Truth Podcast - Vivek Ramaswamy - Jed Rubenfeld a Legal System that Encourages Political Subversion of the Law | The TRUTH Podcast #51

00:00:00.000 Arguably the single defining issue of the 2024 presidential election is not one that anybody anticipated a year ago.

00:00:15.000 And it isn't one that has ever been the major issue of a race until this year's election.

00:00:20.000 The first time in American history that lawfare and the politicization of the justice system is the singular most important issue facing voters.

00:00:30.000 And here's why.

00:00:32.000 You have a former president of the United States and the current frontrunner, presumptive nominee for the Republican Party.

00:00:37.000 That is the subject of not one, but four ongoing prosecutions.

00:00:42.000 And one prosecution that has at least in its first trial before appeal reached a conviction that could land the 45th and likely winner of the 47th slot for president of the United States in jail ahead of the election.

00:00:56.000 That's why.

00:00:57.000 Now, this is a president who actually delivered criminal justice reform himself, in part recognizing some of the failures of that criminal justice system as applied to other citizens.

00:01:05.000 But this time, in a full circle, it's been applied to him.

00:01:09.000 This isn't about Donald Trump.

00:01:11.000 It's about every citizen in the United States of America.

00:01:13.000 Because if they can do it to Donald Trump, They can do it to you.

00:01:17.000 Breaking down that first case is worth it, because many people, even many of my center-left friends, many friends who are disengaged from politics, don't really understand what the case is about.

00:01:27.000 All they understand is that one of the two major candidates for US president is, as MSNBC will remind you, a convicted felon.

00:01:35.000 But when you dive into the details of the case, whether you're Democrat or Republican, It's appalling that quite literally that former president was convicted of a crime that a majority of the jurors were told they did not even have to agree on what the underlying federal felony really was that served as the basis for a state conviction.

00:01:56.000 We're going to talk about that in detail in today's episode.

00:01:59.000 But just take the backdrop facts as we know them.

00:02:01.000 You have a judge whose daughter was a Democratic partisan operative that was fundraising for the Democratic Party, using Trump's New York trial as a basis for fundraising while her own father was presiding over that trial.

00:02:17.000 You have a prosecutor in that case who ran for political office on the promise of going after one man, Donald Trump, without specifying exactly what crime he'd go after him for.

00:02:28.000 And when he did go after Donald Trump, he went after him for a crime that, according to state law, was outside of the statute of limitations and was also a crime that was at most a misdemeanor.

00:02:39.000 Unless it was also charged with an underlying nexus to what was a federal crime of alleged campaign finance violations, the best sort of underlying upcharge to a felony basis they could come up with.

00:02:50.000 And yet that alone was one was based on flawed premises of its own right, where if Donald Trump had actually used campaign funds rather than personal funds to make a personal hush money payment, that's what they'd be going after him for instead.

00:03:04.000 They were going to get him going or they were going to get him coming.

00:03:07.000 This raises deep issues for the future of our country.

00:03:09.000 Are we going to become some kind of banana republic, third world nation, where the party in power uses prosecutorial force against its political opponents in the middle of an election?

00:03:18.000 If this is the first time it's happened now, well, mark my words, this won't be the last time we set a dangerous precedent for, frankly, both sides to be able to use this kind of prosecutorial power against their political opponents.

00:03:30.000 Are we going to use novel legal theories in the process, ones that have never been used against ordinary criminal defendants to do it?

00:03:37.000 Is this the path we're headed down?

00:03:39.000 Are we destined for that fate?

00:03:41.000 Or is there a way out of it?

00:03:43.000 And I think the best way out of it, first of all, is to understand the essence of what's actually happening here.

00:03:49.000 Not through the lens of partisan drivel.

00:03:51.000 Not through the lens of canned political speeches.

00:03:53.000 You'll get plenty of that in a lot of places on cable television or elsewhere.

00:03:57.000 But through actual analysis of the law.

00:04:00.000 Forget who the defendant is.

00:04:02.000 It could be Joe Biden.

00:04:03.000 It could be Donald Trump.

00:04:03.000 It could be an ordinary American on a given day.

00:04:06.000 What's the actual law at issue here?

00:04:08.000 What are the actual facts at issue here?

00:04:10.000 How can we be certain this is an actual politicized pursuit rather than just the ordinary carriage of justice?

00:04:16.000 And even if it is a politicized pursuit here and a miscarriage of justice, how certain are we that that miscarriage of justice isn't systemic in America against the backdrop of a criminal code that has proliferated like a cancer in terms of the number of laws, often vague laws, that allow prosecutors to make up the law as they go along?

00:04:34.000 Is it just Donald Trump they're doing it to?

00:04:36.000 Or are they doing it to ordinary Americans on the left and on the right on a daily basis?

00:04:41.000 These are questions that merit thoughtful answers, not just partisan political answers.

00:04:46.000 And that's why today I've invited an old friend of mine, a brilliant legal mind, former law professor who overlapped with me when I was at Yale Law School.

00:04:54.000 He's still at Yale Law School today.

00:04:56.000 Jed Rubenfeld, a man who has thought deeply about the Constitution, about criminal law, and about the Trump cases, not just as they relate to Donald Trump, But as they relate to every American.

00:05:08.000 That's why I welcome him on the podcast today.

00:05:10.000 Jed, it's great to see you.

00:05:11.000 Hey, great to see you too.

00:05:13.000 Thanks for having me.

00:05:14.000 So I know you have taken a detailed look at the Trump conviction in New York.

00:05:19.000 I'd like to start there as a bridge to a deeper conversation about what this means for citizens across the country.

00:05:26.000 But let's start with the Trump New York conviction.

00:05:29.000 I want to break this down for us.

00:05:30.000 I saw a video of you.

00:05:31.000 I thought it was excellent.

00:05:32.000 That's what prompted me to have you on this particular podcast where you explained what was really going on in layman's terms.

00:05:39.000 I'll turn it over to you.

00:05:41.000 Tell us about what this conviction actually was about in legal terms for the everyday citizen.

00:05:49.000 Yeah, that's exactly what I try to do in the video that you just mentioned because You know, it's very unusual.

00:05:56.000 Normally in a criminal case, at the end of the case, if the jury comes to a guilty verdict, you know what they've been found guilty of.

00:06:05.000 They were charged with robbing a bank on such and such a day, and the jury finds them guilty, and nobody's confused about what they were charged with or what they were found guilty of.

00:06:13.000 In this case, you can ask 100,000 people, and all but one of them won't be able to tell you what on earth Former President Trump was just found guilty of.

00:06:22.000 And lawyers, too, are confused about it as well.

00:06:26.000 So what I've tried to do is just explain what the heck happened in the case.

00:06:31.000 And here it is in simple terms.

00:06:35.000 Was Trump charged with unlawfully having an extramarital affair?

00:06:41.000 No, of course not.

00:06:41.000 That's not criminal.

00:06:43.000 Was he charged with paying hush money unlawfully to cover up that affair?

00:06:48.000 No, because that's not criminal either.

00:06:50.000 What was he charged with?

00:06:51.000 Well, here was a charge.

00:06:54.000 It's a two-step crime.

00:06:56.000 New York says he falsified business records.

00:06:59.000 What business records?

00:07:01.000 Well, it turns out his then lawyer, Michael Cohen, pays $130,000 to Stormy Daniels to hush her up, to get her to sign an NDA so she won't publish her allegations about having had an affair with Trump.

00:07:16.000 That's 2016. Then 2017, Trump starts reimbursing Cohen in monthly installments, pays him back for that $130,000, and pays him some money on top of that for, you know, his services.

00:07:31.000 And those payments, those generate, you know, check stubs and bookkeeping entries.

