Breaking Points with Krystal and Saagar - 6/7/24: MAGA Lawyer DEBATES Liberal Analyst On Trump Legal Cases - Counter Points Friday

Episode Date: June 7, 2024

Ryan and Emily are joined by Will Chamberlain and Brian Beutler to debate Trump's legal cases. To become a Breaking Points Premium Member and watch/listen to the show AD FREE, uncut and 1 hour early visit: www.breakingpoints.com   Merch Store: https://shop.breakingpoints.com/See omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Hey guys, Ready or Not 2024 is here and we here at Breaking Points are already thinking of ways we can up our game for this critical election. We rely on our premium subs to expand coverage, upgrade the studio, add staff, give you guys the best independent coverage that is possible. If you like what we're all about, it just means the absolute world to have your support. But enough with that. Let's get to the show. This isn't uncommon in law generally, and it's how this law has always been prosecuted. There was no special rule created to make it easier to convict Donald Trump. It's just how the law works. The novel theory is the idea that there's a duty to keep pristine business records

that will never be seen by anybody else. That's never been prosecuted. Normally, when you have falsification of business records, it's prosecuted because there's embezzlement or there's fraud. Somebody else is going to see these records and therefore be a victim of a crime. But there's no victim here. No one was defrauded. No one was hurt. Welcome to CounterPoints. Today, we're going to be debating, lock Trump up, yes or no? That is the resolution before us. And we're joined now by two guests who are basically polar opposites on this question. And we're excited to kind of dive into it. Will Chamberlain is the senior counsel over at Article 3 Project. Brian Buehler writes the off message sub stack.

Will, Brian, thanks for joining us. Thanks for having me. It's great to be here. All right, let's have some fun with this to the extent that it's possible. Brian, I'll start with you. If we take the sort of lawfare against Donald Trump in the aggregate, because there are a million different cases happening right now. There are appeals.

There are so many different things happening. In the aggregate, though, are the prosecutions, the attempted convictions of Donald Trump, the convictions on 34 felony counts last week, in the aggregate, is all of this fundamentally just? Yes. Can I just give the one word answer? since Donald Trump got convicted of crimes that I think all of us here understand a bit less intuitively than, for instance, the stolen classified documents case or the January 6th case,

it's generated a level of controversy about whether the charges were valid or the case was good, that those cases didn't. But I think the close study of what he was charged with in New York and why he was convicted would lead people to see them kind of all as of a single piece, rather than as three different cases brought by three different prosecutors, all of whom are out to get Donald Trump. Okay, so we'll then, we'll stay at that

kind of basic level for now. Will, these prosecutions of Donald Trump, the attempted convictions of Donald Trump, the 34 felony count convictions of Donald Trump, fundamentally unjust, I'm assuming, is your position. Tell us a little bit about why. Oh, yeah. I mean, foundationally unjust. These prosecutions never would have been brought if the defendant's name wasn't Donald Trump. They're a completely novel theory of falsification of business records in New York. In every other instance, there's some idea that these records would be seen by other people, but the New York state is putting forward a completely novel theory that President Trump

has a duty to the state to maintain pristine business records, even if those records will never be seen by anybody else. There was no victim to this crime. No one was harmed. There's nobody ever who said anybody was harmed. The best theory they could come up with was that he promoted himself in the election. But of course, that's allowed. And then if you actually look at the technical issues with the trial that were so, there were a number of them that were hugely problematic. I mean, the first and most obvious is that they managed to find the one judge who violated his judicial code of conduct by donating to Joe Biden. Judges are not supposed to make political donations. It's explicit in the

New York Code. And there's plenty of other New York judges who could have handled this case, but they found the one judge who violated his oath in a way that was so trivial because he gave a $10 donation. What does that mean? Well, it doesn't actually sway anything, but it does raise your hand to say that you're on the team, that you're part of, you know, you're one of the people who is happy to work towards the imprisonment of the most prominent Republican in the country. So, I mean, we can go down the list. I mean, there's plenty more in terms of what was wrong with this trial, what was wrong with this prosecution from its inception, but certainly unjustice is the least of it. Yeah. And Brian, I thought your point was interesting that the, this particular case, uh, has, raises more questions in people's minds than the other kind of, uh, more obvious ones. I mean, do you think it was a mistake for Democrats to kind of lead

with this one? I mean, not, it's not as if though Democrats were in a room and said, okay, who's going to go first? All right, Alvin, you've got this. But that is the way it shook out. Alvin went, Alvin Bragg went first. Alvin Bragg is the first to get a conviction. The rest are just languishing. Do you think that his being the only one to make any progress is undermining the broader public's kind of faith in this? Or do you think that, you know, the guy seemed guilty, so, you know, let's move to sentencing? Yeah, I mean, to the extent that you want to define Alvin Bragg or Juan Merchan as Democrats, this shook out this way in large part because of the actual lawfare that Donald Trump engaged in to delay his other trials. This trial was set to go second and

