In this special edition of the podcast, we re joined by Bradley Smith, former chairman of the Federal Election Commission and the FEC, and law professor at Capital University, to discuss the latest in the ongoing investigation of Donald Trump by the Manhattan DA's office, and to discuss whether or not there is a basis for the charges brought against the president. We also hear from a special guest who has long been a supporter of the president, and who has written an op-ed in the Wall Street Journal about the matter. And we are joined by an attorney who has been on both sides of the political aisle for years, and whose expertise is focused on campaign finance law and ethics. This is a special episode of The Weekly Standard, hosted by John Avlon, produced by John Rocha and Andrew Yang, featuring special guest Bradley Smith of the Columbus, Ohio law firm Sid Vellian, who is a regular contributor to the New York Times, and a frequent contributor to The Daily Caller, to provide legal analysis of the Trump administration and other news outlets, including The Daily Beast and the Weekly Standard's Opinions. The Hill, we discuss what we know and don t know about the case, and what we don't know about it, and why we should be concerned. about it and why it s so important to keep an eye out for the facts and who should know what s really going on. and why they should care about what s going on in this case. We ll be back with a full of legal analysis and why you should pay close attention to the details of this story. in the next episode of the next week's edition of The Daily Grail. - John Ava and John s next episode on the podcast. Subscribe to the podcast! Subscribe on Apple Podcasts! Subscribe on iTunes Learn more about John's new book, "The Dark Side of Politics: How to Win at Work, Not Play It, by John's Lawyer John Aviano. Learn more at The Dark Side Of Politics? Subscribe at Podchaser: John Avian's newest novel, "Dancing at the White House Party by John McCain's "The White House." Learn More at Podconversation with John's New York Magazine's "How to Win It All." Subscribe and Share It on Social Media: John s New York's Most Influential Podcasts: John's Thoughts on Trump's New Year's Eve Party?
Transcript
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00:00:23.000running for U.S. president against Donald Trump, but I want to win because the people of this country get to decide who actually runs the country, not some politicized prosecutor.
00:00:34.000And this prosecution of Alvin Bragg, the Manhattan district attorney against Donald Trump, is just that.
00:00:42.000If you have any doubt about that, this is a prosecutor Who is literally fulfilling his own campaign promise.
00:00:49.000He campaigned on a pledge to investigate Trump and I'll tell you this.
00:00:54.000Justice, if it means anything, it's definitely not a prosecutor going after an individual who he pledged to go after in an election, let alone if that individual is the leading member of the opposition party to the ruling party that's in power.
00:01:09.000That's not how we do things in America.
00:01:10.000The ruling party cannot and should not use the police state to arrest its political opponents.
00:01:20.000But it turns out that this case when you look at it is actually deeply flawed and I feel some sense of responsibility as a candidate running against Trump to expose that for what it is because those of us running against Trump have the credibility to do it because it's against our self-interest but it's for the country that we ought to see what's happening with clear eyes.
00:01:42.000So this case is legally flawed on a number of grounds.
00:01:45.000The essence of the claim itself under state law, its nexus to federal law, the circumstances under which it was charged, and even, this is gonna be a head spinner for a lot of people, the ways in which that makes a state case This is a special edition of the podcast we just put together today because
00:02:18.000And I have today with me somebody who I'd be in studio, hard-pressed to find somebody better.
00:02:23.000He also happens to be a longtime friend of mine from here in Columbus, Ohio.
00:02:27.000Former chairman of the Federal Election Commission and the FEC and law professor at Capital University, Professor Bradley Smith.
00:02:36.000Welcome to the podcast, and we have a hungry and intellectually, I would say, hungry audience, so we can allow you to introduce yourself, lay out what the current facts are as you see them, the explanation of the op-ed you recently wrote in the Wall Street Journal about the suspect circumstances of this indictment, and then we'll roll our sleeves and get right into heavy-duty legal analysis here.
00:03:29.000The question is, can you single somebody out for prosecution under the law?
00:03:34.000In other words, if this were a former congressman from New York who'd been defeated for re-election and had moved to Florida, there is no way that Alvin Bragg would be prosecuting this case.
00:03:44.000So it's not really a question of whether Trump is above the law.
00:03:47.000It's a question of whether there's a basis for this prosecution and what is he doing.
00:03:51.000And that will start to take us then to the underlying legal issue.
00:03:56.000And I think it was helpful in your op-ed in the Wall Street Journal, even though people are reading about this in the headlines that are going by so quickly, you took a pause to just say...
00:04:06.000Let's actually track the facts of what got us to where we are.
00:04:10.000I think it might be helpful, even today, when everyone thinks they know what's gone on, to still just pause and lay out those facts, because I think that's relevant to legal analysis.
00:04:20.000You did it so well, I might as well let you do it.
00:04:23.000So again, if we remember back here, there's a woman named Stephanie Clifford, who is an adult movie actress.
00:04:30.000She goes by the name of Stormy Daniels.
00:04:32.000And She has alleged that in 2006 she had a one-night stand with Donald Trump.
00:04:39.000And so at some point after Trump became a candidate for president in 2016, she began suggesting that this might be a story that would interest the press and it would not be beneficial, I think, to Mr. Trump's campaign.
00:04:52.000Okay, so essentially it's kind of an extortion type payment.