00:07:37.000 Does it monthly for the year of 2017. That's how you end up with 36 different And if you've heard there are 34 counts in the case, that's how you get to 34 counts.

00:07:49.000 Now, every one of those bookkeeping entries was listed as payment for legal expenses.

00:07:57.000 And believe it or not, at the heart of this case, it starts with the claim by the state that That those weren't legal expenses.

00:08:06.000 Those were hush money campaign expenses.

00:08:10.000 You were actually paying Stormy Daniels money to help your campaign.

00:08:14.000 So those aren't legal expenses.

00:08:16.000 Those are campaign expenses.

00:08:17.000 So the first claim in the case is that's a false business record.

00:08:20.000 And if you don't think that's false, there's no case.

00:08:24.000 So the state says those are clearly false statements and a lot of people...

00:08:28.000 Have agreed with that and say, yeah, it's a campaign finance expense.

00:08:32.000 It's a hush money campaign expense.

00:08:35.000 It's not a legal expense.

00:08:36.000 Other people on the other side say, what are you talking about?

00:08:39.000 He's paying his lawyer for doing what lawyers do.

00:08:41.000 Of course, it's a legal expense.

00:08:42.000 That's the first issue.

00:08:44.000 But that's not the sole charge.

00:08:46.000 It's a two-step crime.

00:08:48.000 Falsifying business records, which by itself would just be a misdemeanor, And Bragg, the District Attorney, could not charge just the misdemeanor because the statute of limitations had run on the misdemeanor.

00:09:00.000 So what he does, he says, I'm going to charge with the felony.

00:09:04.000 Falsifying business records in order to conceal a second crime.

00:09:09.000 That's a felony.

00:09:09.000 Statute of limitations had not run.

00:09:11.000 But what was the second crime?

00:09:13.000 And that's where things got interesting because the indictment didn't say.

00:09:18.000 There was not a word in the indictment about what that second crime was.

00:09:22.000 And, you know, Bragg gave an interview that day when the indictment was unsealed and said, oh, under New York law, I don't have to tell them what the second crime was.

00:09:28.000 I don't have to say.

00:09:29.000 So the indictment never said.

00:09:31.000 Documents filed right after the indictment didn't say.

00:09:33.000 And, of course, the Trump team asked for a document called a Bill of Particulars saying what was second crime.

00:09:39.000 And the state would not specify, would not identify and commit itself to a second crime.

00:09:47.000 The judge, Judge Mershon, in the case specifically held, this is back in February, they don't have to.

00:09:52.000 He said, I'm looking at New York law, and they don't have to commit in advance to the second crime.

00:09:56.000 Let's just pause on that for a second.

00:09:59.000 Does that strike you as, first of all, we could talk about bizarre, but second is, let's talk about the legal foundation for that.

00:10:04.000 The essence for charging a felony, the defendant isn't actually told what that felony is he's actually being charged for.

00:10:11.000 What do you make of that?

00:10:14.000 Great.

00:10:14.000 Well, so then you get to the question of whether that's constitutional.

00:10:19.000 Does it raise some constitutional issues?

00:10:20.000 And it sure does, Vivek.

00:10:22.000 Under the federal constitution, it's a Sixth Amendment question.

00:10:26.000 The Sixth Amendment to the United States Constitution guarantees to every accused in every prosecution, state or federal, the right To be told what the charges are against him.

00:10:36.000 And the Supreme Court has said for a century and a half, he's got to be told specifically what the specific charge is.

00:10:49.000 And there's a very serious question about whether that indictment satisfied the Constitution.

00:10:58.000 In fact, it's pretty clear it did not.

00:11:01.000 The Second Circuit has held that Very explicitly that when a defendant is charged with a crime, a two-step crime of the kind that I described, an offense which turns on the violation of another statute, the indictment has to say what the other statute is.

00:11:18.000 And that's in a case called United States versus Piro, P-I-R-R-O. And that's, you know, very clear holding from the Second Circuit.

00:11:26.000 Now, what the state's going to say is, Well, hang on.

00:11:31.000 We filed a brief with the court back in November, and we said, here are the possible second crimes, and they listed four different theories.

00:11:40.000 So then the question becomes, well, when they listed four different theories of what the second crime might be in this legal brief, is that sufficient to satisfy the Constitution's requirement of notice?

00:11:54.000 All by itself, it's not clear that that would be, but there was a deeper problem.

00:11:59.000 One of those theories, one of the four theories, was that the second crime, the crime that Trump had allegedly concealed by allegedly falsifying the business records, was a violation of a New York election statute.

00:12:14.000 And guess what?

00:12:15.000 That's the theory.

00:12:17.000 That's the second crime that the state eventually Honed in on and said, that is a second crime.

00:12:22.000 By the end of the trial, they said, that's a second crime.

00:12:25.000 And the jury was instructed, that's a second crime.

00:12:28.000 Now, in that crime, that crime says it's a criminal offense to try to influence an election through unlawful means.

00:12:37.000 So it's another two-step statute.

00:12:39.000 It says it's criminal to do something perfectly lawful, try to influence an election, if you do something illegal to do it.

00:12:47.000 And in other words, that theory of the second crime opened up and required a showing of a third crime.

00:12:53.000 And again, they'd never specified what that third crime was.

00:12:57.000 They threw out a bunch of theories, and in the end, the instructions to the jury said, you don't even have to decide unanimously on what that third crime, what the unlawful means were.

00:13:09.000 And that's the way things ended.

00:13:10.000 Let me just say for your listeners, That the fact that the jury instructions identified for sure with definiteness the second crime, that doesn't cure the Sixth Amendment problem because the Sixth Amendment right is a right to be told in advance of trial, of course, to be told in advance of trial the charges against you.

00:13:30.000 Because the whole point is to Prepare the defendant to meet his charges so that he can prepare his defense.

00:13:39.000 You don't cure a Sixth Amendment problem by telling the defendant at the end of the trial what he's charged with.

00:13:44.000 You've got to satisfy that by telling him before the trial.

00:13:48.000 And you're saying the jury did come back with a specific second crime that was the unanimous basis?

00:13:55.000 They were instructed in the jury instructions Very last day, jury instructions, here's a second crime.

00:14:01.000 The second crime's got to be the New York election law offense.

00:14:05.000 By the way, you read those- Why was it only the last day?

00:14:08.000 Because wasn't there some initial instruction where they were given that they didn't have to unanimously agree on what the crime was?

00:14:14.000 Well, it's so interesting.

00:14:15.000 You know, people read these instructions and everybody was confused.

00:14:19.000 And many journalists reported that even the jury instructions didn't tell the jury what the second crime was and left it open and said, you don't have to be unanimous.

00:14:30.000 Politico reported that.

00:14:31.000 It was reported all over the place.

00:14:33.000 And that's because jury instructions are confusing.

00:14:36.000 And I'm telling you, there is no way that that jury heard, you know, over an hour of jury instructions A lot of people got to see those jury instructions in print and couldn't understand it.

00:14:46.000 But if you do read the jury instructions in print, and you read them really carefully, and I promise you, I doubt very much the jury understood this, but what happened was, yes, the jury instructions said, here's a second crime.

00:14:57.000 The second crime, we know what it is now.

00:14:59.000 It's got to be this New York election law offense.

00:15:02.000 And the New York Election Law statute says it's a crime to try to influence an election through unlawful means, opening up the necessity of a third crime.

00:15:10.000 And it was that third crime, the unlawful means, the violation of some other statute, that's where the judge told the jury, hey, you don't have to be unanimous on that.

00:15:18.000 I'm going to give you a bunch of theories of what that third crime might be, and you don't even have to be unanimous.