possibly never at all because Alvin Bragg recognized that the January 6th prosecution that Jack Smith brought was the more important one, and that if that was teed up, that he would basically take his case into abeyance and then try Donald Trump at a later time, or maybe just let things fly. To respond to what Will said, you know, Juan Rashaun wasn't picked at random, or Juan Rashaun didn't, they didn't land on him. He was picked at random. And the donation that he gave to Joe Biden, he ran that by a New York ethics panel, which determined that he could not be deemed too biased to preside over this case. What would have been sort of outside the normal practice would have been for Alvin Bragg to discover this crime and not charge it. This is a law that New York State prosecutes

very vigorously. And contrary to what Matt says, they do it not because they're out of the goodness of their hearts, because America has this robust culture of prosecuting white-collar crimes, but because New York is the business capital of the world and people who do business there need to have faith that the business records that they encounter are not fraudulent. That's why it's so aggressively policed in New York and not prosecuting Donald Trump for falsifying his business records would have been placing him above the law. And if an appeals court or the New York legislature or whatever determines that actually because of Donald Trump, we need to toss this law out the window, it's not like Donald Trump is the only one who gets off. A bunch of other fraudsters get off too, which I suppose is fine with MAGA, but that would actually not be good for New York.

Will, go ahead. I mean, I think you missed the thrust of my point, that this is an entirely novel theory that's never been prosecuted in this manner before. Well, there's never been a presidential candidate who falsified business records to cover up his election crimes. That's the only piece. I mean, you're narrowing the scope then too much. The novel theory is the idea that there's a duty to keep pristine business records that will never be seen by anybody else.

That's never been prosecuted. And I'm not the only person saying this. This isn't just some right-wing conspiracy theory. This is Jed Sugarman, who's a very liberal law professor, who pointed this out months ago. Actually, probably last year when this prosecution was initially brought. This is incredibly, incredibly novel. Because normally when you have falsification of business records, it's prosecuted because there's embezzlement or

there's fraud. Somebody else is going to see these records and therefore be a victim of a crime. But there's no victim here. No one was defrauded. No one was hurt. And so clearly, like this actually, when you say, oh, this is so aggressively policed, you're just wrong. Fact on the facts. You're just not. That is not true. Judge Sugarman is not a former assistant district attorney for Manhattan. If you talk to people who used to work in that office and used to prosecute those crimes, they say that this was a paint-by-numbers prosecution for the reasons that I said, and that New York does have a compelling interest in making sure that people's business records

are not fragile. And I would agree with you that were Donald Trump not Donald Trump, or if he had lost the 2016 election, this case might not have been brought because it might not have been discovered, right? Because the business records would never have come out, nobody would have seen them,

the prosecutors would not have had anything to work with. I mean, I don't think they would have gone fishing through his business records to find them, but that might have been an abuse. Instead, what happened is he was elected president.

The business records became public. The prosecutors were aware that he committed the crime. It would have been malpractice of them to just, like, let him off the hook because he's Donald Trump. So why not charge him?

This isn't true. Cy Vance had this case years ago and looked at it and passed. I mean, this is, like, it took years. I mean, remember, these transactions happened in 2017. There's been years where this has been available as a possibility to prosecute. But not only did Vance look at it and pass,

Federal Election Commission looked at it in the past. And all of a sudden, Alvin Bragg comes in with the help of Matthew Kemp and the former number three of DOJ. And somebody's like, oh, big time prosecution here. I mean, it just strains for newly to suggest that this is anything but lawfare. The Federal Election Committee is neutered by people who won't apply the law to Donald Trump. If Simon Vance made a mistake, and somebody should ask him now because the jury came back unanimously that Donald Trump committed all 34 of these felonies, that's Cy Vance's problem. Brian, what about the, I mean, a huge complaint, and Will, you can flesh this out as well,

but one of the huge complaints is that Donald Trump is not charged with the underlying crime that he was convicted of 34 felonies of furtherance. So if he was not charged with, for example, election of a federal election crime, why then is it appropriate to convict him on 34 counts that were trumped up to a felony because they were in furtherance of this other crime? How do you sort of justify that then? So I'd say, I'd say two things. One is that I think it speaks poorly of Merrick Garland's Justice Department, that he let the statute of limitations on Donald Trump as individual one lapse. And then the second thing I'd say about it is that I think that the argument

is a canard. And lawyers like Will presumably understand that there's a very close analogy to this in obstruction law. That if somebody shreds documents to cover up bank fraud and or drug trafficking, but the destruction of the evidence prevents prosecutors from proving beyond a reasonable doubt that a defendant committed bank fraud or trafficked drugs, they're still guilty of obstruction. And the jury does not have to be unanimous as to whether the shredding of the documents was to cover up one crime or the other or both. This isn't uncommon in law generally, and it's how this law has always been prosecuted. There was no special rule created to make it easier to convict Donald Trump. It's just how the law works.

Again, if Donald Trump has a problem with the constitutionality of this law for that reason, he can take it on appeal, but there's nothing unusual about it at all. Go ahead, Will. I mean, another point that was made is that this is the first time that these federal election laws have been used as a predicate anywhere in the country under any circumstances. Well, it's New York state law. It's not legal in New York state. The New York state law prohibits the promotion of a candidate by unlawful means. That itself contains the predicate, and that included a violation of federal election law, right? It's understanding how convoluted this legal theory is and why it's so bizarre.

