Judging Freedom - All Trump Legal Challenges Now - and there_s a lot!

Episode Date: March 22, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, March 22nd, 2023. It's about seven minutes after 11 in the morning here on the East Coast of the United States. There's a lot of things happening with Donald Trump. My buddy and former colleague at Fox, Glenn Beck, always used to say, when someone's saying, watch my hand, watch my hand, watch my hand, you got to watch the other hand. So while we're all watching what's happening in New York City

and with the state grand jury impaneled by the district attorney Alvin Bragg to look into the hush money payments to Stormy Daniels and whether they were really illegal campaign contributions. There are other profound events happening, legal events, with respect to former President Trump. And all of this of course has a political fallout. So in New York right now, it's Wednesday morning. The grand jury is meeting as we speak. We don't know if they're deliberating, uh, whether or not to indict him. There doesn't seem to be any, there is no doubt in my mind that an indictment will come. There will be a vote by the grand jury. We won't know the number. This is not like a trial jury where it has to be unanimous.

There are 23 members of the grand jury. It only takes 13 to indict. The question is, what will he be indicted for? In my opinion, he'll be indicted for intentionally keeping false records of payments by calling the payment to Stormy Daniels through his lawyer, Michael Cohen, legal fees and for masking an illegal, a criminal payment. Sounds weird, but it is criminal for a corporation to give money to a campaign or to pay the debts of the campaign by having the corporate funds reimburse Cohen rather than personal funds. Then the grand jury will really have to decide, was this scheme set up by Michael Cohen, whereby money went from his bank,

which gave him a home equity loan on his apartment in New York, to a shell company in Delaware that he set up just for this purpose. So far, all legal. Wired to Stormy Daniels' lawyer in California, absolutely legal. He took his fee and gave the remainder to Stormy Daniels, all legal. She, on the trunk of a car in the parking lot of a warehouse in which was a studio where she was producing and directing pornography, signed the nondisclosure agreement. So far, all legal. Then, this is October of 16. In January of 16, when Donald Trump is the president of the United States, he signed 13 checks, each for $10,000, each on the checkbook of the Trump organization, his family-owned corporation, each dated the first of the month for 13 months and sent those checks to Michael

Cohen. That's the problem. That was a corporation reimbursing something which might have been a campaign obligation. So the grand jury has to decide, did they pay this money to Stormy Daniels to save Donald Trump's marriage to Melania Trump, to give him peace of mind, or to save his campaign for president? All of this happened in the middle of October of 2016, right after the Access Hollywood tapes where he was caught off mic, boasting about his rather crude approach to having sex with women that he just met. The whole world, including Donald Trump, thought Hillary was going to beat him. The last thing he needed was Stormy Daniels holding a press conference saying, hey, I had sex with him and he promised to put me on The Apprentice and he never came through with the promise. That's what all this is about.

If it was a campaign debt, it was criminal. And he'll be indicted for that. If it was not a campaign debt and they indict him for that, then they're going to have to prove that it was criminal. And it depends on whether the jury believes him. Bottom line is, expect an indictment of Donald Trump in the next two or three days for this stormy Daniel stuff, for the deceptive bookkeeping, and for the corporate payment of a campaign debt, which elevates the deceptive bookkeeping

from a misdemeanor to a felony. Misdemeanor, maximum time in jail, less than a year. Felony, in this case, is five years in jail. If this is just a misdemeanor, it's a slap on the wrist and it's a fine. If it's a felony, he's exposed to jail time. Okay, all that's going on in New York. While that's going on in New York, there are profound things happening in Washington, D.C. In Washington, D.C., the special counsel, Jack Smith, appointed by Attorney General Merrick Garland, whatever you think of Merrick Garland, Jack Smith is a superb, professional, by-the-book career prosecutor. He's not a political hack. His job is to determine, is there enough evidence to indict Donald Trump for having instigated January 6th? Is there enough evidence to indict Donald

Trump on the knowing possession of national defense secrets and hiding them from the FBI on the Mar-a-Lago documents. Jack Smith persuaded the grand jury in Washington, D.C., obviously a different grand jury, it's a federal grand jury in Washington, D.C., to issue a subpoena to Evan Corcoran. Who's Evan Corcoran? Evan Corcoran is, was, and is, and remains one of Donald Trump's lawyers. Excuse me. Evan Corcoran says, attorney-client privilege.

I'm not going to talk to you or answer questions before a grand jury about my client. They bring him before the grand jury. He invokes the attorney-client privilege, as he should. Then Jack Smith makes a motion before the judge who hears applications involving this grand jury to pierce the attorney-client privilege. Well, how can you pierce the attorney- client privilege? If a client comes into your office and you're a lawyer and he says, I robbed a bank, but here are my defenses. You can defend the guy. But if the client comes into your office and says, I want to rob a bank, tell me what my defenses could be. And you answer that question, that conversation is not privileged. The first conversation, I did rob the bank,

tell me what my defenses are. That's privileged. The second conversation, I want to rob the bank, tell me what my defenses will be, that is not privileged. That's called the crime fraud exception. That basically means that the client used the legal advice of the lawyer to perpetrate a crime or to perpetrate a fraud. That's the argument that Jack Smith, the special counsel, made before a federal judge in Washington, D.C. She held hearings. All this is secret. All this grand jury stuff is secret. We only know about any of it because people have leaked it. The leaks are great for my business because I learn about it and I get to explain it to you. The leaks are terrible for the people involved because grand jury secrecy is supposed to protect people that are not indicted. Like they're going to investigate

