Judging Freedom - Donald Trump Indictment - Politics, Justice or Pandora_s Box_ - Arthur Aidala

Episode Date: March 31, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, March 31st, 2023. It's about five minutes after one in the afternoon here on the east coast of the United States. My guest is a longtime friend of mine and colleague, Arthur Idalla. Arthur is one of the premier criminal defense lawyers in New York City who has tried notorious and low-level criminal cases in the same courthouse where Donald Trump was indicted, including many high-profile cases. He was the chief defense counsel for the notorious Harvey Weinstein. Arthur is a great criminal defense lawyer and it's a privilege for me to pick his brain on what we can expect to happen in that very courthouse in Lower Manhattan. Arthur,

it's a pleasure. Welcome to the show. Number one, the pleasure is all mine. Number two, the honor is all mine because Judge Napolitano, there are many, many talking heads out there and legal commentators. But over the past 15 or 16 years that I became aware of who you are, whenever you're on, whenever there's a TV screen, I walk by. I always stop. I always listen. You know why? Because I always learn. You always say. Well, you're very kind. You're very kind that a lot of people are lined up now because they they want always learn. You always say something. Well, you're very kind that a lot of people are lined up now because they want to learn. So let's start with some basics. Our colleagues at CNN are reporting that this indictment has 30 counts. Now, what is the habit and custom in New York State Supreme? Would they charge a different count for each time he signed a check

or touched a piece of paper? Or do you think if this 30 count report is true, that this is going to cover far more alleged criminal behavior than the Stormy Daniels case? Well, let's back up for a second, Judge. As you know, we usually don't know anything about what's going on, right? I mean, this is so atypical, this whole case, this whole process. I never know what my guy is charged with in an indictment. I'll have the prosecutor call me. He'll tell me what the top count is, but then they usually don't tell you how many counts there are and what's in there. So this is all guesstimation that we're doing right now. But I think what you just said is true,

is that maybe every time he wrote a check check every time he touched a piece of paper so to speak or filed a document they're charging that as another crime i look at that judge as you need to make chicken salad or the chicken poop and this this case in my opinion is really chicken poop so they're trying to bolster it up you know if you go in front of a jury and like i have 30 counts against this guy it sounds sounds a lot better than, well, there's two counts. Right, right. It also gives the jury, and the government loves this, the opportunity to compromise. They only need a couple of convictions, and they can walk away crowing, particularly if all the counts carry the same type of punishment.

Have you ever heard of a case quite like this? Now, I'm not talking about who the defendant is or all the focus on the grand jury, which, as you say, is usually secret, and usually we don't know any of this that's going on. But in this respect, as I understand this, Alvin Bragg will attempt to persuade a trial jury, well, first a trial judge, that somehow he can either prosecute or use as the basis for his case an uncharged and unprosecuted federal crime in a state court to goose up a state misdemeanor into a state felony. Now, I've never heard of that before, but I didn't practice in that courthouse. I'm from this side of the Hudson River. What is your view on the viability of such an argument?

Judge, as you know, it's not just me. It's also my dad. My dad worked for Frank Hogan, the original Manhattan DA in there. And my law firm, I have two retired judges, none of us have really encountered, we can't remember a case, any of us, that this ever happened. There's the two aspects of it, taking a misdemeanor and jumping it to a felony, that's not really standard operating procedure. And then attaching that felony to a federal crime, it's just not done. It's such an overreach here. Well, we're really in virgin territory here without getting too much into the weeds. I mean, what does he need to prove on the federal crime? Does he need to prove guilt beyond a reasonable doubt as if Trump were charged with that? I mean, he can't be charged for the federal crime.

A, the feds decided not to prosecute because they decided they didn't believe Michael Cohen. B, the statute of limitations has run on it. So I don't know. I think Joe Takapina is going to have a very good argument to make, as you would if Trump had hired you, that this federal crime is irrelevant. The feds chose not to prosecute. And it can't be charged at this late date. Correct. And here's the little nuance.