00:15:22.000 Four of you can think one thing, four of you another, no problem.

00:15:26.000 Whether it was the second crime or the third crime in the chain, though, there was still an ambiguous predicate crime that the jury did not have to unanimously agree on, even in delivering its verdict.

00:15:34.000 So your point is, yes, that could have never cured the Sixth Amendment problem with the initial indictment in the first place, and that's true. 0.70

00:15:42.000 But it's not like even if that could be in some way cured or mitigated, it's not like that actually happened at the stage of the conviction anyway, because they were instructed that they didn't have to know what a certain part of that underlying predicate crime was, even for the New York election law.

00:15:54.000 The Trump team, Trump's lawyers, were left having to guess right up to after a year of litigation, having to guess and speculate on the first day of the trial exactly what charges the state was going to try to prove against them.

00:16:07.000 That's not the way things are supposed to work.

00:16:09.000 At the very end of the day, the jury was left with a number of theories of what the actual offense might be.

00:16:18.000 The third, what I've been calling the third crime, the unlawful means of trying to influence an election, which thereby is supposed to generate A New York election law violation, which is then supposed to be the second crime that Trump allegedly concealed.

00:16:35.000 And if this is confusing to an audience here listening to a well-spoken law professor laid out for you, imagine a jury in, I've been to that courtroom, a stuffy oxygen deprived Manhattan third world chamber after weeks upon weeks of trial with the judge verbally leading you these instructions and sending you into a back room.

00:16:55.000 Which raises the question of if you are going to go after a former U.S. president for the first time in American history with a criminal conviction in the middle of an election while he's a frontrunner to win that election, should you be using a legal theory or basis or jury instructions that an ordinary citizen has no idea what they mean in the first place?

00:17:16.000 What's the both legal and moral backdrop for that in this case?

00:17:24.000 Yeah, I think you're really hitting the nail on the head.

00:17:26.000 I think it's a very serious problem.

00:17:29.000 You got a prosecution being brought by an elected district attorney from the Democrat Party, and he's bringing that prosecution against the poll-leading candidate for the other party.

00:17:42.000 And you got to be so careful when that happens.

00:17:48.000 You got to make sure it's being done lawfully and constitutionally.

00:17:52.000 Otherwise, it's just a tremendously dangerous precedent for the country.

00:17:57.000 If we go down that road and that becomes the norm, this is...

00:18:02.000 It's a sure road to a constitutional crisis and a corruption of the legal system.

00:18:06.000 So one question is, should you even be allowed, should the prosecutor be allowed in cases like that to use a novel legal theory of a crime?

00:18:13.000 And I should tell your listeners, that happens in the criminal legal system not that infrequently.

00:18:19.000 New theories of how a criminal statute apply, that's not by itself unconstitutional.

00:18:27.000 But when you use a novel legal theory in this kind of highly charged political environment, I wish there was a doctrine that said you can't do that.

00:18:34.000 And because it's a former president, you could have a doctrine like that as a matter of presidential immunity, which might especially apply to Trump.

00:18:44.000 But I'm more worried about the going forward, dangerous president Of local prosecutors going after leading presidential candidates or, you know, just candidates whom they oppose.

00:18:55.000 You cannot have that in a functioning, healthy legal system.

00:18:59.000 And then, you know, maybe we need special rules that, look, in this context, you cannot be using a statute in a way it's never been used before because Bragg was, in fact, doing that.

00:19:08.000 And by the way, you're seeing that in the January 6th prosecutions, too.

00:19:12.000 What about that?

00:19:13.000 Yeah.

00:19:14.000 Well, you know, some of those prosecutions are just trespass and You know, pushing somebody.

00:19:19.000 And, you know, those are standard, you know, simple crimes to allege and prove if you can prove them.

00:19:27.000 But the main charge in hundreds of those cases is a violation of this statute 1512, a federal statute.

00:19:35.000 Which has never before been used to prosecute somebody who did anything other than tamper with documents.

00:19:43.000 It's a statute that was passed by part of the Sarbanes-Oxley business, and what it says is you can't obstruct an official proceeding by tampering with documents, mutilating documents, hiding documents, altering documents, or otherwise obstructing a proceeding.

00:20:01.000 And believe it or not, it's that word otherwise that's creating all the problems.

00:20:04.000 Because the Department of Justice is saying otherwise, that means forget the documents.

00:20:09.000 It doesn't have to be a documents case at all.

00:20:10.000 If you're trying to obstruct a proceeding in any way, shape, or form, you're guilty under this statute.

00:20:16.000 And guess what?

00:20:17.000 That's a 20-year sentence.

00:20:19.000 You know, compare that to the insurrection statute, which these people are not being charged under.

00:20:24.000 That's a 10-year sentence.

00:20:26.000 Sarbanes-Oxley has a 20-year sentence, and it had never been used before to go after somebody who hadn't tried to obstruct a proceeding through anything other than tampering with documents.

00:20:39.000 So, novel use.

00:20:41.000 And, of course, they've charged President Trump with the same thing in his January 6th prosecution.

00:20:47.000 So you raise an interesting question.

00:20:49.000 I worry about the implementation of it, to say that in certain categories, like when a prosecutor or a local prosecutor is going after a candidate or a federal candidate, there should be greater constraints on the use of novel legal theories in prosecution.

00:21:04.000 You could talk about the implementation of that, is that through departmental prosecutorial guidelines, but at least something that codifies a guardrail or a restraint to stop that from happening.

00:21:13.000 Yeah.

00:21:14.000 However, that would be a difficult problem to define of what that category really is, because you brought up the January 6th cases.

00:21:21.000 None of those people are running for, most of those people at least are not running for elected office, and that's not the context for the prosecutions.

00:21:27.000 So just for a second here, even if these are talking about departmental prosecutorial guidelines, what would be that category where you would at least guide prosecutors to say they shouldn't be going after somebody with a novel legal theory, if what?

00:21:41.000 What would it be exactly?

00:21:43.000 Well, you're asking all the right questions, and I don't know if they can be answered.

00:21:47.000 I'll tell you this.

00:21:48.000 Departmental guidelines are not the answer.

00:21:50.000 They're not going to do it.

00:21:51.000 Why?

00:21:51.000 Because, you know, if you've got a single Department of Justice, then you can have departmental regulations.

00:21:56.000 You put them under some, you know, guidelines.

00:21:59.000 But that's not the problem.

00:22:00.000 You've got thousands of elected prosecutors in this country.

00:22:03.000 I'm talking about thousands.

00:22:05.000 County prosecutors, district attorneys all over the country.

00:22:08.000 And that's what happened in this Trump hush money case.

00:22:11.000 You got a Manhattan district attorney coming after the leading candidate from the other party.

00:22:18.000 And you could have county prosecutors in Texas, Alabama, California, Washington state.

00:22:24.000 Each one of them could decide to prosecute, find some crime to prosecute the leading candidate from the other party, tie them up in a criminal prosecution, maybe sentence them, get a local jury to sentence them to a couple months in jail.

00:22:37.000 It's crazy.

00:22:40.000 So you can't handle this through departmental regulations.

00:22:42.000 I wish there were a doctrine.

00:22:44.000 There is no such doctrine.

00:22:46.000 I wish that we had a doctrine.

00:22:48.000 You know, you're asking the right questions about it.

00:22:50.000 How would it work?

00:22:51.000 How would you define it?

00:22:52.000 But I got to tell you, there is no such doctrine.

00:22:54.000 So, you know, I just speculate.

00:22:56.000 Now I can tell you, though, in the January 6th case, that case is up before the Supreme Court now.

00:23:01.000 It's a case called Fisher.

00:23:02.000 They're going to decide at this term.