00:04:56.000And that's important because I think a lot of people miss that, that she's the one who brought it up as a form of, on the current facts as we understand them, as a form of, you know, you would say a threat or as a form of leverage to say that I'm going to go public with this unless...
00:05:21.000And of course, this came right after some people remember there was the Access Hollywood videotape where Trump had made a number of crude comments that were caught on a video that had not aired.
00:05:31.000So this was viewed as something that would be, you know, add fuel to that fire and be damaging to the campaign.
00:05:36.000Arrangements were then made to pay Stormy Daniels $130,000.
00:05:40.000Apparently this money, as I understand it, I think some of this remains a little bit murky for us all, but apparently some of this money came from the Trump companies.
00:05:48.000It was paid to his attorney at the time, a guy named Michael Cohen, who has since been sentenced for tax fraud and some various other things, and paid to Daniels.
00:06:00.000Now the claim here is Is that in some way, by having this money paid for by the companies, or even by Trump, it was an unlawful campaign contribution.
00:06:13.000Corporations cannot contribute directly to candidates' campaigns, so if it came from a corporation, it's illegal.
00:06:17.000Moreover, it wasn't reported as a campaign contribution.
00:06:21.000And the theory on which we then say this was a campaign contribution, I mean, what's that theory, right?
00:06:26.000Because, look, you and I, we're sitting around, people out here are watching, and I would ask people, when you write a check, For whatever you write, $20, $500, $1,000, you know, to a candidate's campaign, do you think that a campaign expense is hush money for, you know, past alleged indiscretions?
00:06:44.000Or do you think it's payment for, you think that campaign fund will be used to settle legal disputes that were unrelated, you know, that didn't arise out of campaigning?
00:06:53.000Yeah, I think most people say, no, I'm paying this so we can run, you know, hokey TV ads and pumper stickers and stuff.
00:06:59.000So, but the theory is this, as nearest we can tell, again, we haven't seen the unsealed indictment, but the theory is that federal campaign finance law describes a contribution as any donation of funds or other, you know, in-kind, you know, contribution.
00:08:06.000If you're a left-wing Democratic prosecutor who ran for office on a promise to get President Trump, your supporters don't want to get him on a misdemeanor for falsification of business records.
00:08:25.000That's got a two-year statute of limitations and we're long past that.
00:08:28.000But New York law allows that to be ratcheted up to a felony If we can show that the records were falsified to hide another crime.
00:08:37.000Now, I would point out this still is going to have a statute of limitations problem because the statute of limitations problem here is five years.
00:08:45.000We're still, let's see, 2023 minus 2016, that's more than five years, right?
00:08:50.000But apparently the prosecutor's theory is the statute was told while the president was serving in office or maybe while he was in Florida, something like that.
00:08:58.000So the statute of limitations, even if on the campaign finance point, is still five years.
00:10:00.000Now, here's the problem with that from a legal standpoint.
00:10:03.000And I'm glad you mentioned at the outset that you thought you had an audience that appreciated intellectual fare, because we're having to get pretty deep into the weeds of legal statutes here.
00:10:11.000The federal statute does say if it's made for the purpose of influencing an election, it's a contribution.
00:10:17.000But that doesn't mean the subjective purpose that the donor had in mind.
00:10:22.000So, for example, you know, if I wanted to go out and I wanted to say, you know, Donald Trump is a ding-dong daddy from Dumas Bay because I really thought that would help him win the election and I ran a bunch of ads saying that, it's not a campaign contribution, right?
00:10:48.000It's not my subjective intent in what I'm doing.
00:10:51.000And this goes for other expenditures by the campaign as well.
00:10:55.000The law includes another provision, which is generally referred to just as the personal use provision, that prohibits using campaign funds for any expenditure that you might have had were you not running for office.
00:11:09.000So, if, for example, I say, you know, I'm running for office, I'm going to be in a televised debate, I need to look the best I've ever looked, I'm going to go out and buy a $6,000 suit.
00:11:18.000And I would never buy a $6,000 suit, right?
00:11:21.000But I'm doing it because I want to influence this election.
00:11:24.000It's for the purpose of influencing this election.
00:11:34.000Same thing if I said, you know, before this debate, I need to be relaxed, so I'm going to visit a masseuse.
00:11:39.000No, it's not a campaign expenditure, even though it's for the purpose of Influence My Campaign.
00:11:45.000So to sort of just pause there and grasp that, I think that's a very powerful point.
00:11:50.000I think it's worth people understanding it.
00:11:52.000I paused at this when you made this argument because...
00:11:56.000It sort of crystallized what was a debate into something that's not even that debatable.
00:12:01.000Okay, fact of the matter is, and I'm not defending Trump for his alleged action with Stormy Daniels with respect to paying hush money to pay for it, but suppose that's just the set of facts.
00:12:14.000Your point, which is, I think, really persuasive, is that if he had characterized that as a campaign payment, if the campaign were paying for that, That would be a legal problem under federal law because it's about the use of campaign funds to cover something that's fundamentally personal in nature, an affair in 2006 that he wants to throw hush money at because there's all kinds of personal reasons to want to throw hush money at it.
00:13:02.000So the fact of the matter is if the federal law would have, the campaign federal election laws, would have required him to make that a personal payment, then it's truly a perversion, a contortion of that federal campaign finance law to say that no, no, no, no, the crime was actually the exact opposite, that he did not count it as a campaign contribution.