There's three levels of predicates here. There's the falsification charge. Then there's, they said that has to be in furtherance of another crime because they needed to bump it up to a felony in order to get past the statute of limitations problems. They did that by saying, you know, saying that the predicate to that was a New York state election law of promoting a candidate beyond unlawful means, but that unlawful means itself requires a predicate. And then that, they gave, Judge Mershon gave a menu, or the prosecutors did, of three different possible crimes. And this is yet another problem with the prosecution, a total failure in the jury instructions to note that they had to prove the elements of each of the, one of the three predicate

crimes and have, say that those were proven beyond a reasonable doubt. The jury instructions didn't do that. So you have- I mean, that's not true. That's not true under the New York law. But if you think that that's unfair or something like that, Donald Trump can take that upon appeal. That's basic due process. This is like the core of our judicial system. You have to prove every element of a crime beyond a reasonable doubt. Go back to the analogy to obstruction law. There is no issue with charging somebody for obstruction without charging them for the crime that they were obstructing. I don't think that you believe that obstruction law is unconstitutional or violates due process law if you don't also charge the obstructed offense. You don't think that. No, but if you think- That's distinct. If it's a predicate element of the crime,

that also has to be proven. Even if you don't independently charge it, that's a distinct question from, you know, what do you have to establish? I mean, do you think it's legal for a corporation to pay hush money on behalf of a candidate? I mean, I know that that wasn't proven beyond a reasonable doubt, but that is an element of the crime

that the falsified document is meant to conceal. I mean, I don't think that, I don't imagine that you think that that should be legal practice for campaigns. I mean, it's not clear, right? Like, that's just not clear under current law, right? Like, this is why they didn't rebring the John Edwards prosecution,

because he did something similar happen in his instance and they didn't want to bring it, because it's just not clear. If there's a mixed motive for why they- What was the corporation that paid John Edwards Hush money and that he didn't reimburse? Well, I mean, because the question is not whether a corporation or somebody else does it.

I mean, if it's any entity other than the person who's the candidate, but I mean, because obviously, the candidate can spend as much money on himself as he wants. So if the candidate wants to sign an NDA and pay a bazillion dollars on their own behalf, no problem. I agree with that. So whether or not it's a corporation or other individuals is sort of irrelevant. Would it be the case that if Trump himself, and maybe this is obvious, so if Trump cut

the check himself, Donald J. Trump, two Stormy Daniels, $135,000, you know, memo, you know, hush money, censor that check. You know, he's allegedly a billionaire. Like, you can write a $130,000 check if you're a billionaire. If he does that, and I break, Brian, I guess, curious for your take on this. So, would that have been legal? Like that, it seems like it would have, right? Yeah, that's because it would be the same as a billionaire. I mean, assuming again,

that these are constitute campaign donations, which was soon for the sake of argument. I mean, you know, you can donate as much to your own campaign as you want. So it would be. With that, without having like,

like the legal expertise to answer the question definitively, as I recall from when the, the hush money story first came out in 2018 i believe the um i think the concern at the time was not would it be legal for a candidate to take money out of their own bank account put it in a suitcase hand it to their mistress make them sign an nda and then the story goes away i think that that per se would be legal. The question is whether then it was disclosed as a campaign expenditure or else separately disclosed on

the financial filings that the presidents are obligated to fill out. And would Donald Trump have done that? But we ended up not reaching that point because he went through AMI and Michael Cohen instead. And I want to move on from this case in a minute. But just to pick up on one thing that Will said, Will, you mentioned you described it as kind of like a victimless crime. And I think you were referring to the business records because, you know, you're allowed to have sloppy business records. But broadly speaking, the victim here would be the American public that was deprived of learning about this scandal in the wake of the Access Hollywood video. Yet, on the other hand, we do accept the idea that parties are allowed to get together and page other settlements in exchange for an NDA. So I guess, and this is a question for Brian too, how does this become legal? Like you pay the hush money and then you just write in the FEC $130,000 for PR, legal expenses, because you obviously can't put in the FEC hush money for sleeping with a porn star because that undoes

the whole point of paying the hush money. And so is it really as simple as that if he had just kind of written a couple of things differently in his ledger back at the Trump organization and in the FEC that the whole transaction was fine? I mean, it's not clear that it would have been fine because honestly, he does it differently. He's got an independent problem, right? So say it's a campaign expense. Well, then could he pay for it out of his campaign account? That would lead to an obvious problem of,

oh, you're using your campaign for personal expenses because you could reframe it entirely and say, oh, the entire point of paying this hush money is to avoid the public embarrassment to your family and to your family and to your wife and your children about having an affair revealed, and you're using campaign money for that?