00:23:03.000 They're going to decide whether that word otherwise can be expanded to cover this case.

00:23:08.000 For the January 6th defendants, but they won't get the benefit of any special rule about, you know, novel use of legal theories.

00:23:15.000 The court will decide whether this particular novel legal theory was simply too expansive.

00:23:20.000 Just expanded that statute too far, and we're not going to allow it.

00:23:24.000 And when it comes to prosecuting Trump under that same charge, though, he might get a special rule under a doctrine called presidential immunity, because, you know, he was president when he made the statements and took the action question there.

00:23:43.000 We don't know what the Supreme Court's going to rule in the presidential immunity case, and we'll just have to see.

00:23:50.000 So that's one route to go.

00:23:52.000 It's an interesting discussion to say in certain categories of cases where for the health of a functioning constitutional republic, you want to make sure that political candidates aren't especially vulnerable to the use or abuse of novel legal theories against them.

00:24:05.000 That's an interesting strand and road to go down.

00:24:10.000 I'm more interested personally in whether this is also an occasion for us to take a step back and say that, you know what, whether they're doing it to Donald Trump or a political candidate or an ordinary citizen who's not running for office, is this the kind of thing a prosecutor should be doing in the first place?

00:24:25.000 And is this the kind of thing the law should give prosecutors the latitude to do by being written as broadly as they are?

00:24:31.000 To be able to use that statute from the Sarbanes-Oxley era and or otherwise A joinder. 0.94

00:24:38.000 To be able to go after somebody for a 20-year prison term, first of all, let's just take a look at the proportionality of what you just laid out.

00:24:45.000 That document tampering charge allows for a double 20-year-plus conviction versus engaging in what you would think about as insurrection or whatever you want to talk about it, violent crime that could have a 10-year maximum attached to it.

00:24:57.000 That itself seems backwards.

00:24:59.000 And yet we have seen a proliferation of the, you'd know better about this than I do on the exact facts, but the proliferation of the criminal code that has allowed for the breadth of these statutes to really be defined by prosecutors who use them.

00:25:12.000 And it strikes me, and President Trump has said this several times at a high level, he says, they're not going after me, they're going after you, and I'm the only thing standing in their way.

00:25:21.000 But I think there's a lot of truth to that to say that even if it isn't a political candidate for office or for U.S. president, the use of a statute where even if on appeal numerous judges in the Second Circuit or the U.S. Supreme Court disagree on the nature of the actual crime, should this be the stuff that we ever allow somebody to be thrown in prison over in the first place?

00:25:42.000 if judges themselves or legal scholars or law professors are left to debate what the actual underlying crime is or whether that actual underlying alleged crime actually falls outside the four corners of a criminal statute. - Yeah, I think you gotta break out two separate issues here. I think you gotta break out two separate issues here.

00:26:00.000 Should prosecutors be able to charge candidates, form presidents?

00:26:04.000 Yeah, they should.

00:26:06.000 I mean, nobody's above the law.

00:26:08.000 If somebody's committed a serious crime, and you got them dead to rights, and you got the evidence, you got the goods, and you do it lawfully, you do it constitutionally, nobody's above the law.

00:26:18.000 The problem is, and this is really what you're putting your finger on, Vague laws or the use of laws in new ways.

00:26:27.000 And that's where you create the issues.

00:26:29.000 We've got to somehow put a stop to the use of criminal laws in new novel ways, novel legal theories to achieve political ends.

00:26:44.000 And I'll give you a suggestion for how it might be done if you want to know doctrinally.

00:26:48.000 I can't answer all the great questions you're asking, but you've probably heard the word lenity.

00:26:52.000 Yep.

00:26:53.000 The rule of lenity.

00:26:54.000 The rule of lenity.

00:26:55.000 Criminal law doctrine says, you know what?

00:26:57.000 As a general rule in criminal law, we are going to interpret the terms of a criminal statute narrowly.

00:27:05.000 As narrowly as possible.

00:27:06.000 Not broadly, but narrowly.

00:27:08.000 Guess what?

00:27:09.000 That's not a constitutional doctrine.

00:27:11.000 Judges are not required to interpret the terms of a criminal law narrowly, but they are allowed to do it, and that's a traditional common law canon of construction, the rule of lenity, and that's a matter of some discretion.

00:27:25.000 And a doctrine could develop that said, look, If you've got a context where prosecutors from one party are going after people under circumstances that raise a suspicion that there could be political motivation behind it,

00:27:45.000 that there could be An attempt to prosecute people because of their political views or because they are your opponents, even though that evidence doesn't rise to the level of proving a selective prosecution claim so that you've got to throw the whole thing out, even if it doesn't rise to the level of retaliating against somebody for their political views,

00:28:04.000 so you've got to throw the whole case out, maybe it rises high enough to say, look, we're going to have a special rule of lenity here and we are not going to allow any kind of new expansive application of this criminal law.

00:28:17.000 So my only question is why, if we're talking about an expansion of the rule of lenity, and I'd love to talk about whether there is a constitutional hook for a sympathetic Supreme Court to import this into constitutional doctrine, but why limit that to the instance of politicized prosecutions?

00:28:37.000 In a certain sense, I guess the case I'm interested in, and I've had a longstanding interest in this, is For the listeners to understand, it is entirely possible for someone to be charged, let's take a discussion and make it a federal crime, with a federal crime, a violation of, it could be drug law, white collar statute, whatever it is.

00:28:55.000 And it makes its way through the courts and it goes to the Supreme Court on appeal to say that, is this person, is what this person did a violation of the law or not?

00:29:04.000 Right?

00:29:05.000 And you see this context come up from time to time.

00:29:07.000 You have novel, let's say you see it in the business context a lot, for example.

00:29:10.000 And this is similar to the kind of white-collar context you could call this a white-collar crime for Trump.

00:29:15.000 Same category.

00:29:17.000 Where the Supreme Court could come down five to four saying that it is indeed a crime.

00:29:21.000 And you'd have four Supreme Court justices who would write eloquent dissents.

00:29:26.000 Could each have four different individuals on the Supreme Court that dissent on whether or not the alleged defendant did actually violated the law.

00:29:35.000 And because it was four rather than five who came down on that side, that person should still go to prison and would still go to prison.

00:29:43.000 It strikes me as fundamentally unjust.

00:29:46.000 And it comes up in the Trump context here, where law professors and judges, and this isn't going to be appealed through the Second Circuit, but if it was, they would probably find a Sixth Amendment violation on the notice grounds alone.

00:29:58.000 But you could even say it for the predicate crime, not knowing what it is and objecting to the use of that predicate crime.

00:30:04.000 Where you're throwing somebody in prison where judges and legal scholars themselves disagree on whether or not the alleged act violated a law.

00:30:15.000 It seems to me that whether or not you're a political victim of persecution or whether you're just an ordinary victim of prosecution, you in that instance should not be going to prison for An act that jurists themselves reasonably could not agree was a violation of the law or not.

00:30:35.000 What's your perspective on that?

00:30:36.000 Could that be a doctrine where effectively, this is a contortion, I don't think the law ordinarily works this way, but if you have a dissenting judge on appeal or judges on appeal where the judge themselves disagree on whether or not A particular act violated the law,

00:30:52.000 that at least in that case, maybe prospectively, the public is on notice that that violates the law, but at least in that case, that person should not actually go to prison over something that a judge, if he was in the same position, would have also agreed the act did not violate the law.

00:31:09.000 You know, very interesting.

00:31:11.000 What you're talking about would be an expansion of what is called the void for vagueness doctrine in criminal law.

00:31:19.000 If a criminal law is too vague, it's unconstitutional, can't be applied.