00:13:23.000That's the essence of the argument here.
00:13:25.000I wish, it's kind of funny that Trump's own people have not come out and said it as lucidly, I think, as you have, but that's the essence of what's going on here.
00:13:32.000Yeah, I mean, you've got a lot of points that you make, starting with the basic effect that's probably worth making, You know, I'm not here to defend Trump's behavior or anything like that.
00:13:40.000I'm running against Trump, by the way.
00:13:42.000I think voters have every right to take that into account in deciding who they want to vote for, you know, that kind of thing.
00:13:47.000But we do have important questions of both campaign finance law for the future going forward and rule of law going forward.
00:13:54.000And so, right, you can't And I want to point out one other thing.
00:13:58.000It's true that Trump might have a lot of other reasons for wanting to hide those payments.
00:14:03.000He might want to spare his children as well as his wife the embarrassment.
00:14:08.000He's got marital harmony, all kinds of things like that.
00:14:11.000He might view it as damaging his business brand.
00:14:12.000He knows he's going to have business concerns going forward.
00:14:15.000But the point is that in some ways it doesn't even matter if those were his concerns rather than helping the campaign.
00:14:20.000Because again, it's an objective standard.
00:14:23.000And another way to think about that standard is this.
00:14:26.000Do people buy clothes if they're not running for office?
00:15:39.000No, those are things you don't do unless you're running for office.
00:15:42.000But you do buy clothes, you do get your teeth whitened so you look good on the trail, or at least good in life.
00:15:48.000These are things that you do even if, and again, it doesn't matter if the particular person would do it, the idea is that people do those things.
00:15:56.000It's not caused by the act of campaigning that you're doing it.
00:15:59.000So there's almost three sort of categories here.
00:16:02.000One is The kinds of things that you couldn't use campaign funds for if you wanted to.
00:16:10.000And I think the hush money is in that category.
00:16:12.000Now you could say that maybe there's a debatable gray area and then there's the kinds of things that if you're going to use it to hire campaign staff, put field staff in Iowa, New Hampshire, whatever, you have to report that as a campaign contribution.
00:16:22.000You can't do that out of your personal or corporate account.
00:16:24.000The irony here is Alvin Bragg is taking something that a prosecutor could have come after Trump for, which is illegal conversion of campaign funds if he had done it, And saying that it's a crime because he didn't do it.
00:16:36.000Well, you have a clear feeling in this, I think, at least I do, that they were going to get Trump coming or going.
00:16:41.000Certainly a guy like Bragg, who ran for office on the promise to get Trump.
00:16:45.000So he's going to get Trump for not reporting this as a campaign contribution and using campaign funds.
00:16:51.000But you pretty clearly feel that had Trump actually used campaign funds, they would go after Trump for using campaign funds.
00:16:57.000And they might even have a more solid case then than they do now.
00:17:08.000And that's what brings us not only to, you know, again, the problems for the future of campaign finance law.
00:17:13.000Note again, Bragg's theory in this case is that you would have to use campaign funds for these things, which I think to most people is just, you're telling me a candidate has to pay off these kinds of things?
00:17:22.000Which would be a violation of that federal law.
00:17:30.000And that's what I mean when I say this isn't about saying is someone above the law.
00:17:34.000This is about saying can you single someone out because of who they are and can you have a law that allows you to get the person whichever course of action they choose.
00:17:43.000And that's the epitome of sort of a Ultimately, a lawless regime, a totalitarian regime.
00:17:50.000They decide that you've committed a crime, and they just got to pick the crime.
00:17:53.000And it doesn't matter which course of action you choose, they've got you.
00:18:03.000It appears that the judge who's been selected here is...
00:18:08.000Or at least has a track record of being hostile to Trump, which is interesting.
00:18:12.000I think he was the judge who was, based on media reports, involved in the potential conviction or plea associated with whoever that Weiselman or whoever the guy was that worked for Trump that's now serving in prison as well.
00:18:29.000Let's say it follows through and a conviction follows.
00:18:43.000I can't say I'm an expert on the New York law there.
00:18:45.000I believe that prison gets to be a felony, so I believe that there would be at least the option for prison time.
00:18:50.000And again, this is something we really have to think about, you know, is do we really have a crime spree of terrorizing accountants with the falsification of business records?
00:19:00.000And by the way, even this falsification of business records, I've kind of assumed that that's a legit charge.
00:19:05.000And I'm not sure you couldn't say that this was not a legal expense.
00:19:09.000And moreover, I'm trying to figure out who was actually harmed by that particular reporting of this as a legal expense.
00:19:15.000And that takes us back to the question, just is it wise for the prosecutor to be pursuing this?
00:19:20.000Do we really want to see Trump thrown in jail over this crime?
00:19:27.000And I don't think you would envision this happening to other people.
00:19:31.000Like I say, if the guy had been a congressional candidate from upstate New York who'd done the same thing, there's no way this prosecution would be going forward.
00:19:39.000Yeah, and that's just a prosecutorial discretion point, let alone the fact that the underlying analysis of the law is applied to the facts probably does not...
00:19:47.000I think you're in my estimation, reveal a crime at all.
00:19:53.000I mean, you're a Federal Elections Commission former chairman, right?
00:19:59.000From that corner of the world, what do you think this does to how candidates think about even campaign finance law compliance going forward?
00:20:10.000Well, I think it's bad for a couple of reasons.
