise that, uh, is somewhat breathtaking in the amount of revenue they generated, uh,

00:29:56.720 offshore, as they say. Yeah. I mean, nobody knows, knows, you know, whether he's guilty or not there

00:30:01.920 because we haven't had any kind of trial, but you sure don't see, see much interest in exploring that,

00:30:06.000 do you? Not a lot of prosecutorial energy. No, uh, four years, uh, Hunter Biden has been under

00:30:13.280 quote unquote investigation. Uh, it's, it is a sad, sad moment we live in, uh, for both the law and for

00:30:21.440 our, our great, our great society, uh, and, uh, a great president who is being treated, uh, horribly,

00:30:30.400 uh, by a system that is not, uh, either mature or bright enough to figure out checks and balances,

00:30:37.520 uh, when dealing with this much evil, uh, such obvious evil, we always professor give our, our

00:30:45.200 guests, the, uh, the, uh, the last word here. So your concluding thoughts, if you would, sir.

00:30:50.380 My concluding thoughts is the prosecution is based on a exceedingly questionable legal theory,

00:30:55.640 questionable at a couple of different points, uh, and is a real abuse of, of prosecutorial judgment,

00:31:03.560 if not, if not completely prosecutorial discretion. And, uh, I'll just leave it at that. And I thank

00:31:09.640 you Lou for having me on. It's been a pleasure. Professor Bradley Smith, Capitol University Law

00:31:14.680 School. And thanks everybody for being with us here tomorrow. We'll be former Manhattan assistant

00:31:19.960 district attorney, Amir Benno. He's an appellate and constitutional law attorney. Please join us here

00:31:26.760 tomorrow for that and more till then. God bless you and God bless America.

The Great America Show - April 04, 2023

EXPECT TODAY’S ARRAIGNMENT TO BE LOUD AND MESSY AS THE DEFENSE AND PROSECUTORS ARGUE THEIR CLAIMS AND MOTIONS SAYS PROF. BRADLEY SMITH

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