00:31:26.000 But it's got to be super vague before that doctrine is triggered.

00:31:32.000 I'll give you an example.

00:31:33.000 The problem is laws are always a little vague.

00:31:36.000 I hate to say it, but everybody in the law knows it's true.

00:31:39.000 And so they always require interpretation.

00:31:43.000 An example is antitrust law.

00:31:45.000 Antitrust law is criminal as well as civil.

00:31:49.000 You're going to like this one, Vivek.

00:31:51.000 You could have a theory that big asset managers, by owning lots of different Stock and lots of different competing companies that there's actually an antitrust law violation going on there.

00:32:05.000 And judges would have to decide that.

00:32:07.000 And, you know, if it's a new case, you know, you could have a doctor as well, you know, maybe only civil liability, but there can't be criminal liability.

00:32:15.000 That would be interesting.

00:32:16.000 But we don't have that doctrine right now.

00:32:19.000 What we have is a doctrine that Judges interpret criminal laws and their application just the way they do civil laws.

00:32:27.000 The rule of lenity kicks in and it has just the effect you're saying.

00:32:32.000 When it applies, it's there for just the reason you're saying.

00:32:36.000 But so far, it's not been viewed as constitutional.

00:32:38.000 I'll give you an example.

00:32:39.000 The RICO statute, very complicated statute.

00:32:43.000 All of these terms in it, you know, enterprise.

00:32:45.000 It uses the term enterprise.

00:32:47.000 And judges had to decide whether a labor union was an enterprise.

00:32:51.000 And Rudolf Giuliani brought these cases saying labor unions is an enterprise.

00:32:54.000 And it was a novel use of RICO. And he won cases on that basis and did more to get the mob out of unions in New York City than anybody had ever done before because he came up with a novel use of the RICO statute.

00:33:07.000 And he was, you know, I think rightly, Celebrate for that.

00:33:15.000 The RICO statute has a provision.

00:33:17.000 You'll like this, Vivek.

00:33:18.000 It has a provision that says the rule of lenity does not apply.

00:33:21.000 Really?

00:33:22.000 Wow.

00:33:23.000 It's in the statute.

00:33:24.000 Yes.

00:33:25.000 And the courts have looked at that and said, hey, is that constitutional?

00:33:27.000 And the courts said, yep.

00:33:29.000 If Congress wants to get rid of the rule of lenity, that's just a canon of construction.

00:33:33.000 That's not constitutional.

00:33:34.000 They can do it.

00:33:37.000 You could reverse that.

00:33:38.000 I mean, the court could say, you know what?

00:33:40.000 We were wrong.

00:33:41.000 The rule of validity is a constitutional doctrine, and we hereby announce that terms in criminal statutes must be applied narrowly, and we're going to reverse that decision.

00:33:55.000 But for now— That was a Supreme Court decision.

00:33:58.000 Well, you know, as I sit here right now, I cannot remember whether it was— Yeah, that's interesting.

00:34:03.000 But by the way, I think it is.

00:34:04.000 I think the Supreme Court said, yep, That elimination of the rule of liberty is a constitutional move by Congress.

00:34:12.000 Now, that actually raises an interesting legal question in its own right, right?

00:34:17.000 If Congress had to do it, now I have an anaphylactic reaction.

00:34:21.000 You can hear me sneezing here, not just because of my allergies, but because I'm allergic to what we just heard of Congress's ability to write a law so vague to say that It's a criminal law and we want it to be vague.

00:34:33.000 We actually recognize that it is so vague that we're going to put in the statute that the rule of lenity from the common law does not apply because it's so obvious that that's the way this statute is going to be abused.

00:34:45.000 But put that to one side, the fact that Congress had to do it in that case suggests, or could at least argue in favor of, the fact that any other law where they haven't put it in there suggests that the rule of lenity does apply.

00:34:56.000 What's your take on that?

00:34:57.000 Not necessarily?

00:34:58.000 Oh, sure.

00:34:59.000 No, you could go that way.

00:35:00.000 And the fact, you can find cases going back 100 years from the Supreme Court that stayed a position very close to the one you're advocating.

00:35:08.000 The Supreme Court has said 100 years ago, if reasonable men have to speculate about the meaning of a criminal law, the law cannot be applied in the way to punish somebody.

00:35:20.000 If reasonable people could differ about whether the law, a criminal law, meant X, then you can't put somebody in jail for doing X. So you can find cases that say that.

00:35:35.000 That is not current doctrine.

00:35:37.000 It hasn't been a doctrine for a long time.

00:35:40.000 The void for vagueness doctrine is now more like something like this.

00:35:44.000 If law-abiding people are not able, under a statute, to To be confident that they're avoiding criminal liability, then a law is too vague and can be struck as void for vagueness.

00:36:02.000 Like some loitering law that's written in a way you're walking down the street, you don't know whether you're guilty of loitering or not.

00:36:08.000 The only way you could avoid being liable is to never go out of your home or your apartment.

00:36:13.000 That kind of law is unconstitutional void for vagueness, but merely having to speculate, the court has abandoned that doctrine decades ago.

00:36:26.000 To be clear, the approach I'm advocating for, at least for the purpose of this conversation that I'm advocating for, is not even whether reasonable men would have to speculate on it, because reasonable men may not have a great knowledge of the law.

00:36:38.000 Mm-hmm.

00:36:39.000 I'm sympathetic to that framing of it, but that's not even what I'm arguing for.

00:36:43.000 What I'm arguing for is more humble than that.

00:36:45.000 If jurists, if professionally trained judges themselves have to speculate and go further, let's actually say professionally trained jurists disagree on whether said act violates the law, that just should not be a circumstance where you throw somebody in prison.

00:37:00.000 It seems fundamentally unjust.

00:37:01.000 I think every American would agree.

00:37:03.000 That if judges wearing these robes that have gone through extensive legal education that we charge with interpreting complicated statutes to particular cases, if they themselves, even Supreme Court justices, cannot amongst themselves agree on whether said act violates the law, we have no business throwing somebody in prison over it for the same kind of reason.

00:37:25.000 That we require the standard of beyond a reasonable doubt on the facts of whether or not somebody committed a crime.

00:37:31.000 That's the difference between a criminal conviction and a civil conviction standard.

00:37:34.000 In the criminal context, if you're being thrown in prison, we require you to have found that finding of guilt Beyond reasonable doubt.

00:37:44.000 And it seems like the same instinct that informs that heightened standard to say before you're thrown in prison, you're found guilty beyond reasonable doubt, should also be beyond the reasonable doubt of jurists, where if there's a dissenting judge who thinks what you did didn't violate the law, not the facts of the case, but on the actual law of it, you shouldn't be thrown in prison.

00:38:05.000 For the same basic principle that's at issue there.

00:38:08.000 Do you understand what I'm saying?

00:38:10.000 Absolutely.

00:38:11.000 And it's fascinating.

00:38:13.000 Reminds me of what it's like for me to be a professor and have a brilliant student in class.

00:38:18.000 But, you know, one thing to think about on that is, you know, criminal laws that are drawn in terms of standards.

00:38:29.000 And, you know, I know you know what I'm talking about, like negligence or recklessness.

00:38:34.000 And let's say you completely agree about the facts of what the defendant did.

00:38:38.000 Somebody's got to decide whether that was reckless conduct.

00:38:43.000 And a lot can turn on that.

00:38:44.000 You can go to jail for it.

00:38:46.000 It becomes a different crime.

00:38:48.000 You know, reckless homicide versus negligent homicide.

00:38:50.000 And guess what?

00:38:51.000 Reasonable people are going to differ on whether certain conduct That amounted to recklessness.