Trump and we really want to protect his reputation. Everything's coming out. The whole purpose of grand jury secrecy is in case somebody's not indicted. Theoretically, the public never knew that they were being investigated. Not so with Donald Trump. Everything leaks out. It's just too much of a temptation for everybody. When witnesses leak, that's not a leak. Witnesses can tell the press and anybody what they heard in a grand jury. But when a document is leaked, that's wrong. So this judge in D.C. held a trial, a mini trial without a jury with her, with Evan Corcoran there, with a lawyer for Evan Corcoran, with the prosecutors there and with their witnesses. And the issue was, did Donald Trump perpetrate a crime or a fraud using legal advice he got from Evan Corcoran. And the judge found that he did. Now, how do we know this? Well, this judge wrote an opinion, a secret opinion

that only pertains to Mr. Corcoran and his lawyers and the prosecutors and their team. Somebody, probably in the prosecutor's office, leaked a portion of the opinion to ABC News about 10 o'clock last night. ABC posted what was leaked to them. Those of us, your humble correspondent among them, who monitor these things about 18 or 19 hours a day, saw it, read it, and decided this was worth discussing. What did this judge found? What did this judge found? What did this judge find? She found that whatever legal advice Evan Corcoran gave Donald Trump, he committed a crime. Now, Trump was not in the courtroom. Trump was not represented in the courtroom. This is not a

finding of guilt. This is a finding that the advice that Evan Corcoran gave to Donald Trump was used for criminal purposes. Therefore, whatever that advice was, whatever Corcoran said to Trump and Trump said to Corcoran is not privileged and must be discussed under oath by Corcoran before the grand jury. OK, that was the ruling last night. At nine o'clock this morning, Trump's lawyers, not Corcoran's lawyers, Trump's lawyers filed an application before the United States Court of Appeals for the District of Columbia Circuit. That's the court to which decisions by federal judges like this judge who ruled that Trump committed a crime with Corcoran's legal advice are appealed. And that court stayed, stopped the effect of the trial court decision for two days and ordered Trump's people to file briefs by six o'clock tonight. And are you ready for this?

The government to answer by midnight tonight. So it think 1159 tonight, midnight is actually the beginning of tomorrow, just six hours later, so that the court can rule tomorrow. Man, I have ruled quickly in my judicial career, but I never heard of an appellate court moving this quickly because it involves three judges, which means 12 law clerks and many other people, but they're all gearing up to rule on this very quickly. Trump wants to argue that the trial judge was wrong, that he did not commit a crime or perpetrate a fraud on the basis of what Evan Corcoran told him, and the government wants to argue that the trial judge was right. The trial judge, of course, has the advantage here because

she took testimony. She heard Corcoran testify. She heard witnesses testify. She saw them cross-examined. The appellate court clerks will read the transcripts of that trial. The clerks and the judges will read the decision that this trial judge, this federal district court judge, wrote, the secret decision, parts of which were leaked to ABC News. And then the appeals court will decide. I would imagine whoever loses will go to the Supreme Court. But this is not typically something that the Supreme Court gets involved in. My opinion, the trial judge will be upheld by the appellate court.

Evan Corcoran will be ordered to testify. Now, there's an interesting part of the decision. Again, just snippets of it were released to ABC News. I wish the whole thing were released and I could have read it. There's an interesting part of the decision which found that Donald Trump lied to Evan Corcoran. Now, that's the worst thing a client can do is to lie to your lawyer. You don't lie to a doctor about what's troubling you. You don't lie to a lawyer. Could cause the doctor to prescribe the wrong medication, could cause the lawyer to pursue the wrong relief. But with respect to hiding documents at Mar-a-Lago, you remember Trump complaining, they went to Melania's dress closet.

They moved her shoes. They did. They did both because they had an inside witness who said, I was told to carry boxes and put them behind Mrs. Trump's shoes in her personal clothes closet. What did they find in those boxes? National defense information. What did Donald Trump tell his lawyers? I don't know. But whatever it is, the trial judge found Trump materially misled or lied to his lawyers. So when the lawyers told the feds, we've looked through the house and we're satisfied that all national defense information and classified documents have been surrendered they got that information from according to the

trial judge in dc donald trump and according to the trial judge in dc untrue meaning time for a search warrant which of course is what happened. The statement from the lawyers to the feds precedes the search warrant. It was when they concluded from the testimony of this guy who told them where he put the box in Melania's closet. It was when they concluded from that, that the lawyers weren't telling the truth that they went and they got a search warrant. Are they going to prosecute the lawyers? No. The lawyers told apparently what they thought was the truth was their own client, the former president of the United States, who, in my opinion, foolishly, idiotically lied to his own lawyers. Not my finding, the finding of the trial judge in this case. So we will know probably by tomorrow,

Thursday at this time, if Evan Corcoran is compelled to testify before a grand jury. And if and when he is, I'm pretty sure it will be. Yes, he will be ordered to testify. You'll see other Trump lawyers testifying. The kinky part of this is Corcoran's not the former lawyer for Trump. Corcoran still represents Trump. They still communicate on a daily basis about Trump's legal woes emanating from the search of Mar-a-Lago. And Corcoran knows that whatever he tells Trump and Trump tells him, he's going to have to tell a grand jury. More as we get it. A lot more as we get it.

As soon as we get it. If you like these pop-ups where I do my best to explain these complex issues, like and subscribe. I don't do this with joy. I'm generally a happy person about life. Trump has been my friend for 35 years. We spent a lot of time on the phone together when he was in the White House and a lot of time on air together when he was at Fox and Friends. And I think many of you know his sister, a former judge in New Jersey. She was a federal judge at the same time, roughly, that I was a trial judge, has been a longtime friend of mine. So

it gives me no joy to predict that he's going to be indicted, to articulate that he broke the law, to pronounce that a federal judge found that he committed fraud or a crime, in this case, a crime. But my job is to explain this stuff honestly and candidly to you, my listening audience. And you will get nothing short of that from me. More as we get it, Judge Napolitano, judging freedom.