00:20:14.000One of the battles over the years has been to keep sort of campaign finance, you might say, in its lane.
00:20:21.000Both to keep everything we do in life from being accused of being campaign finance.
00:20:25.000For example, you know, if I go out and I give a lecture at my college this afternoon, and I talk a little bit about some of these issues, somebody might say, is his purpose to influence a campaign?
00:20:37.000And if we don't make this an objective standard to make it clear, you're going to have this creeping takeover of all of political public discussion by campaign finance law.
00:20:46.000But you also have the problem going back the other way, which is there's been a constant effort by candidates, really, to want to expand what they can do with their campaign funds.
00:20:54.000Like, well, gee, I've got to be out campaigning, so shouldn't I be able to use my campaign funds to pay for child care?
00:21:00.000Shouldn't I be able to use it for security for my home, a home security system?
00:21:04.000Because, you know, I'll be more of a public target.
00:21:06.000And these are all legitimate, real concerns that people have.
00:21:09.000But historically, our view has always been, you know, that's sort of part of the price of running for office.
00:21:15.000And what separates a campaign contribution from a bribe is that you can only use the campaign contribution to run your campaign, to actually campaign for office, not to buy that nicer suit, you know, not to...
00:21:29.000Get a $600 haircut again so you look good on the trail.
00:21:32.000You know, you have to do it for things that arise directly from that campaigning.
00:21:37.000And so I think it's very dangerous because it actually, you know, I've been a huge critic of campaign finance laws over the years.
00:21:42.000I think that generally we should be Just kind of let candidates raise and spend money without limits on it.
00:21:48.000But I have supported this notion that you have to spend your campaign funds on campaigning activities, and we should defend that law pretty narrowly because otherwise you've got donors who could say, or let's put it this way, a candidate could say, hey, I'd like to settle some of my own lawsuits with my business.
00:22:05.000Why don't you contribute to my campaign and I'll have my campaign settle my own business disputes?
00:22:23.000So what do you think this does for even the advice an attorney gives to a campaign or a candidate in the future, right?
00:22:31.000It's a damned if you do, damned if you don't.
00:22:33.000I mean, let's say you're advising a candidate in the future on some kind of campaign advice matter in the wake of now the Trump precedent here to say that that had to be characterized.
00:22:44.000As a campaign expense when measured against the normal standards of federal law where it wouldn't be.
00:22:53.000And by the way, I've heard some people respond to that dilemma with the flippant comment that, well, I tell my candidate not to have external affairs and pay hush money.
00:23:03.000But of course, obviously, right, that's flippant and it doesn't work.
00:23:05.000And it particularly doesn't work if things have been already done.
00:23:08.000And again, you might think again of settling business lawsuits or other things like that.
00:23:13.000I want to add one more point on the legal matter here, and again, get deep into the weeds, but it's worth noting too.
00:23:17.000As you know, when a federal agency issues regulations within the scope of its authority, if those regulations don't clearly violate the statute, those also have the force of law.
00:23:27.000So just one more thing reinforcing the point I've made about what the law requires here.
00:23:31.000Is that the Federal Election Commission, when it issued its own regulations interpreting this personal use portion of the law, made very clear that it was not accepting the standard that some people wanted it to adopt, which was if something was primarily to benefit the campaign, you had to pay for it with campaign funds.
00:23:49.000Rather, the FEC adopted the standard again that you have to use your personal funds unless the obligation would exist only because you're campaigning.
00:23:58.000So that's just one more, I think, nail or whatever you want to say, one more way to batten down that I think that the idea that these expenditures were campaign expenditures and therefore an illegal corporate contribution to the campaign, just in my mind, has no real legal currency.
00:24:13.000But, you know, back to your key point, you know, I've advised campaigns in the past.
00:24:35.000They're going to file advisory opinion requests with the FEC all the time, and then each case is going to be an ad hoc determination by the FEC in an advisory opinion.
00:24:42.000And advisory opinions have no real precedential value outside of the requester, so every case is gonna be different, and you're gonna have ad hoc adjudication of the law.
00:24:51.000It's just all very bad for the rule of law.
00:24:53.000I think this is just bad news all the way down, especially because you don't even have somebody who is We're good to go.
00:25:18.000To apply this nuanced of an understanding of federal election law and set this precedent for the rest of the country, this is wrong.
00:25:28.000For example, Trump is going to be charged under New York law, but under the theory proving the New York violation would require proving the federal violation.
00:25:38.000What is the burden of proof then for showing the federal violation?
00:25:41.000Is that also beyond a reasonable doubt?
00:25:43.000Or does he just have to show that maybe it was more likely than not?
00:25:46.000Can a judge make a ruling on whether an activity violates federal law when that ruling is not going to be binding on anybody because he's not actually finding a violation of federal law?
00:25:58.000So it raises for people who think about practicing law and the actual business of what goes on in the court, it raises a whole mess of questions as to how exactly is this case going to be tried if it goes that far?
00:26:10.000So the New York judge would have to find A criminal violation beyond a reasonable doubt of a federal law that's completely outside the scope of what a New York judge would otherwise ever have authority or competence to determine.
00:27:20.000In a certain way, Donald Trump is suffering as a consequence of it, but he was also the president, and yet, here we are.
00:27:27.000And so the question for me is, what steps can a U.S. president actually take to create a culture and a norm and a reality in the administrative police state that stops this kind of pattern from repeating itself?