Right, like, think about all the other scandals we have where we go after politicians, like Ilhan Omar, for example, for using campaign money for personal expenses. So, I mean, it just literally, you could invert the way, the prism through which you view the transaction entirely and realize that if he had done it in a different manner, he also would have been prosecuted under this theory, which again goes back to why this was unjust in the first instance. And so Brian,

here's a question that might be clarifying and help us even broaden it up beyond just the Alvin Bragg case. I think Will, and I won't put words in Will's mouth, he can make this argument if it's one he agrees with, but a lot of people on the right, myself included, look at this case and think to ourselves, is this the way? If you have the way that James Comey treated Hillary Clinton, we can open up that can of worms too, but is this worth the level of this particular case? Is the lawfare against Donald Trump in general, Is this worth what it will do to the country? Are these severe enough, grave enough offenses that justify breaking what were previously seen as norms, you know, that are not like codified in the Constitution? You can't touch a president, though we can get none. We can also talk about the immunity case at the Supreme Court.

But just in like a purely political sense, in the question of will this be worth what it does to the country? Brian, I imagine you might say, would it be worth not prosecuting? What does it do to the country if you don't prosecute Donald Trump on some of these charges? How do you respond to that? So without stipulating that any of this is lawfare. I can imagine an infraction that Donald Trump committed that I would argue, look, for prudential reasons, it's not worth going after him for that. I wouldn't put the hush money election interference case in that bucket, but you can cook up a hypothetical scenario. I think the norm that was violated here is not, there's like no norm in the United States against prosecuting a former president. The norm is having a former president

who's an inveterate criminal. And I think the implication is, well, now this is just going to become standard. Presidents are going to leave office and whether they've committed crimes or not, prosecutors from the other party are going to go after them. I'm personally not worried about any kind of Pandora's box like that. I do worry that a second Trump administration would go after innocent people or ruin innocent people's lives. And I'm thinking mostly of people who don't have high profiles or lots of money. But I've seen, since the verdict came out, I've seen many conservatives say, for instance, that Nancy Pelosi better watch out, like a MAGA prosecutor will now indict her for insider trading. And my response to that is, go for it. Give it your best shot. I don't think MAGA activists have much of a principled issue with insider trading because Donald Trump pardoned Chris Collins, the Republican congressman who was

convicted of insider trading. But if a right-wing prosecutor wants to get revenge by going after Nancy Pelosi, they should look for evidence that she did insider trading, and they should seek an indictment and persuade a jury. But if it's just tit-for-tat corruption, I'm pretty confident that the case would stink. And either the grand jury would return no bill, or the trial jury would acquit her or hang. Donald Trump got convicted because he committed the crime. And to anticipate what I think the objection will be, yes, New York is a very democratic jurisdiction,

but not all democratic voters are rabid partisans. And Donald Trump won like 15% of the vote in Manhattan. Just picking 12 people at random, you would anticipate one or two of them to have been Donald Trump voters. It wasn't a random process. Trump's lawyers picked six of the jurors. And it would be nice if in the aftermath of this verdict, we could hear from some of those jurors, right? A Republican voting juror could say, you know what? I respect the former president. I thought he was a good president, but the evidence was there and it was my duty to convict. Unfortunately, any juror who came forward to explain their reasoning would be subject to death threats. They might have to leave their home.

And that's the MAGA movement. And I think that not prosecuting because you're afraid of that kind of public reaction is just normalizing that kind of intimidation. And it's good that it wasn't done in this case. Did James Comey make the right decision when it came to not bringing charges against Hillary Clinton from your perspective, Brian? Well, James Comey was the FBI director, so it wasn't his place to bring charges. To recommend the charges be brought, yeah. To recommend that DOJ not pursue charges? Yes, I think that his calculation was that, I mean, the legal point that he was making is that if I tell DOJ to go indict her and then we bring this to trial, we're going to lose the trial, right? And we've

seen this, right? Like Donald Trump did actually try to do something that I would call lawfare by getting Bill Barr to appoint Durham to be special counsel who brought cases against people trying to disprove or to undermine the Russia investigation. And those people were acquitted. Well, after the FBI created the Russia investigation, and those people were acquitted. Well, after the FBI created the Russia investigation. The FBI, well, the FBI engaged the Russian, they had a predicate for it, they pursued it, and Special Counsel Robert Mueller brought charges against many people.

Those people were, by and large, convicted, and many of them are only out of prison now because Donald Trump pardoned them. Well, what's your response to that? I mean, there's a lot to respond to there. I mean, first and foremost, this idea that Durham was just lawfare. I mean, Durham found a guy

who falsified an application for a FISA, Kevin Clinesmith, who could plead guilty to falsifying. I mean, and also we can, you know, I think he got probation. Yeah, that was his trophy. And that is true. I'm not denying that that happened. It was just not, it did not, it did not collapse the merits of what was in the Mueller report or the

