Judging Freedom - Donald Trump Indicted on 2020 Election Interference

Episode Date: August 1, 2023

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gentle guidance and encouragement to create these incredible changes for yourself and see what good can come from them. Trust me, listening on Audible can help you reach the goals you set for yourself. Start listening today when you sign up for a free 30-day trial at audible.com slash wonderyca. That's audible.com slash wonderyca. That's audible.com slash wonderyca. Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, August 1st, 2023. Welcome to a special evening edition of Judging Freedom. I will analyze the indictment filed against former President Donald Trump. This is the third such indictment since he left office, continuing this unprecedented string of governments pursuing him. First, some background. You all know that I have known Donald Trump for 35 years, and we have been friends. We have socialized together numerous times. He has confided in me,

and I have confided in him. I am taking off that hat of friendship. I'm not wearing a political hat. I'm wearing my hat as a judge, as a legal scholar, as a lawyer, as a person who will analyze the law, analyze the events, analyze and explain the procedures as best I can and as best I understand them. We all know that Donald Trump was indicted by a grand jury in New York City, alleging false of the Espionage Act by the unlawful retention of national security and national defense information, which he took with him from the White House. That indictment was eventually superseded by another indictment. So, so far before today, two indictments against him, the one in New York for falsifying bookkeeping records and the one in Florida for the unlawful knowing retention

of not classified but national security documents and efforts to prevent the government from getting those documents by directing those who work for him to hide them. You all know by now, I think, how a grand jury works. There are 23 members of a grand jury. They meet in secret. The reason for the secrecy, this is a 600-year-old procedure going back to Great Britain and followed when we became an independent country here. The reason for the secrecy is if a person is not indicted, then theoretically no one knows that the grand jury investigated them. I say theoretically because we live in a world of all kinds of leaks. I don't even know how this indictment got out. When the indictment came out today, it was sealed and ordered sealed by a federal judge in Washington, D.C. Within 15 minutes, it was on the internet.

Okay, there are leaks all the time. But the purpose of the grand jury meeting in secret is to protect the identity of someone not indicted. There's no judge in the grand jury room. The judge picks the grand jurors to make sure they have no bias, no prejudice, no involvement in the case, no interest in the outcome, no familiarity with the facts. And once he or she is satisfied, there are 23 such people in that category, they're on the grand jury. Then the government begins presenting evidence to the grand jury. All sorts of witnesses are paraded in and the government lawyers examine them under oath, and then the grand jurors get to ask questions. When there are no more questions, the person leaves. That person is free to testify,

excuse me, to reveal in public what they said before the grand jury. The grand jurors are not free to reveal this. The government lawyers in jurors are not free to reveal this. The government lawyers in the room are not free to reveal it. The various government clerks that are in the room or that handle the grand jury documents are not permitted to reveal it because of that requirement of secrecy. Most of the witnesses who testified before the grand jury in this case had been interviewed by the FBI before their testimony. A few refused to be interviewed by the FBI. One of them was Mike Pence, the former vice president of the United States. So he was called before the grand jury cold, meaning the prosecutors who called him did not know for sure what he was going to say. That happened with a couple of other witnesses as well. After all those witnesses

testify, the prosecutors then suggest to the grand jury what they think the crimes were. Then the prosecutors write up the indictment. Here's the indictment right here. It's 45 pages, double-spaced, and the grand jurors are given a day or two to read it and study it. Then the prosecutors write up the indictment. Here's the indictment right here. It's 45 pages, double spaced. And the grand jurors are given a day or two to read it and study it. If they like it, if they agree with it, they vote on it. If there are issues with it, there's debate. There's conversation amongst the grand jurors. Once it's time for a vote, it only takes 12 votes to indict.

Most indictments are unanimous. We don't know what the vote was in this case. It was probably voted on today as the indictment is dated and signed today. It's signed by Jack Smith. It's also signed by the foreperson of the grand jury. That's the person that presides over the grand jury when there are no federal prosecutors in the room. That person's signature is redacted, blacked out, so you can't see who it is. Okay, what is the former president charged with? So there's four crimes here. Three are crimes of conspiracy. One is a crime that the government says actually took place. What is a conspiracy?