00:27:46.000Plan and vision for things and commitments that I made for what I would do.
00:27:49.000And one of those commitments I made was that as the next U.S. president, at least for defendants who were themselves convicted as part of a politicized prosecution—and I can define what that means and how we can tell whether something was a politicized prosecution— I would pardon those defendants.
00:28:16.000You're gonna tell people what it's about if they don't know?
00:28:18.000Yeah, I mean, many people may not know.
00:28:20.000He created some internet memes that were designed to satirize Hillary Clinton's supporters by telling them that they could vote via text message or even by social media.
00:28:32.000This is a laughable notion, but he was nonetheless creating internet memes that were calling that bluff for what it is.
00:28:40.000Just as actually a prominent comedian, Christina Wong was her name, did the same thing for Trump supporters, and it was designed as a comedy sketch.
00:28:47.000One guy was prosecuted, convicted, now facing 10 years in federal prison.
00:28:51.000The other person completely went untouched for the same act and the same election.
00:28:55.000So good evidence of a politicized prosecution is that under the same circumstances, for a suspect alleged crime, one person was charged, another person, or different people, countless different people in similar circumstances would not have been charged.
00:29:08.000That's a good indication of a politicized prosecution.
00:29:12.000This is controversial, but I think it applies to many peaceful protesters on January 6th.
00:29:19.000Those who are non-violent, who nonetheless were held without bail, due process violations, potential Brady violations, not seeing exculpatory evidence.
00:29:26.000Those are separate cans of worms we could spend hours on each.
00:29:30.000But anyway, this is one of the things I've said as we as president.
00:29:32.000It seems to me then that this politicized prosecution of Trump meets the bill, which would have me normally say that Yes, I will put Trump on that list.
00:29:44.000Even though he's a political opponent of mine, I will pardon Trump of this offense because it's the product of a politicized prosecution.
00:29:50.000Now, there's the glaring fact that he would be convicted by a state court, which a U.S. president under the Constitution cannot pardon, can only pardon crimes against the United States.
00:30:01.000However, as we've spent the last half hour discussing, this supposed state crime Would actually require a conviction pursuant to a federal violation.
00:30:16.000So if that federal violation didn't exist, say, if it were pardoned, then the state crime couldn't be charged because it's outside the statute of limitations and even if it weren't, it would be maximum of misdemeanor.
00:30:32.000I have to admit this is my idea, but I've vetted it now with, among others yourself and other legal scholars across the country, This seems like something a U.S. president can do in a way that I think would be good for the country.
00:30:45.000Better if it came from a Democrat, because I think then it'd be more unifying.
00:30:48.000But even if it came from anyone other than President Trump, it's a U.S. president acting on principle.
00:30:53.000And I'm at a place where I say that I would pardon that crime.
00:30:57.000Because it's actually a federal crime that's effectively being charged through the avatar of a state court.
00:31:05.000And I want to get to the key question, which is this pardon question.
00:31:09.000But I do want to say a word just on Mackey first and January 6th, because I do think this is important as well.
00:31:14.000So Mackey was convicted, and as you say, he's facing 10 years in prison for this kind of joke meme.
00:31:18.000First, there's no evidence that I've seen, maybe I missed something, but I don't think any evidence was presented that this actually fooled a single voter, that any voter actually didn't show up at the polls because they thought they'd voted for Hillary by texting something to this number.
00:31:32.000Or on social media, going on Instagram or Twitter or whatever, voting by Twitter.
00:31:37.000I don't think many people in this country do.
00:31:39.000And the law under which he was convicted is an old law that was a civil rights law that was aimed at people physically stopping people from voting, intimidating them at the polls, threatening them with lynching, maybe actual physical violence against people.
00:31:54.000You know, it was not aimed at people, certainly not making jokes or satire, but even making comments that might discourage a person from voting or get them to vote the wrong way.
00:32:04.000You know, if somebody said, well, you know, you probably don't want, it's not worth your voting, your guy's going to lose, and look, the line's going to be so long, you don't want to take the time, right?
00:32:16.000It's illegal to inhibit a person from voting.
00:32:18.000So I think that what this shows, and I agree with you on January 6th too, there are some people who deserve to be prosecuted for, you know, illegally entering a federal building and, you know, property damage.
00:32:27.000You know, you should know you can't plop yourself down in the speaker's chair and put your feet up on the desk.
00:32:31.000And those are kind of misdemeanor defenses.
00:32:33.000But a lot of people seem to be being charged who did nothing more but be there and then maybe follow in after the police at that point were finally saying, just come in.
00:32:42.000And you just sense in the Mackey case and some of these January 6th prosecutions and all these that what's happening is far beyond a sort of reasoned response to the nature of the offense.
00:32:53.000It's not that nobody did anything wrong or shouldn't be prosecuted.
00:32:55.000It's not a question, is someone above the law?
00:32:58.000It's a question of, are we singling people out for particularly strong punishments because we don't like them?
00:33:04.000And I think that that's a real threat and that, you know, I hope more people on the political left will start to take seriously and really think about this because what goes around comes around.
00:33:13.000And this used to be a concern of the political left, by the way, in the Bush era.
00:33:20.000That was a left-wing concern not that long ago.
00:33:23.000And you actually raised an interesting point about the absence of evidence that meaningful numbers of people, even if any people, were actually fooled by saying that you could vote on social media or via text message.