Senate's report on Russian interference. I mean, the Mueller report didn't have anything of merit to talk about. There was impression collusion. It was BS. And the obstruction charges were ridiculous. They were predicated on a completely, a complete misunderstanding of how obstruction of justice works. I mean, Bill Barr explained this thoroughly in the memo he wrote before he became Attorney General and then became Attorney General. After he became Attorney General, he demonstrated that what Andrew Weissman and the theory of 1512 C2 that they were all prosecuting was just bizarre. And we're about to find out the Supreme Court agrees with that entirely because when the Fisher opinion comes down in a few weeks, they're going to drastically

narrow the scope of 1512 C2, this sort of this vague general obstruction statute that's going to be narrowed down to actual impairment of evidence. Well, let me pick up on something that Brian said that, yeah, it's true that I think none of us here want to see the norm broken where we start to have political prisoners on each side. And one party doesn't want to leave office because they're afraid they're going to get jailed by the other party. None of that is healthy for us. But Brian makes an interesting point that a norm that was broken before was by Donald Trump, who's doing all of these crimes. Now, I'm not one who's standing up for all the sanctity of, let's say, classified documents. But you read that case. It's like the guy was getting begged by the records folks to, like,

return the classified documents. And he's, like, moving them to the bathroom and, like, telling people, move them here and, like, flooding the office and then saying, oh, I'm not supposed to have this. This is classified. You want to look at this? But then even setting aside that, which I do think is setting that aside, you had several hours where Trump supporters are ransacking the Capitol and Kevin McCarthy and other Republican leaders are begging Trump to put an end to the lawlessness, to this violent attempt to stop the certification of the election. And he sat there for hours. And we're as a public just supposed to be kind of okay with that? I mean, at some point, doesn't it have to be some

accountability? I mean, that was cruddy, but it's not the crime he's being charged with, right? Like, I mean, people do bad things all the time that are not criminal and that are unethical things all the time that are not criminal. And are unethical things all the time that are not criminal. And the charges in the January 6th case just aren't about that. They're about like the electors scheme. Right. Which is the idea of like having these alternate slates of electors put forward to facilitate legal challenges. And I mean, the lawfare against those people is just absolutely absurd. There's precedent for doing that. And there was no fraud because they publicly posted on Twitter exactly what they were doing. They weren't saying, they weren't trying to

secretly be electors in the middle of the night that no one would know. They were publicly like, we are trying to like set up, you know, we are meeting to convene to have these votes so that in the event that Trump's legal challenges prevail, the failure to have electors sign off on the required day isn't going to be a hindrance. They weren't committing any sort of fraud, and yet they're all being criminally prosecuted. That is lawfare. And the precedent for doing that particular thing to preserve effectively your legal challenge, I mean, that was done in 1960 with Kennedy. But I think going back to the macro view, which is the really important point, Joe Biden really better hope that Donald Trump prevails on his presidential immunity.

I think he will, but he better hope that he will, because if that's not the case, and official acts have no immunity for presidents, which is actually a really quite bizarre position. If you read a case like Nixon v. Fitzgerald, Joe Biden's going to get prosecuted by Republicans if we're in power. No question about it. And he won't have much of a defense either. And Brian, to what? You're just something, right? I mean, you know, like, well, like official acts, obviously Barack Obama can just be prosecuted for murder

the moment we get back into office for killing Abdul Abdel Rahman. Ryan just gave a thumbs up if you're listening to this, yes. Right, like, I mean, it's, I don't think that's a good outcome, actually, for the country because I think it means that we massively weakened the presidency of the United States.

And I mean, I'm actually, you know, not, I think executive power is probably a good thing relative, you know, rather than just elevating the legislature. And I think, you know, we have a lot of these, Kavanaugh made a really good point in one of the,

and I think the presidential immunity oral argument. He said, we come up with these structures to try and like punish and restrain presidents. And they ended up doing a real huge amount of harm. Like the independent council structure was a good example of this. Democrats were all for the independent council, thought it was a great idea.

And then independent council started getting appointed all the it was a great idea. And then independent counsel started getting appointed all the time during the Clinton administration. And suddenly they realized, hey, this really inhibits the functioning of the executive. It means that everybody who works in the executive branch gets subpoenaed

and has to spend huge amounts of money on legal fees. This just isn't worth it. And I think maybe, I think the best outcome here is one where we stop harassing our presidents during and after their terms. I think there should I think the best outcome here is one where we stop harassing our presidents during and after their terms. I think there should be presidential criminal immunity. I mean, does that create, do you think that creates a huge loophole?

Like that creates just a huge loophole for scofflaw presidents. And like, Ryan might support prosecuting Barack Obama for drone strikes. And you might, in the event that Donald Trump gets, well, Donald Trump has been convicted, that Donald Trump is not granted official acts immunity for what, stealing classified documents or trying to overturn the election, that Joe Biden should be prosecuted for giving people student loan relief or something like that. But Barack Obama and Joe Biden went through normal processes. They were given advice by some of the best lawyers in the country about how to proceed. They carried out their policies. And so if you try to charge them later, they're going to have a good defense. But Donald Trump is being convicted of crimes because he has no defense.

He didn't offer a defense in New York. What's the defense to murder? If you don't have official axe immunity as president, I mean, he just murdered an American citizen without trial. I mean, does the fact that he has an OLC memo that says, oh, this is okay, just mean that that insulates him from a murder charge?

Yeah, on advice of counsel, he thought that this was consistent with America's national security laws. All Trump needed to do was find some wacky to be his a murder charge. Yeah, on advice of counsel, he thought that this was consistent with America's national security laws. All Trump needed to do was find some lackey to be his OLC guy. Remember, that's not a president, that's not a Senate-confirmed position. He just finds some lackey to be an OLC guy

and say, oh yeah, everything you do is legal. And then, okay, well. Donald Trump had lackeys and they told him that his efforts to steal the election were illegal. And then they went and testified to the January 6th committee. That's a dodge from the broader point, right? Like the idea that this sort of-

No, it's not. That's exactly the point you're- Avoiding the problem of presidential immunity is, or like means that you can, we don't need a concept of presidential immunity just goes, isn't right. And I think the other problem, here's the way to think about it.