A conspiracy is an agreement by two or more people to achieve a criminal end, to commit a crime. But because they did not succeed in committing the crime, the charge is conspiracy, the agreement. The idea of conspirators meeting in a dark room with a bare light bulb over them and making notes on their conspiracy is just from Hollywood. In reality, conspirators don't always meet together. They don't even always know each other. They just have a common purpose

and feed common information to them. And then at least one of them takes at least one step in furtherance of the conspiracy. I myself, when I was on the bench as a legal scholar, as a professor of law, as a commentator on Fox News, have argued against conspiracy crimes. I think they're profoundly unconstitutional because they punish thought. The most famous simple attack on conspiracy is from Clarence Darrow summing up to a jury. Now, this is 150 years going to go to the penitentiary. A small fine will do. But if two boys conspire, agree to steal a dime, and then don't steal it, they are candidates for the penitentiary.

What kind of a country does this, he asks the jury. One of the jurors shouts back, ours. At that point, he knew he was going to get an acquittal. But he's quite correct, because the conspirators are those who agreed to commit a crime, but for a variety of reasons, didn't succeed in committing it. So they're basically being punished for their agreements, for their thoughts. That's three of the charges against Donald Trump. What are they? The first is conspiracy to defraud the United States, to deny the United States the benefit of its presidential election. The second is conspiracy to obstruct a congressional function, that is, an agreement intended, if it had carried out, to prevent the Congress from counting the electoral votes. The third is a conspiracy against the right to vote.

That is a conspiracy against all the voters in the states that the Trump people had targeted, Arizona, Michigan, Wisconsin, Pennsylvania. The fourth charge against him is obstruction of justice, actually preventing the counting of the votes, which because of the mob on the floor of the House of Representatives, where the House and the Senate were meeting in joint session presided over by the Vice President Mike Pence. They were forced to flee the Capitol building. So that is conspiracy as well as an accomplished crime, obstructing a governmental function. Of course, the governmental function was eventually performed later that night after the building had been cleared. The Congress came back into the House chamber. They met, they counted the electoral votes. Mike Pence did the actual counting

and the vote on the floor was to accept the election of Joe Biden. At that point, he was for the first time officially, legally, and constitutionally proclaimed the president-elect of the United States. So why does the government charge a variety of different crimes, and why these thought crimes? Well, the thought crimes are easier to prove because the government does not have to prove harm. Normally, the government has to prove harm, like in the obstruction charge, the harm is that members of Congress were fearful of their own safety. So they were actually harmed. The government's process was delayed. It took more time and cost more money to count the ballots. That's the harm there.

But conspiracy charges do not require the government to prove harm. It only needs to prove the agreement and at least one step taken in furtherance of the agreement by at least one of the conspirators. Who are these conspirators? I'm smiling because the indictment does not name them. Now, I can figure out who two of them are. But first, there are six co-conspirators, people who interacted with Donald Trump in the White House, in Bedminster, New Jersey, at his club, at Mar-a-Lago, at his home and club there. These co-conspirators agreed, according to the indictment, agreed with Trump to do all they could unlawfully to prevent Joe Biden from becoming president of the United States. Now, how do we know it's unlawful? Well, if the co-conspirators and Donald Trump did what the government says

they did, it was unlawful. What is the evidence against Donald Trump? Just like in the Mar-a-Lago case, where the evidence against him is his own words on tape and the words of those closest to him, the government has crafted an indictment remarkably similar. There are many people that interacted with Trump, including Mike Pence, who took down verbatim what Trump said, pardon me, and put it in their notes. So it is Trump's own words, doubting what he said publicly, referring to theories by Rudy Giuliani and John Eastman as crazy in private, even though he embraced those theories in public, recognizing in private that he actually lost the election, even though in public maintaining that he did. All of this comes from the six co-conspirators who, from the description of them, are the people

closest to Donald Trump. Co-conspirator number one is Rudy Giuliani. Co-conspirator number four is a fellow by the name of Jeff Clark, a former high-ranking official of the Justice Department, whom Trump attempted to appoint acting attorney general after Bill Barr resigned. This is around Christmas time of 2020, but Trump was talked out of it. The other co-conspirators are not named, and I'm not able to figure out who they are just from the indictment. I'm sure by tomorrow, our friends in the press at Fox News, at the Washington Post, at the New York Times, at Newsmax will know exactly, will tell us exactly who the co-conspirators are. Why aren't the co-conspirators named? Why aren't they indicted if they participated in these conspiracies? This is very, the answer to this is very bad news

