EXPECT TODAY’S ARRAIGNMENT TO BE LOUD AND MESSY AS THE DEFENSE AND PROSECUTORS ARGUE THEIR CLAIMS AND MOTIONS SAYS PROF. BRADLEY SMITH
Episode Stats
Words per Minute
185.25328
Summary
On this day in American history, a former president and the presumed Republican presidential nominee in 2024, Donald J. Trump, is charged with criminal contempt of the office of the United States Attorney for the Eastern District of New York. President Trump has been accused of obstructing justice, lying to the FBI, and making false statements, among other things.
Transcript
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,
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,
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,
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
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,
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
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
00:14:13.040
liar. And that's your star witness for crying out loud. This, this is, this is very thin stuff
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
00:15:45.920
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
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,
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
00:21:46.160
or when Trump took office, he said, look, we're not going to lock up Hillary Clinton. That's not
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.