You are right that like the choice of saying that there was presidential acts of immunity creates a potential scofflaw president problem. This dilemma was analyzed in detail by the Supreme Court in Nixon v. Fitzgerald where they considered exactly that problem. But they said the efficient functioning of the executive branch and incentivizing boldness

is sufficient to completely immunize presidents from civil immunity. And I mean, you're gonna see, I'm very confident that the courts are gonna end up ruling, at least to some degree for President Trump, that there is gonna be some amount of immunity. Because the other thing is, even the even DOJ and Michael Dreeben didn't defend the D.C.

Circuit opinion that said there's no such thing as official X immunity. Like he was he was asked that point blank in the oral argument. Do you agree with the D.C. Circuit? And Dreeben's like, well, maybe I don't know. That's you know, we're going to prevail on this question. And it's a good thing that we do, because, I mean, here's the other thing. I mean, like Joe Biden's, you know, sorry, I actually mixed things up. But Joe Biden, you know, if we wanted to talk about if there's no official acts of immunity, then Joe Biden facilitated the mass migration of illegal immigrants across our border by like failing to enforce our laws. Another point, Joe Biden, in explicit violation of Supreme Court cases,

decided to go ahead and try and push for student loan forgiveness without any lawful backing. It's like, if he doesn't get any official axiom unity, well, we're talking about promoting your election via unlawful means in the New York case. Well, I guess we could just have somebody prosecute him for essentially trying to bribe college students and using unlawful means, right, an unlawful executive order to do so. You know, the Pandora's box is real. And trust me, if we get back into power and we don't win these presidential immunity cases, you will see just how far that Pandora's box goes. And I just want to I want to reiterate that, like, I'm not worried about that Pandora's box. And I would I would I would welcome some republican prosecutor to prosecute joe biden for forgiveness but let me let me be

magnanimous about another thing um which is um you mentioned jim comey earlier and hillary clinton and we're talking a little bit about official acts immunity when jim comey was i believe running sdny as a u.s attorney at the end of the Clinton administration, he investigated Bill Clinton for pardoning Mark Rich on the theory that this was essentially like a bribe, a quid pro quo. I think that that was like a good theory. Like, I don't know the details of the case or why he declined to prosecute, but I would absolutely support the idea that if a president takes money in order to issue a pardon, that the president is not immune from that.

Now, that doesn't mean that the pardon becomes invalid, right? It's still an official act. The pardon was granted while Bill Clinton was president. Mark Rich gets off the hook. But if there was a corrupt purpose there, then of course Bill Clinton should be prosecuted for it. And the pardon power is like the core of presidential power, right? Like it's plenary, right?

There's no review and only the president can pardon somebody. And the idea that like you create an official act immunity, you're going to let people like Bill Clinton off the hook for stuff like that. Not necessarily. I don't think you should want that.

And I'm saying that as a liberal. I mean, not necessarily. So can I answer this one? Yeah, go ahead. Go ahead. So two reasons. One, I think people have glossed over the fact that the position of the Trump legal team and the sensible position, I think, it's not that all official acts always provide immunity.

It's that if you are impeached and convicted for something, your official acts immunity goes away. You can read the briefing, but that's been the Trump team's position. I think that's the right one. It also jives with the Constitution, right? The Constitution explicitly talks about bribery as a basis for impeachment. So clearly that would be an exception to whatever immunity provides. Like you take a bribe for something as the president, yeah, you can be prosecuted for it after you're impeached and convicted. I think that's sufficient. But you can't be impeached and convicted

almost for certain if you're issuing pardons on your way out the door which is what bill clinton did in this case i mean so bill clinton just gets a pardon all his campaign campaign donors i mean joe biden president trump can pardon office didn't they can joe biden pardon hunter hunter biden without facing uh and he should have official acts immunity for doing that that's his son oh absolutely oh yeah absolutely. Oh, yeah, Joe Biden can pardon Hunter Biden. I mean, I expect him to. And you wouldn't come on this program and say, and like now he needs to be impeached, he needs to be convicted, he needs to be prosecuted. No, no.

It's very straightforward. I'll be straight. That's fascinating. I don't understand what could possibly be the argument against, what could possibly be the argument that Joe Biden couldn't pardon his son? So Brian. Of course he could. Of course he could. Of course he could. Of course he could.

But even if he did it for purely nepotistic, selfish reasons, you made the guy the president. That's his power. I don't see a way that he could be prosecuted for it. There's an interesting question here. I think that will come up, frankly. When we agree on whether this is a just use of legal power, what the law actually says is one thing. The other question I have for you, Brian, is what you make of the argument from the right, and this is where I brought Comey and Clinton into it, that for the last, let's say, 10 years, this has almost always gone

in one direction, the quote-unquote lawfare, which I know you don't use that word, but that the prosecutions have been almost exclusively of Trump allies. What do you make of that? They're criminals. I mean, people could say that Hillary Clinton is a criminal. And they would, and I would, yes. Sure, sure. But like the scale of the, you know, we've had 45 presidents.