00:33:34.000Because there's also something more nefarious, culturally nefarious, about saying that, okay, there's a meme creator on the left who's making that joke to Trump supporters.
00:33:50.000But somehow we think that under civil rights laws, somebody on the right is going to fool black democratic voters and that they're going to be the ones who are stupid enough to believe that you can vote via these laughable means.
00:34:08.000There's no evidence that that actually worked.
00:34:13.000Think about the racist mindset and thinking that that was this alleged civil rights violation, but don't worry, they're not going to fool Trump supporters.
00:34:46.000But one thing Trump clearly did when he was elected, and I think this is one of the better things he did, he said right up front, he says, we're not going to put Hillary Clinton in jail.
00:35:27.000And it plays into your notion, just thinking, I mean, he wasn't obviously not talking about pardoning her, but just not prosecuting.
00:35:32.000But it plays into your notion of pardoning.
00:35:34.000And as you mentioned, I'm one of the people you floated this by, and I'll admit, my first thought was, well, he can't pardon for a state crime.
00:35:40.000It's going to be a conviction for a state crime.
00:35:41.000But as I thought about this, I think you're right.
00:35:45.000First, a president can pardon somebody for federal offenses, even if they haven't been convicted of those offenses.
00:36:15.000So to try to piggyback the federal offense onto that is very damaging, or I mean the state offense onto that is very damaging.
00:36:22.000And think of how that undermines the entire pardon power.
00:36:26.000Anytime the president pardons somebody, somebody could say, well, I'm not trying to put them in jail for the crime for which the president, the federal crime for which they were pardoned.
00:36:34.000I'm trying to put them in jail for violating a state law which makes it illegal to commit a federal crime.
00:37:19.000I've been trained as a lawyer, but when I see the essence of what's going on, this is what caused this idea to go off in my head.
00:37:23.000Calling that spade a spade, this is a city prosecutor, Manhattan DA, that's charging a federal crime.
00:37:29.000So you can't hide behind that illusion to say that that can't be pardoned, or else the presidential pardon power is meaningless.
00:37:36.000Now, you could debate whether you like the presidential pardon power or not.
00:37:38.000It's in the Constitution for a reason.
00:37:41.000And I think if it was made for a case, it was for a case like this where you could actually have a president who ran against Trump, say I'm successfully elected, who then uses that pardon power to unify the country against the back of something that probably shouldn't have been brought in the first place.
00:37:56.000It's a quintessential case of a presidential pardon power.
00:37:59.000Why on earth would it be in the power of some politicized elected district attorney of the other party to negate that presidential pardon power as it relates to a federal crime?
00:38:10.000Just like it's a perversion of campaign finance law, that would be a perversion of the constitutional scope of the presidential pardon power.
00:38:19.000Imagine if a state passed a law saying it's against the law for a federal office holder, it's against state law for a federal office holder to commit an impeachable offense.
00:38:28.000Now, if you follow impeachment, you know, over the years, there's been a lot of issue about, do you have to have an actual crime to impeach somebody?
00:38:35.000And I think most legal scholars believe the answer is no, that you can impeach people for things that are not actually a crime.
00:38:41.000So you have a situation where the federal government, the House and the Senate, using their powers, don't impeach somebody, but the state says...
00:38:51.000Hey, we think you've committed an impeachable offense, and that's a state crime, and they charge you with that and threaten you with fines and criminal penalties or jail.
00:39:00.000That's really what's happening here is jail.
00:39:26.000This would be great if Biden did that, and he could actually preempt it.
00:39:29.000Yeah, don't you wonder, you know, you wish—where is the—you know, in the old days, it would be a guy like Daniel Patrick Moynihan or something.
00:39:36.000Where is the Democrat who's going to stand up and say, you know, we need to stop this?
00:39:40.000And even if, you know, some of our base thinks, well, the Republicans deserved it.
00:41:09.000Just like Trump's base was, I think, probably frustrated that he didn't want to go after Hillary Clinton.
00:41:13.000And just from a pure personal benefit standard, you know, if Biden did that, wouldn't that really pull the teeth out of any claims about Hunter Biden and the Biden family, you know, and we know those claims are out there and people have raised those.
00:41:27.000You know, for Biden, you would just think as a self-preservation movement would be smart, even if he's not motivated by civic duty to do it.
00:41:49.000I think that's just a feature of Joe Biden.
00:41:51.000You know, if you ask about one Democrat, I haven't heard one Democrat on principle, even though I bet you some of them in private will agree with the things that you and I are saying.
00:42:18.000But he said, look, this isn't something that we want tech oligarchs in Silicon Valley to do to U.S. presidents because if they can do it to Trump today, they can do it to the other guy tomorrow.
00:42:31.000Somebody who's as frightened of the classic Democratic base, largely because most of them aren't behind him anyway, as most of the rest of the Democratic Party is.
00:42:38.000But it seems like someone like that, this should be an opportunity to stand on principled footing.
00:42:42.000No one's going to mistake Bernie Sanders for being a Trump sycophant.
00:42:47.000But it's the principle thing to say, whether you're a Republican Democrat, whether in the Republican primary you're running against Trump.
00:42:52.000I think a lot of the fellow Republicans in this primary are also very meek about this.
00:42:57.000I mean, they're They'll dance around eggshells.