00:39:01.000 To make your position stick, Vivek, you'd need either to have a different rule in those cases, because I don't think we could have a rule that if one judge dissents, You can't criminalize it.

00:39:17.000 Somebody's got to decide, and people are often going to differ about that kind of thing.

00:39:22.000 Maybe you could have a rule at certain standards like that.

00:39:25.000 Well, can I just pause on that for one second?

00:39:28.000 You could revert to a civil penalty in that case, right?

00:39:31.000 So to say that the judge disagrees on whether what you did violates the law or not, but if a jurist Disagrees on appeal, an appellate court judge or higher, disagrees on what you did, violates the law.

00:39:47.000 Then in that case, the scope of your penalty is at least limited to the same standard we apply for civil penalties on the facts, which is preponderance of the evidence.

00:39:55.000 Here's a preponderance of understanding of the law, where if a reasonable man, if you use A jurist's disagreement as a proxy for saying that reasonable men have to speculate, then in that case, we're at least back in the civil territory, but you're no longer being put in prison over it.

00:40:11.000 Doesn't that seem like a doctrine you could just generally apply to say that if after the fact on appeal, a judge disagrees, an appellate court judge or a Supreme Court judge disagrees on what you did actually applied to a criminal violation, Then, in that case, you're looking at most civil penalties rather than criminal.

00:40:29.000 Is that something that you view as feasible or applicable in that case?

00:40:33.000 Well, I wouldn't be inclined to support that.

00:40:36.000 It's really interesting.

00:40:38.000 But there's another way to handle it.

00:40:40.000 Normally, a jury decides whether conduct was reckless, negligent.

00:40:46.000 So it's normally up to a jury to make that call.

00:40:49.000 Juries don't just decide the facts, they decide the brute facts, but they also apply standards like that, negligence, recklessness.

00:40:55.000 And if 12 jurors agree that it's reckless, The guy's going to jail for the criminal penalty of whatever it is, whether it's reckless homicide, reckless driving, they'll go to jail.

00:41:06.000 Now, is it possible that when it comes up on appeal to some judges, some judge will say, you know, I disagree with the jury on that.

00:41:13.000 I feel that this isn't reckless.

00:41:15.000 I'm a trained jurist.

00:41:17.000 I don't think this was reckless, but he's in the minority.

00:41:20.000 The other judges on the case say, yeah, we think it is.

00:41:22.000 What you could do there to avoid the...

00:41:26.000 I don't think you'd want to reverse the conviction.

00:41:28.000 Maybe you would, but you could solve this problem by saying, Where there's a jury verdict, 12 reasonable people have decided, and then the appellate judges cannot reverse just because, or you don't have to reverse the case just because one judge in the minority thinks he doesn't think it was reckless.

00:41:50.000 But if you were going to tell me, Vivek, that no, if one judge disagrees with the jury, a minority judge, then you've got to throw out the conviction, I wouldn't want to go that far.

00:42:01.000 You're talking about on the case of standards, right, of negligence or recklessness.

00:42:05.000 There are other cases in which whether the scope of the actual activity itself was in violation of the law.

00:42:11.000 What about in that instance?

00:42:12.000 Yeah, you could have a different rule for that.

00:42:14.000 You say, well, let's put aside these standard cases.

00:42:16.000 If I have to decide what counts, for example, as like an agreement to restrain trade under the antitrust laws, or I have to decide what counts as an enterprise for RICO purposes, you know, your problem is going to be like the first time the statute It gets applied.

00:42:33.000 Congress writes a statute.

00:42:34.000 I got to tell you, it's a feature of all laws.

00:42:37.000 When they're on the books, nobody knows what the heck they mean.

00:42:39.000 And the reason people can differ about it.

00:42:41.000 And so the first time you prosecute, folks are going to have a difference of opinion.

00:42:48.000 And you might have some problems with early prosecutions under new statutes.

00:42:52.000 Maybe you'd have a different set of rules, Vivek, if you're trying to work out this position for that.

00:42:57.000 Maybe you'd require Congress or the legislature has to define the terms carefully.

00:43:01.000 They're just not allowed to write a statute where they don't define the terms.

00:43:04.000 Maybe you could do something about that.

00:43:06.000 The first person that's charged, I suppose, on this, especially if there's a disagreement among jurists afterwards, that first person maybe can't go to prison.

00:43:13.000 Maybe they could pay a civil fine.

00:43:14.000 But after that, the public's on notice.

00:43:18.000 For me, I've probably...

00:43:21.000 I'm probably in a rare minority and being very fired up about this issue, but it strikes me as fundamentally unfair.

00:43:29.000 What's at the heart of the Trump case here as well is, Would Donald Trump or his attorneys or his general counsel at his firm been left to wonder whether they were doing what they were doing was a crime or not?

00:43:42.000 I think the answer to that question is yes, just as we're left to wonder today.

00:43:46.000 And I'm glad this case, for what it's worth for the American people, is getting the level of attention that it is.

00:43:53.000 But if Donald Trump had to wonder whether or not you're going to charge this as a campaign expense or you're going to charge this as a personal expense to know which one was the crime versus not.

00:44:02.000 And the irony is, had he gone the other way, there'd be an entire separate legal charge of misuse of campaign funds to make a personal hush money payment.

00:44:08.000 But if he's in that situation, it seems like, yes, it's especially bad for the future of our country for him as a presidential candidate to be able to deal with prosecution on that basis.

00:44:17.000 But it is also, at least in part, a...

00:44:24.000 It's diagnostic of a deeper problem in the criminal law that an ordinary citizen could find himself in that same position too.

00:44:30.000 And I just have very different attitudes of whether the scope of such punishment is civil, right?

00:44:35.000 If it's just talking about a financial or monetary penalty.

00:44:40.000 that we require you to have on the facts is a 50.1% preponderance of evidence standard for the same reason we can apply some level of tolerance for vagueness in the law of whether or not you're left holding the bag versus to say that you're going to have the ultimate restraint on your liberty, which is to be locked up at behest of police force to backstop it.

00:45:01.000 And in that instance, it feels to me that we should not.

00:45:04.000 And maybe you said it used to be Supreme Court doctrine.

00:45:07.000 Maybe I believe it should be too, that if reasonable men have to speculate on what a law means, they shouldn't be going to jail.

00:45:13.000 Is that something that Congress, I doubt it would ever be a popular enough cause to take up, but in theory, is that something a blanket sort of provision in the criminal code that Congress could adopt is to codify that to say that from hence, from this date certain forward, And criminal laws are going to be interpreted in conjunction with the rule of lenity, basically statutorily codify either the rule of lenity or the reasonable man speculation standard or even using a litmus test of a judicial dissent as a basis to do it.

00:45:43.000 This seems like the kind of thing Congress could do retroactively to the criminal code in whole.

00:45:48.000 Yes, it could, but of course only for federal crimes.

00:45:52.000 Yes.

00:45:52.000 You would not have the authority to do that for state crimes.

00:45:55.000 But just so your viewers and listeners are clear, in the Trump hush money prosecution, let's not forget, it wasn't just interpreting a statute.

00:46:05.000 It was what statute is he being charged under?

00:46:09.000 What offense, what crime is he being charged with?

00:46:12.000 The Supreme Court has said for over 150 years, a defendant has a right to know the specific offense with which he's charged.

00:46:19.000 That's fundamental to our criminal justice system.

00:46:21.000 We don't want to be living in the world of Kafka's the trial where folks are prosecuted, convicted without ever being told what the specific crime that they're being found guilty of was.

00:46:34.000 So that's different from this very interesting question of interpretation that you're raising.

00:46:40.000 Yeah.

00:46:41.000 And how do we deal with that problem?