But why does the scale matter? Why should the scale then matter? Because people who aren't inveterate criminals don't leave behind nearly as much evidence as Donald Trump has that he's guilty of crimes. Well, they destroy it. They bleach bit it. If they're Hillary Clinton, they bleach bit the evidence. I mean, if Jim Comey had made the opposite recommendation, if he had said, this is like a winner of a case and Loretta Lynch should try it, I suspect that the case would have gone forward at one point or another. Hillary Clinton would have lost the election more badly than she did.

There wouldn't have been any need for Donald Trump to threaten to lock her up. I don't think Jim Comey was doing Hillary Clinton a favor by intervening and saying she was extremely reckless, but there's no, no, like a convictable crime here. I feel like I'm in like in upside down land where we're saying like this only ever goes one way. Yes, Hillary Clinton wasn't tried for that, but she was the candidate who lost the election because the FBI director inserted himself in the election to say that she was careless with classified information. And then he did it again right before the election, and the election turned on 80,000 votes in three states,

and she lost. Yeah, and real, right? That's right. That's an abuse of law enforcement power to her like if they had indicted her then that was the that was the official reason that was the official reason that comey was fired it wasn't the actual reason but it's the official reason that comey was fired that was that justified to comey's fire yes later so i after. After demand, yes, ironic. Yeah, but I think there is still,

there's a different point here, which is that, I mean, not only Hillary Clinton, but Joe Biden's got a huge classified information problem. I mean, in my opinion, more dramatic than President Trump's. Yeah, he had classified documents in his garage, classified documents from when he was a senator. You don't just get to take documents out of a Senate. what did the republican special counsel say about that did what were the charges that he they said he was too infirm to be able to extract a conviction right like that these that's

not exactly a vote of confidence it doesn't say he didn't commit the crime it says i couldn't extract conviction in dc for a couple of reasons right but it doesn it doesn't mean... So you think that if Joe Biden loses the election, he'll be prosecuted for retaining those classified documents and he'll be... I wouldn't be surprised. Brian, do you think he should be? Brian, do you think he should be? Should Joe Biden, under the logic... No, under the read of the Her report, no, he shouldn't be tried. But if he is tried, I'm not going to sit here sweating it for Joe Biden that he might spend a lot of time in prison. Should Obama be tried for murder? So your position is that neither Biden nor Obama's cases rise to the level that they should be brought? I mean, if the Supreme Court says nothing a president does

in his official capacity carries any immunity with it, and some prosecutor wants to go after Barack Obama, I will probably argue that that prosecutor is engaging in a partisan form of corruption. But I'm not going to worry about Barack Obama becoming a political prisoner because he's going to beat the charges. Brian, I know you have to go in like one or two minutes, but let me finish with a question about that because I do worry about the Pandora's box that Will mentioned because you could imagine, let's say an Alabama prosecutor finds somebody who

was killed by an immigrant who came across the border in an unauthorized fashion and they bring a charge against Biden for complicity in that murder and they get a jury of they get a MAGA jury. Like, is that is that a thing that we should be worried about? I lose no sleep over it, personally. I mean, Alabama is much, I mean, I feel like it's silly to be, to be like so crude about it in partisan terms, because I think Joe Biden would be acquitted of charges along those lines, even in Alabama.

But if six of the jurors were MAGA, selected by the prosecutor because he had identified them as supporters of Donald Trump who wanted revenge on Joe Biden, Joe Biden would still get to pick the other six jurors. And Alabama is more Democratic than Manhattan is Republican, so he can hang the jury. I mean, it's just like, I am not like, it does not cause me to lose any sleep at night when people like Will come out lobbying these threats that if you put a criminal like Donald Trump in jail, we'll put a non-criminal like Joe Biden in jail. It just doesn't make me sweat. I know you've got to run to an appointment.

Really appreciate you joining us. Feel free to log off because I know you got to, I don't want you to be late for it. I appreciate the panel. I appreciate you guys having me on I know you got it. I don't want you to be late for it. I appreciate the panel. I appreciate you guys having me on. Thank you, Brian. All right, Will, do you have any final thoughts? Brian ran, obviously, so don't hit him too hard because he's not here to defend himself. And he didn't run on purpose. He told us he had a hard out. That's right. He had a hard out, in all fairness. We just went long because this was so fascinating. But any final thoughts on Brian's last answer there?

So I think that multi-party democracy doesn't really work unless the parties show each other a basic amount of honor. Like think about how the British Parliament works where you talk about the honorable gentleman or the honorable member opposite. And that's actually kind of important, right? These rules of decorum in the sense that the two parties need to be respected because there's a fundamental instability to any democracy, which is that if that honor dissipates, then one party decides, okay, well, we don't really think these election things are that good. We see you, the other party is entirely illegitimate

and we wanna take power. And these kind of like lawfare style prosecutions and reciprocal prosecutions that I think would occur in a world where there wasn't presidential immunity or we didn't stop this Pandora's box ultimately leads to some really bad outcomes. So I'm a big believer that I think it would be better if we all stopped trying to prosecute each other. But that said, I don't believe in the Republicans unilaterally disarming. There has to be a response to what they've done to Donald Trump.