00:43:00.000I don't think anybody else is, maybe some of them also lack the nuance of going into the kind of detail that you and I are going into here, but I just think it's an opportunity for people who are, like myself, I'm running against Donald Trump to defeat him, to pursue the White House in the next election by putting that issue to the voters.
00:43:17.000Whether it's me, whether it's Joe Biden, whether it's Ron DeSantis, whether it's anybody else, we're standing on, have an opportunity to stand on principled footing to do the right thing for the country.
00:43:28.000Rather than just be a prisoner of whatever our political calculus is with our perceived base.
00:43:34.000And yet I think that's a perversion of where our politics is today.
00:43:55.000I mean, I think history will remember him fondly for coming out when he did against technology censorship, even when that was against his political, nominal political interests.
00:44:03.000I think there's an opportunity for someone like that to step up to the plate, too.
00:44:07.000Just indulging here, acknowledging that this isn't your area of expertise here or anything, predictions about what happens in the next phase of this trial.
00:44:29.000Well, I'm going to tell you, and I'm going to kind of steal this a bit from another of my favorite commentators, Andy McCarthy, who writes at National Review.
00:44:37.000And he mentioned, he says, if the judge does the right thing, This case will be dismissed before trial because there's not really a basis for it here.
00:44:47.000Even on some of these procedural grounds that we're talking about.
00:44:49.000But as he then said, he said, but you know, three weeks ago, I was saying, if the prosecutor does the right thing, and we're now beyond that, so what can you count on?
00:44:59.000You know, I think eventually this is going to be stopped at some point.
00:45:05.000You know, the closest thing I can remember to this was about a decade ago, John Edwards, the former Democratic vice presidential candidate, was prosecuted on similar types of charges, that his donors had been paying the living expenses for a woman whom he had impregnated in order to keep her quiet so it wouldn't interfere with his future election campaign.
00:45:50.000And there's other areas where the judge, you know, arguably, or where it might have gone up on appeal.
00:45:55.000In other words, there's no precedential value to the fact that he let it go forward because there's nothing for anybody to appeal over anything else.
00:46:27.000I do still think at some point this will be stopped, but I hope it's sooner rather than later.
00:46:31.000I think it would be awful if this had to go to the U.S. Supreme Court to say, you know, you can't do this.
00:46:36.000Or if this dragged on until finally, you know, someone who's president in 2025 has to pardon the person.
00:46:44.000I think it would be terrible if it dragged on that long.
00:46:46.000It would be much better for us all if this ended quickly.
00:46:48.000Is it the faster path to the Supreme Court or to 2025?
00:46:51.000Because you'd have to find your way through, what, the Second Circuit there, which is where this – although the classic – it's actually an interesting question.
00:46:59.000Even if there is a conviction, what the path to appeals looks like, it probably normally just stays within the New York system unless there's a weird way in which the kind of arguments you and I have been talking about cause the Second Circuit to say, no, no, no, we will hear that, which is probably a good signal that they're going to overturn the conviction.
00:47:16.000And here you get into really complicated issues of federal laws, of federal courts, which no law student ever wants to take because it's like the hardest class in law school is federal courts.
00:47:25.000And there's obscure doctrines like Pullman abstentions and all these kinds of things.
00:47:33.000Initially, it would look like this would proceed through the New York state court system.
00:47:36.000So you'd have two levels of appeal there.
00:47:39.000And, you know, again, this could easily, I don't know how fast they're talking about going to trial, but this could easily, you know, motions, you're going to have motions to probably change venue and so on.
00:47:46.000This could easily drag out past the 2024 election.
00:47:50.000And, you know, so when you say, you know, you think you would look at this as a case where you, if you're successful, would issue a pardon, I think it's, you know, it's realistic to be considering that.
00:48:01.000It may end up being faster that way than finding its way to the U.S. Supreme Court, actually, after just the trial itself, let alone appeal number one within New York State, let alone going to the New York Supreme Court, which is then one of the paths to get to the U.S. Supreme Court.
00:48:17.000And you may have a detour in there where something is filed in federal court and the state court stops until the Second Circuit then rules, nope, we don't have jurisdiction over this.
00:48:24.000You know, I mean, there's a whole lot of ways this could play out legally.
00:48:27.000And my guess is these are things that even very, very competent federal judges have probably not thought about too much before this, where maybe it's now on their radar.
00:48:37.000Yeah, I think that the pardon angle here may sadly end up.
00:48:50.000And now how do you think about, and this is again outside of your Federal Election Commission experience base, but just as a law professor and astute observer of the legal system more broadly, what do you think this does to the effect it has on other prosecutors across the country in Fulton County, Georgia, and elsewhere who what do you think this does to the effect it has on other prosecutors across the country in Fulton County, Georgia, Well, this is another good question.
00:49:16.000I have not followed those cases as closely because they don't raise the campaign finance issues that are totally in my wheelhouse.
00:49:22.000Although some of the prosecution going on down in Atlanta do relate to election law issues, attempts to interfere with the election and so on.
00:49:30.000And I think the general feeling is that those are more serious charges.
00:49:34.000Both substantively, they're more serious, and the legal basis for them is more serious, has more credibility to it.
00:49:40.000Nevertheless, I think those charges, to the extent I'm familiar with them, and that's a pretty big caveat, still look to me like ones that I'm not really sure this is where we want to go or that these are particularly strong cases to bring.