00:46:45.000 Because there's a rabbit hole we went down on dealing with the question of interpretation.

00:46:51.000 But the broader question, how do we stop this from becoming the ordinary precedent in American politics?

00:47:00.000 To take this back to the political context where this becomes the new means by which we adjudicate who leads our country.

00:47:07.000 I'm worried about that, and I know you are too.

00:47:09.000 Very worried, very worried.

00:47:11.000 There's another doctrine that comes into play here that folks might be interested in hearing about.

00:47:16.000 Very difficult to prove.

00:47:17.000 It hasn't played a huge role.

00:47:19.000 Maybe it should play a bigger role in that, of course, the doctrine of selective prosecution.

00:47:24.000 What's that?

00:47:25.000 You're not constitutionally allowed to go after somebody.

00:47:28.000 The state District Attorney cannot prosecute somebody where the motivation for the prosecution is to go after them because they're a political opponent, because you don't like their political views, retaliation for their political policies, try to undermine their candidacy.

00:47:42.000 If that's the motivation for the prosecution, that's just straight up unconstitutional from the get-go.

00:47:46.000 Forget all this stuff we've been talking about.

00:47:48.000 Sixth Amendment, interpretation, rule of lenity.

00:47:51.000 Unconstitutional from the get-go.

00:47:52.000 And of course, many people feel that's just what Bragg was doing.

00:47:56.000 Many people feel.

00:47:57.000 And I'm talking about people on both the left and the right.

00:48:00.000 They sense that this prosecution would never have been brought if it hadn't been Donald Trump as a defendant and would never have been brought if Donald Trump hadn't been running for president again.

00:48:09.000 And a lot of people say it's completely clear that this is a politically motivated prosecution.

00:48:14.000 It should be unconstitutional from the get-go.

00:48:16.000 The problem is courts have made that claim very hard to prove.

00:48:20.000 And what they sometimes require is what they call a comparator.

00:48:25.000 It's like a comp in real estate value, a comparator.

00:48:27.000 You got to find us a very similar case where somebody did something very much like what they charged you with, but it was somebody on the other side.

00:48:38.000 Expressing different political views.

00:48:40.000 And if you can find us that case and they didn't go after those people, then maybe you can state one of these selective prosecution claims, otherwise forget about it.

00:48:48.000 And I'll give you an example.

00:48:50.000 Here's a great example.

00:48:50.000 It came out of the summer 2020, but this is a case just decided by the D.C. Circuit just last year.

00:48:56.000 So some pro-life protesters had a small protest in D.C., and they chalk up the sidewalk with one of their messages, something like, pre-born lives matter.

00:49:06.000 And they get arrested and they get charged and convicted of defacement of public property.

00:49:11.000 Can't chalk up a city sidewalk with your message.

00:49:13.000 And guess what?

00:49:14.000 Under, you know, the D.C. District of Columbia ordinance, defacement ordinance, they probably were guilty.

00:49:19.000 But the defendant said, hey, wait a second.

00:49:23.000 The folks down, this is summer 2020, down the street, there's a much bigger protest, the Black Lives Matter.

00:49:29.000 And they're not just chalking up sidewalks, but chalking up the streets and buildings with their message, Black Lives Matter.

00:49:35.000 And not a single one of them was prosecuted for defacement.

00:49:38.000 What are you doing?

00:49:38.000 And the D.C. Circuit, and this just last year, said, now that's a comparative.

00:49:44.000 And you can prove that.

00:49:45.000 You have just stated a case for selected prosecution.

00:49:48.000 And the amazing thing is, but of course, you're almost never going to find that.

00:49:52.000 That's almost never going to happen.

00:49:54.000 But there might be a comparative case like that in this Trump hush money prosecution.

00:49:58.000 Do you know about this?

00:49:59.000 You probably do.

00:50:00.000 Yeah, look, I think there are some other cases where you have interesting black and white instances.

00:50:06.000 I just want to understand this doctrine of- Let me just finish that one point.

00:50:11.000 Hillary Clinton was found by the Federal Election Commission In 2022, she was found that in that same election, 2016 presidential election, she spent money on the Steele dossier, the famous Steele dossier.

00:50:26.000 Oh, that's a great point.

00:50:27.000 I love that.

00:50:28.000 And they booked in their books, in the books of the Clinton campaign, they booked them as legal expenses.

00:50:33.000 And the FEC actually determined 2022 Those weren't legal expenses.

00:50:39.000 Those were campaign expenses.

00:50:40.000 And you falsely called them legal expenses.

00:50:42.000 And that's a campaign finance violation.

00:50:45.000 And the Clinton campaign was made to pay thousands of dollars in fines.

00:50:48.000 This is an actual determination by the FEC that seems to be a determination that they did exactly what Bragg was accusing Trump of having done.

00:50:59.000 That campaign was headquartered in New York, and there was no prosecution of them, not of Hillary or anybody associated with the campaign, for falsifying business records to cover up a campaign finance.

00:51:12.000 So that might be the comparator that could actually serve to prove a selective prosecution in this case.

00:51:17.000 I guarantee you that'll be exhibit one in the Trump team's appeal on their selective prosecution.

00:51:23.000 It should be.

00:51:24.000 I think that that's very compelling.

00:51:26.000 I didn't realize there's an FEC finding that says that Hillary Clinton's recording of the Steele dossier expense Was a legal expense, that that itself was an FEC violation, and yet she wasn't prosecuted for it.

00:51:40.000 Now, this doctrine of selective prosecution, where is that actually codified, right?

00:51:43.000 Is that a common law concept?

00:51:46.000 No.

00:51:46.000 What it is, is if they're coming after you for your, if you can show that they came after you because of your political opinions or your political activity, it's a First Amendment violation.

00:51:56.000 So that would be called First Amendment selective prosecution or First Amendment selective enforcement.

00:52:01.000 And under the Constitution, if we are talking about like what clause, it'd be a First Amendment violation.

00:52:07.000 And so, you know, state or federal doesn't matter at that point.

00:52:10.000 That's right.

00:52:11.000 Yeah.

00:52:12.000 That's fascinating.

00:52:13.000 And so the D.C. Circuit case, when did that come out?

00:52:16.000 Just last year, 2023. This is all relatively recent.

00:52:19.000 Yeah, it's called Frederick Douglass Foundation, I think, if you want to look it up.

00:52:24.000 That's very interesting.

00:52:25.000 And so I think that's also an interesting argument, not just the Sixth Amendment point that you raised before, but also this selective prosecution claim under the First Amendment.

00:52:37.000 Would they have the opportunity to appeal via federal courts?

00:52:40.000 I mean, this isn't normally going to go through a state appeal, but you brought up even the Second Circuit as a venue that had previously held the Sixth Amendment violation applies in context of failed notice to the defendant of what their crime actually is.

00:52:53.000 Given the vagueness around what the underlying crime really was or the third step of the cascade that you talked about earlier, if it still relates to a federal campaign finance, Allegation.

00:53:05.000 Are they limited to the New York system's Court of Appeals line, or are they actually able to get out and get into federal court for appeals here, too?

00:53:16.000 Normally, the way it works is they'd have to go through the state appellate courts.

00:53:21.000 They have to appeal to the appellate division.

00:53:24.000 Then appeal to New York's highest court, which happens to be called the Court of Appeals, but that's like New York's Supreme Court.

00:53:29.000 And only then could they appeal to a federal court, namely the United States Supreme Court.

00:53:33.000 And of course, that would take years.

00:53:36.000 And the United States Supreme Court would not issue a final ruling, potentially reversing this conviction until years after the election, which is a very serious problem.

00:53:47.000 You brand somebody a convicted felon, that could You know, change the outcome of the election.