So, you know, and then ultimately hope to get to a settlement eventually. My own view, Will, and I'm curious for your take on this, is that I would have preferred to see Trump prosecuted for the flagrant bribery level corruption, a lot of which flowed out of the Middle East and then flowed in through his family into the White House. But not all Middle East, but a lot of it flows through that postal hotel. And he's got all these people paying extraordinarily over market price to stay in his hotel nearby. But that, to me, cut too close to the bone for Democrats because while it was worse in degree than what is typical in Washington,

it was similar in kind. Clinton Foundation. Yeah, so if you come after that, you come after everything. All the Biden-China stuff, I mean, the Tony Bobulinski revelations, Obama lives in Martha's Vineyard. I mean, it seems that Donald Trump

has the credit of being the one politician whose net worth substantially decreased as a result of his presidency. So I don't know if he's the right person to look at for the beneficiary of corruption. Kushner went from near bankrupt because of his stupid 666 Fifth Avenue investment

to doing just fine. That's funny. It was a transfer of wealth. It's a generational transfer of wealth. There you go. Will Chamberlain is senior counsel at the Article 3 Project. Brian Buehler is the writer of the off message. There you go. Off message, Substack. Will, thank you so much for joining us. Thanks for having me. All right, Ryan, I don't think I agree 100% with either of them. And I thought that was a really clarifying debate because to your point, liberal Democrats are different from the sort of lock them all up, you know, perspective that, you know, when you gave that big thumbs up to prosecuting Obama

for murder, there's a difference on the left, a pretty important distinction on the left. And me, of course, prosecute Cheney and Bush for torture. On the other hand, I'm ambivalent about it because I agree with Will when he says you need executive power to be able to function. Yeah. Like we actually do, what is Trump's funny line? We got to have a country. Yeah. Like you actually we got to have a country yeah like you actually do have to have a government and you have to have a government that is able to take the laws and execute them mm-hmm and if you're if you do prosecute everybody in a partisan way you can always find crimes now I wish that yeah

we were we were less of a bloodthirsty empire. But basically any president of the United States over the last century is going to be responsible for an enormous amount of death. Show me a man and I'll show you. I'll find the crime. And then the idea that locking up those individuals would do anything about it undermines what we understand about the logic of imperial power. And so I think they were both like very honest representations of their side. And Will saying, with the we pronoun actually, like if, you know, Republicans, he was saying, we retake power. And obviously I don't include myself in that. But he was saying, we will,

we cannot unilaterally disarm. And that's the phrase, that is like a buzzword in conservative circles right now, is unilateral disarmament. Because they feel that the Department of Justice, the FBI has been weaponized against the right in the era of Trump, not necessarily pre-Trump, but in the era of Trump. And they'll point to, for example, informants at traditional Latin mass. That's something that happened in the FBI under the Biden administration in Virginia, pointing to the excessive prosecutions of anti-abortion protesters under the FACE Act and gone down the line. That's a really, really interesting perspective. And a lot of people on the right, I think, don't even say it aloud, unless you're in

like sort of conservative movements. So I assume they'll go after poor Hunter Biden. Yeah. Who are the other targets, do you think, that they'll actually go for? Probably Joe Biden because of all of this. And there's just a million different ways to go after any president. It doesn't matter who it is. And I think that's one of the things that I found that was hard to maintain from Brian's perspective is that Obama, Clinton, and who else are we talking? Oh, Biden. That none of the potential charges against them rise to the scale of the hush money porn star payment. Brian's point was interesting,

though, that he's like, go ahead, bring it. You're not going to get a jury to convict on any of this stuff. And I appreciate the honesty, honestly, because that's like a pun intended. But I didn't mean to say it that way. But it's a lot of people won't admit that they would say it's just ridiculous that you would even think to bring charges against anyone, blah, blah, blah. But go ahead, do it. Let the legal system do its work. All right, there we go. I also, not worrying about the Pandora's box being open, I just have a hard time with that too. I feel like it is open.

Yeah, I mean, Pandora, is Pandora inside the box or did Pandora build the box? It is her box. It's her box. What's inside it? Things you don't want to come out? Exactly. Okay, yeah. I don't think they're worried about Pandora coming out. Okay, because she built the box. What's inside it? Things you don't want to come out? Exactly. Okay. Yeah. I don't think they're worried about Pandora coming out. Okay. Because she built the box. Every single time we like end up.

Just more confused than when we started. Yeah. Anyway, I thought that was a great debate. So we'll be back next week with more. We're expecting, one of the reasons we set up this debate when we did is because we're expecting a potential ruling on the immunity case any day. So it's not just that the Bragg felony convictions came out last week, but also this immunity case, which has huge implications for all the other cases, could be decided by the Supreme Court anytime between now and early July. So stay tuned for that and stay tuned for what we come up with for next week. I don't think we have anything on the books yet. No, it'll be good. Don't worry. It'll be good. Yeah, we don't know what it is, but we know it'll be good. All right, see you then.

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