You mentioned Joe Takapin. Full disclosure, Joe and I went to high school together. I'm the godfather to his- Now, wait a minute. Wait a minute. Wait a minute. I thought Joe was a lot older than you are. Being funny, he is.

He was actually a year ahead of me in school. I just lost my next dinner. In a very small school and we all knew each other pretty well. But the issue that Joe and I were discussing last night is if Trump paid the hush money and then reimbursed uh mr cohen for the purpose of his wife not finding out no crime having nothing to do with election uh it's not a crime and that's what takapini keeps telling me and you know we're we're tight and he's like idola he goes there's not a crime here okay if trump if trump reimbursed cohen with his personal funds and reported the totality of those funds as a campaign contribution, as you know, the candidate can contribute whatever he or she wants to his or her campaign.

No harm, no victim, no crime. The only way Alvin Bragg hits, so to speak, is if they can prove this was to save the campaign, not to save the marriage. And if it was corporate funds. I don't think there's any dispute that it was corporate funds. But how is he going to prove what was in Trump's mind? Am I more worried about Melania or Hillary? That's what it was. You're talking about October 2016.

It's two weeks after the Access Hollywood tapes. Which is he more worried about, Melania or Hillary? Well, as you know, Judge, a prosecutor is often faced with the predicament of proving someone's intent. Right. You know, the defendant doesn't have to testify, so they have to figure out a way by usually circumstantial evidence to prove someone's intent. So Ms. Hoffinger, who's one of the lead lawyers here, the prosecutor, she's going to stand up and say, ladies and gentlemen, use your common sense. After that Access Hollywood tape just came out, does he really need this coming out? Now this woman who is a pornography star, is that help person running for president of the United States? And think of his base, ladies and gentlemen of the jury.

His base is the evangelical Christians, middle America. Did they want to hear that the guy they elected, the people who despise Bill Clinton for what he did with Monica Lewinsky, did they want to vote for a guy now who had relations with a porn star? That's the prosecutor's argument. Right, right, right. Got it. Got it. Got it. Let's talk about, and this is a little, this is a little.

Well, I mean, it's a great argument that you're making. You're telling my audience the type of argument that they can expect if there is a trial. Now, you and I are going to have to study this indictment, as will Takapina, and then he'll come up with and he'll probably consult with you on the legal attacks on the indictment. But let's say that the infamous catch and kill is in there. Shall we explain what catch and kill is, which does not pertain to Stormy Daniels, but pertains to one or two of these other women? But I don't, we can explain what it is. Basically what it is, is they, these women would sell their story to a publication, hypothetically

like National Enquirer. They pay them for the story and then they kill the story. They just don't run the story. And then Trump reimburses National Enquirer because he basically, this is the government's argument, tricked the woman into taking money and signing a do not disclose. And then the story dies and Trump just dropped a few bucks for it. They're going to argue, I think, that that is some sort of a fraud. It probably is. Now, they may have a statute of limitations problem. Maybe they're going to argue he left New York. The statute stopped running. He lived in D.C. for four years. He moved to Florida. I can't keep track of where he lives. So, Judge, let's talk about that real quick with that argument you just made so people understand. There is a part of the law, and actually it's what's up on appeal in the Harvey

Weinstein case. There's a part of the law that if someone is out of the jurisdiction where the prosecutor is, here it's Manhattan, it holds the statute of limitations because they can't, quote unquote, get to that person. However, he just indicted Donald Trump when he's been in Florida for this whole time. So they just blew that out of the water. What's the difference if he's in Florida or in Washington, D.C. or New Jersey? If they were just this week, why couldn't they have done it last year? Cardinal McCarrick, who was recently indicted for a former Cardinal McCarrick, who was recently indicted for an alleged sexual assault that took place in Boston in 1974. Wow. And of course, he hasn't lived in Massachusetts since 1974. The trial judge accepted the tolling argument.