for Donald Trump, because to a person, they are providing what's known as state's evidence, evidence for the government against Trump. Every one of these co-conspirators testified, was interviewed by the FBI. Every one of these co-conspirators testified before the grand jury. Every one of these co-conspirators, either because they thought it was the right thing to do, or they wanted to save their own hides, testified against Donald Trump. These are people he trusted, people he valued, people he interacted with. They are now his own worst enemies. Here's a clip of Jack Smith, the special counsel who was in charge of these investigations, both Mar-a-Lago and this one, speaking in a press room in the Justice Department just about two hours ago. The attack on our nation's capital on January 6th, 2021,

was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies, lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation's process of collecting, counting and certifying the results of the presidential election. One of you has just asked me a very good question. Is Vice President Pence a co-conspirator? Someone named Andrew P. Of course, I'm also Andrew P. This is not me. This is one of our viewers. Vice President Pence is not a co-conspirator, according to this indictment. Vice President Pence is a victim of the obstruction of justice because he was terrified for his own life when the Secret Service had to whisk him out of the House of Representatives chamber and guard him in a closet in the basement of the Capitol building. Here is John Lauro. John is a superb criminal defense lawyer who now appears to be

Trump's chief counsel in this case. Here he is on Fox News just about an hour ago. For the first time in American history, a former president is being prosecuted by a political opponent who wields the power of the criminal justice system for what he believed in and the policies and the political speech that he carried out as president. It affects not just Donald Trump. It affects every American who now realizes that the First Amendment is under assault.

We now have a political incumbent who is attacking Americans for their beliefs, attacking Americans for their speech and attacking Americans for their speech, and attacking Americans for their politics. Very powerful argument, but one that the court will not hear because it is a political argument. What that argument basically is, and I applaud John Lauro, is for jury nullification. What that argument basically says, if he's allowed to make it to a jury is he shouldn't have been charged because he had the right to do what he did, even though on its face, much of it appears criminal. Here's President Trump on January 6th before the crowd went to the Capitol. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

I thought and a lot of us thought that Trump was going to be charged with inciting an insurrection. When I thought that, I published the piece arguing that his speech is protected by the First Amendment. Now, you just heard a very, very tiny snippet of that speech. It goes on for about 45 minutes. It is all protected speech. Jack Smith and his prosecutors apparently agree with that argument. The former president was not charged with inciting an insurrection. He was not charged for anything he said in that speech. Here is the former president, not tonight, but when he was ranting against Jack Smith and the Justice Department because of the indictment over the Mar-a-Lago documents.

Idea, get deranged Jack Smith to take just a tiny portion of the millions of dollars he's spending illegally targeting me and let him go to the White House with his army of thugs to solve the cocaine dilemma. I already believe I know the answer, and so do plenty of other people. But they spend millions of dollars, probably 15 to 20, and then you add the Mueller report, you add all of the other, they're probably up to $100 and then you add the Mueller report, you add all of the other, they're probably up to $100 million targeting

and going after me because I'm protecting you and I love you and I love our country. That argument, I'm protecting you, I love you, and I love our country, as you all know, is resonating quite well with Republican primary voters, because every time Donald Trump is indicted, and this is counterintuitive, but every time Donald Trump is indicted, his poll numbers amongst likely Republican primary voters go up, and the poll numbers of Ron DeSantis and Chris Christie and Nikki Haley and Tim Scott and Asa Hutchinson and the others go down. This is an act of defiance by

Republican primary voters who obviously agree with the president and agree with his lawyer that this is a political prosecution. However, having read all this in the past hour, I can tell you the charges are very serious. The allegations are well grounded in the law. And as I said earlier, just like for the Mar-a-Lago indictment, the government has used Trump's own words and the words of those closest to him against him. In the Mar-a-Lago indictment, much of it is what Trump said on tape, not a surveillance tape, but a tape he knew was being made. And much of it is what he said to his own lawyers after the government persuaded the court that there was no attorney-client privilege because Trump had lied and deceived the court found his own lawyers. In this case, nearly all of the evidence against him comes from the co-conspirators,

the ones who have become government witnesses, and that's the only reason they weren't invited. Now, what will happen to them? Well, they're on tenterhooks. If they don't continue to cooperate with the government, and if they don't testify as the government wants them to, they won't be co-conspirators, they'll be co-defendants. With the exception of one of them, all is a lawyer, and each understands how this system works. I'm going to read this again before I go to sleep tonight. I'll be on Newsmax tomorrow explaining it as well. I think it's around 8.10 or 8.15 in the morning Eastern time. More comments will be coming out, more legal analysis, more analysis from me, and as always, more as we get it. We haven't forgotten Ukraine, Colonel McGregor, Scott Ritter coming up in the next two days.

Judge Napolitano for Judging Freedom. Thanks for watching!