00:53:52.000 That could affect the election of the next president of the United States.

00:53:54.000 And we'll never get a federal court to actually rule on these serious constitutional issues until long after the election.

00:54:02.000 That's, you know, in legal terms, that's irreparable harm.

00:54:06.000 And that's why I've said that, you know, if I were the lawyer for the Trump team right now, I'd be running to federal court right now, file suit under Section 1983 and say, you know, you've got to pause those proceedings.

00:54:20.000 In the state criminal courts, and we've got to give a chance for the federal courts to review these serious constitutional objections.

00:54:27.000 Now it gets harder and harder to do.

00:54:29.000 You know, once you've got the jury reaching a verdict, it gets harder and harder to claim that a federal court can hear this case.

00:54:35.000 You have to overcome certain abstention doctrines and other doctrines.

00:54:38.000 But I think there's actually some good arguments that in these extraordinary circumstances, a federal court should look at this to avoid irreparable harm.

00:54:48.000 And, you know, that can actually be done fairly quickly.

00:54:50.000 You move for a TRO, an emergency temporary restraining order.

00:54:54.000 Whichever way the judge comes out on that, you could appeal to the Second Circuit.

00:54:58.000 And whichever way the Second Circuit comes out on that, that could go to the Supreme Court.

00:55:01.000 That could all happen.

00:55:03.000 On a kind of a fast-track basis, I wish we could get a federal court to hear this because the country kind of needs that.

00:55:11.000 You can't just have this kind of thing resolved by New York courts deciding the case under New York law.

00:55:16.000 They should be looking at constitutional law, but so far, as far as I can tell, Judge Merchant hasn't really been doing that.

00:55:22.000 And could the Supreme Court itself make that determination right away?

00:55:26.000 Or, you know, ordinarily they would wait to run its way through New York, but they could just take and grant cert now.

00:55:33.000 Well, it's conceivable.

00:55:35.000 There are certain emergency doctrines you might try to take advantage of, but no guarantee.

00:55:40.000 I'll tell you what, though.

00:55:43.000 If another state sued New York, there's only one court in the country that has jurisdiction, exclusive jurisdiction, over a suit by one state against another, and that happens to be the United States Supreme Court.

00:55:56.000 They cannot bring their case in a state court, a federal district court.

00:56:01.000 You can only bring that case to the United States Supreme Court.

00:56:05.000 A state attorney general In principle, could bring a case against the state of New York right now and say, this is an unconstitutional conviction.

00:56:14.000 And we know what you're going to do.

00:56:16.000 It's very likely you're either going to incarcerate or impose probation.

00:56:19.000 That's very, very likely.

00:56:21.000 And that's going to hinder Trump from campaigning in our state.

00:56:27.000 And that gives us an injury.

00:56:29.000 And that gives us standing.

00:56:31.000 And we want to litigate whether this conviction was constitutional.

00:56:37.000 That's a long shot.

00:56:38.000 I kind of like that a lot, actually.

00:56:40.000 It's very interesting.

00:56:41.000 It could be done.

00:56:42.000 I mean, there are states, the citizens of that state are harmed by their ability to adjudicate who the president of the United States should be, which is the prerogative of voters, by New York stopping them from doing it.

00:56:53.000 Think if they incarcerated him.

00:56:55.000 The minute they incarcerate him, he cannot go to federal court anymore, and he's stuck in a jail waiting for the New York courts to decide if they're going to stay the sentence.

00:57:04.000 You don't know what's going to happen.

00:57:06.000 But if, God forbid, New York dared to incarcerate the leading presidential candidate from the other party, That would prevent him from campaigning in other states.

00:57:18.000 And that would clearly, I think, be a First Amendment violation of the citizens in other states if the underlying conviction was unconstitutional, if it was unlawful.

00:57:27.000 And that would be something that federal courts should adjudicate. 0.86

00:57:30.000 And in theory, a state could bring that case to the Supreme Court as a matter of the Supreme Court's original jurisdiction.

00:57:41.000 Yes.

00:57:42.000 It seems like if this was ever made for an instance, this has got to be it.

00:57:46.000 And the timeliness of it is an opportunity for any state AG out there to step up and actually seize.

00:57:51.000 I like that point a lot.

00:57:55.000 The root of the pardon, I think, is an interesting question as well.

00:57:59.000 This is a point that you and I actually discussed last year while I was running for U.S. president.

00:58:03.000 I published on this as well at the time, saying that if I were the president, I would pardon Trump for this underlying crime.

00:58:09.000 Usually that's laughed off the stage because this is a state conviction.

00:58:12.000 But now that it's played out, we've seen what the alleged underlying predicate crime is that allowed them to upcharge this from a state crime to a felony, to a state felony, effectively relying on federal law as the backstop to do it, even if it's on the third step of the cascade you described. effectively relying on federal law as the backstop to do This should be pardonable.

00:58:32.000 Now, if the underlying crime was a federal crime that allowed them to charge it as a felony, then if that charge disappears or if that crime disappears because it's been pardoned, the state charges have to disappear as well.

00:58:45.000 I understand exactly what you're saying, Vivek, but my opinion on that is different.

00:58:52.000 One problem for you there is that even though it was so hard to understand and you could read the jury instructions and never know, and they didn't specify in advance, ultimately they settled, maybe cleverly, on a state crime.

00:59:06.000 The New York election law violation, that was the second crime.

00:59:10.000 And even for the third crime under that, they threw out some state offenses, like state tax laws.

00:59:17.000 One of the third crimes was failure to pay state taxes.

00:59:22.000 But it included also federal crimes for what the third crime was.

00:59:26.000 Another theory was a federal campaign finance violation.

00:59:29.000 Another theory, however, was a New York law Business records falsification violations.

00:59:37.000 Believe it or not, it's almost circular.

00:59:39.000 They were saying that the third crime is going to be a violation of the falsification of business records.

00:59:43.000 Believe it or not, that's in the case.

00:59:45.000 So they did it in a way that the jury could have done this with no reliance on federal law at all, and we don't know.

00:59:52.000 So you don't know, because by the way, the jury was not asking for a special verdict.

00:59:57.000 But doesn't that strengthen the case for the pardon to say that if there was a federal crime listed in the basis for the jury to actually find a conviction, then the expunging of that potential federal offense allows us to not know whether the jury would have actually convicted, and so the state conviction has to follow along with it.

01:00:16.000 You think that's a bridge too far?

01:00:20.000 Well, yeah, I do.

01:00:22.000 You know, the reason is is in part the following.

01:00:27.000 So I've talked about how they structured it to be a state law offense, but in part.

01:00:32.000 But I appreciate the point you're making.

01:00:34.000 We covered a lot of ground there and I think it's worth going deep into those details because that's really what's at issue here is do you actually believe That this conviction was the product of the normal carriage of justice?

01:00:46.000 Or do you think that there were specific contortions of the law that were used to reach a political outcome?

01:00:54.000 And if you believe they can do that to Donald Trump, I think it's a risk for every citizen.

01:00:57.000 But it's not just something that you understand at a macro 50,000 foot level, but Jed, With the level of legal detail that you took us through as well.

01:01:06.000 So thank you for joining the podcast today.

01:01:08.000 I have a feeling we're going to be talking much more, not only about this issue, but about countless legal issues on this podcast in the future as well.

01:01:16.000 And I'm glad that you gave our listeners a lens into the constitutional doctrines that our founding fathers bequeathed us 250 years ago, and they're relevant exactly for cases and moments like these.

Truth Podcast - Vivek Ramaswamy - June 12, 2024

Jed Rubenfeld a Legal System that Encourages Political Subversion of the Law | The TRUTH Podcast #51

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