Tolling, my dear friends who are watching us, means that the statute of limitations stops running while the defendant is out of the jurisdiction. Arthur, you know me, I never accepted this argument when I was on the bench. Sometimes I was upheld by the appellate division. Most of the time I was reversed because most judges do uphold this argument. But I don't know how they're going to keep track of where Trump lived and when, if they're confronted with this kind of an argument, but I wouldn't be surprised. And this is why I've been advising last night on Newsmax on all morning. I've been advising our Republican friends, you know, don't attack this indictment until you've seen it.

30 counts. There may be something in there that we don't know about, whether it's the catch and kill, which is a cleaner, easier case to prove, or whether it's something else. You know, the originally drafted indictment by the two ex-Feds that Cy Vance had hired had a RICO count in there. RICO, Racketeer Influence Corrupt Organization count, in which they were going to argue that the Trump organization was essentially a criminal racket, and it owed to the government three times what it has earned the past 10 years. A devastating count if they could prove it. But my point is, we don't know how scattershot Alvin Bragg is or how focused he is in this indictment. So my question to you is, I know he's relatively new in this job. He was an assistant U.S. attorney up the block in the U.S. Attorney's Office. What's his reputation as a lawyer, as a thinker, as an ethical person?

Okay, that's a great question um i it's funny the i believe i only met him one time and uh i won't i won't be insulted by how he greeted me um because we had masks on and i introduced myself as arthur idalla and he's like oh yeah i had cases with you in the u.s attorney's office now i knew i didn't have cases with him he was referring to my father who he had cases with right right look when you meet him you must have had not only a mask but a hat on because your father's got the handlebar mustache and he's got hair like i do sorry i couldn't resist my friend that's but um he's known as being and look I know the chief assistant of the office I worked with her when I was a Brooklyn prosecutor she's like he's the nicest guy and he quote unquote he's very very smart but judge as you know there are people who know the law books in and out

there are people but brilliant doctors and they can't tie their shoes they don't know how to register their car at DMV. And I think he may fall into that category of someone who knows the law, who's read up on many cases. I believe he went to Harvard. But when it comes to politics and public relations, he is an absolute rookie. And two days ago or two months ago, let's say, he did not enjoy a very good reputation here in the city of New York. Primarily for reducing so many serious crimes. And now with President Trump, he's raising a BS crime into something that he's trying to make. Agreed, agreed.

Let's talk about what you would do if you were Takapina or what advice you may give him. As I see it, there's two battles here. One that Trump wants to fight, the PR battle, and obviously the legal battle. I mean, the court, if this case goes to trial, doesn't give a damn about the PR battle unless it's being waged to affect the jury pool. Now, the jury pool in New York County, which is Manhattan, is about two and a half million people. Is the government actually going to come in and say Trump's polluting the jury pool by blasting the case? We want him gagged? I mean, they have the ability to do so. You know, this judge that he's going to be arraigned in front of is the same judge that tried the Trump Corp case, you know, just a few months ago. Oh, boy, this is not a friend of Donald Trump.

No, but he's not. But his general reputation is being kind of a down the middle, more or less. He's not known as, oh, he's a real pro-prosecution judge or a real pro-defense judge. And, you know, there is a little bit of a um of a road map here the judge who tried the harvey weinstein case um did not would did not shoot down the middle at all he was so horrible against the defense team and obviously i was part of that team he's no longer a judge he did not get reappointed because of his behavior not only on that trial, but other trials. So Judge Merchant here is going to know the whole world is going to be watching.