00:49:53.000I do suspect that the prosecutors down there are feeling a little bit hacked off.
00:49:57.000I don't think I'm saying anything terribly original to suggest that this is probably the weakest of the cases that could be brought against Trump.
00:50:04.000And to the extent it therefore goes nowhere, it may tend to discredit future prosecutions.
00:50:10.000You know how it is, you get your sort of one chance at the king or whatever, and if you miss, it becomes much harder to do it again.
00:50:16.000So, you know, I mean, this is just predictions here, but it seems to me one effect, because I was thinking about it both ways, is that, okay, he's already gone first and crossed the Rubicon, so it just paves the way for somebody else to come in without unique allegations of being the person who broke a norm of charging a former U.S. president at the state level with a crime.
00:50:37.000Since that bridge has been crossed, it becomes easier, and then the prosecutor would say, well, I think I have an even stronger case than Alvin Bragg does, so I'll bring it, and it's a more serious charge.
00:50:45.000The other point is, the more of a farce this Bragg prosecution is revealed to me, that prosecutor would say, well, gee, you sullied the bed, and now what I otherwise was on track to do, I feel like I'm going to be lumped in with lazy Alvin Bragg over there, who doesn't have a real legal case.
00:51:07.000And so that causes me to stand down, just as a legal social matter.
00:51:14.000Which way do you think that that would probably tend?
00:51:17.000It probably depends on who the prosecutor is.
00:51:19.000It does depend on the prosecutor, how good they think their case is.
00:51:23.000And then you've also got the issue, by the way, of impaneling a jury.
00:51:26.000It's going to be very difficult to impanel a jury here.
00:51:29.000Now, they'll work to get people who can say, I'm not going to be biased, I can be fair.
00:51:34.000And I think in the end, I have a lot of confidence in our jury system.
00:51:38.000But nonetheless, so envision that this case gets dismissed, never gets to a jury in New York.
00:51:43.000It just gets dismissed right away, and, you know, the general consensus is a really bad case.
00:51:47.000Now you're impaneling in a jury, say, in Atlanta.
00:51:49.000Well, those jurors not only have opinions of Trump and all these things that have gone on, but they have maybe opinions of this general effort.
00:51:56.000You know that jurors are going to be out there thinking, well, didn't the judge in New York just, like, dismiss all these things?
00:52:02.000So it's going to make it even more difficult to impanel a good impartial jury in these cases.
00:52:07.000Now, that's not a reason for a prosecutor not to bring a case, but it could be a reason for a prosecutor not to bring a case to say, not only do I have legal issues, not only is this maybe politically unwise, you know, but it's going to be, you know, very tough just as a matter of the justice system.
00:52:21.000And let's just get into the details before we wrap up, because that's a pretty interesting insight you're bringing up.
00:52:28.000This has been a great conversation, but I think we're cracking ground that despite reams of coverage out in the universe, I don't think anybody has gone to the depths we're going here that I've seen.
00:52:38.000So this is useful to me, certainly, hopefully to the people listening to this, too.
00:52:45.000What's the timeline to jury impaneling reasonably here?
00:52:49.000Because I think that if it's going to be a little bit of a longer time, I could imagine that accelerating the other prosecutors' efforts to say, let's get ahead of something derailing this in New York so that we're already on track.
00:53:03.000Versus if it's going to happen really soon anyway, then they might wait.
00:53:07.000Like, what's a reasonable time frame for getting there?
00:53:09.000You know, I'm not a criminal guy, and I don't know the New York law system, so I'm not sure I can venture on that.
00:53:14.000But I would just—one thing that pops into mind as you were talking about is people who are, you know, older will recall the O.J. Simpson trial.
00:53:22.000How long did it— How did it take just to impanel a jury in the LJ Simpson tribe?
00:53:25.000I remember it took a couple months just to get the jury.
00:53:28.000So again, when we think about this stretching out over a period of campaigning, you know, it's very problematic.
00:53:36.000And one thing, you know, we haven't even talked about, we haven't raised the fact that, I mean, you've raised it indirectly, as you've mentioned, you're running against Trump, but we haven't even mentioned the fact that Trump is a candidate for president, which adds yet a new dimension to it.
00:53:49.000You know, there's been some talk with the judge impose a gag order.
00:53:52.000The judge can probably do that on the lawyers in the case.
00:53:55.000I don't think the judge could impose a gag order on Trump not to talk about the case in any way, shape, or form.
00:54:00.000Oh, that'd be a canonical First Amendment violation.
00:54:02.000So, you know, that adds yet a whole nother dimension to it.
00:54:05.000Now, again, you know, the idea that we can't prosecute somebody simply because they declare themselves a candidate for president, Al Capone says, okay, I'm going to run for president, doesn't immunize him from prosecution.
00:54:15.000But it does get us back to that point of just thinking about, is this wise?
00:54:19.000And there are so many reasons, you know, holes in the legal case, prudential reasons, and so on, that this is just a real, I think, folly to do.
00:54:26.000And I'll come back and You know, to my core expertise here as we kind of wrap up, which is I just don't see that however you cut it, there's a campaign finance violation to begin with.
00:54:36.000So if that's what the prosecutor's relying on to try to elevate this little misdemeanor into a felony, and the indications we have is that that is what he's relying on, I just think this case has no merit and really can't go anyplace.