And I think he's going to bend over backwards to make sure that Donald Trump gets a fair shake here. What about the PR campaign versus the battle in the courtroom? Do you try and restrain Trump and ask him not to post a picture of himself with a baseball bat next to the prosecutor, not to call the prosecutor an African-American legal scholar, an animal? I mean, do you try and restrain him from that? Or do you just let him go? Because he's Donald Trump. You and I know him. He's been a friend of mine for 35 years. He is utterly uncontrollable even if even if it's going to harm him legally he just he can't restrain himself i mean i could tell you mr tacapino was not very happy with that picture of the baseball bat um also as a lawyer you have to know what you can do and what you can't do

and what you cannot do i mean all you can do is you give your client your guidance. And I think I'm going to give Joe a compliment because he deserves it. I think Joe doing this massive media blitz, I think that has maybe scratched that little itch for Donald Trump that someone is out there on the stump really fighting for him in a powerful way all over the media. And I think, you know, President Trump feels, okay, someone is covering my back. What goes on in the future, whether there's a gag order, I don't know. Going back to the legal part, Judge, if I'm doing that arraignment on Tuesday, I'm telling my law firm here, we're working through the night, Tuesday night, because by Wednesday morning, after reading the indictment, I would want to file at the very least one motion having to do with the statute of limitations.

And probably a second motion dealing with what you said about can you bootstrap a federal crime to a state misdemeanor to create a felony. And I would actually be working on it now because we already know a pretty good idea of what's coming our way. Tell Joe that you know, Joe Takapina, you know of a seasoned legal expert who will testify as to whether or not this stuff is constitutional. As if they didn't need more reason for cameras in the courtroom. Will all this be televised? I would be shocked if it was. I think this judge is smart enough to know that would just create a total circus. And I mean, the prosecutor will probably say no.

The defense attorney will say no. The media will file a motion asking for the court. Is it up to the, in New Jersey, you know, where I sat, it's up to the discretion of the trial judge. Is it up to the discretion of the trial judge here? Correct. I wouldn't be shocked if there's a little birdie whispering in the ear of the trial judge from higher up in the office of court administration as to what they would like to see or what they would like not to see. But ultimately on paper, it's the discretion of the judge. Okay. Now maybe this is unfair. Does this reach a jury, Arthur Idalla, with all your experience in that courthouse, in that

courtroom, against that, in front of that judge, against those prosecutors standing next to high profile defendants? Donald Trump will be the ultimate decider of whether there's a plea in this case or not. If he can figure out a way to take a plea to get this out of his life, this distraction out of his life. And by the way, also save on legal fees, because I know he thinks that way also. And figure out how to turn that negative into a positive. Look, Judge, you know, no one's sending him to jail on this case. Not for what we know now. Okay. Not a jail case, not someone of his caliber, his age, lack of criminal history, his background, et cetera,

et cetera. So, and there's no one's looking for any money here, right? There's no victim. The government wasn't cheated out of money. There's not a little old lady who was cheated out of her account. So if they worked something out where he pled to some misdemeanor and he pays uh he gives a check to charity and he does one day in a soup kitchen you know okay let me ask the question a little differently does it reach this position meaning will it be dismissed before he has to make that decision? The two lawyers for Mr. Trump, Mr. Takapina and Ms. Susan Necklace, they're going to have to have case law that stands on all four, as you know what I mean. That shows really, really that what the DA in Manhattan did was totally unconstitutional or impermissible, I think, for a judge to have the intestinal fortitude to throw this out. You know better than I do. Totally dismissed the case. It's very, very difficult to dismiss an indictment. Now, the next time you see Joe,

he knows that I've been praising him on air, but I'm sure if you haven't told him this already, you will. Get paid up front, Joe. Off the record, I think that may have been taken care of, but hypothetically speaking. Arthur, I doubt it's a pleasure, my man. Maybe you'll come back and chat with us as the case progresses.

Pleasure's all mine, Judge. Whatever you need, anytime. Thank you. All the best. Where'sasure's all mine, Judge. Whatever you need, anytime. Thank you. All the best. Of course, we get it, my friends. If you like this, like and subscribe. Judge Napolitano for judging freedom.